[Federal Register: August 11, 2006 (Volume 71, Number 155)]
[Proposed Rules]
[Page 46259-46303]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au06-30]
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Part II
Department of Defense
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Department of the Army
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32 CFR Part 536
Claims Against the United States; Proposed Rule
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DEPARTMENT OF DEFENSE
Department of the Army
32 CFR Part 536
RIN 0702-AA54
[Docket No. USA-2006-0022]
Claims Against the United States
AGENCY: Department of the Army, DOD.
ACTION: Proposed rule; request for comments.
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SUMMARY: The Department of the Army proposes to amend its regulations
to reflect a substantial revision of AR 27-20, an Army publication
which governs the processing of claims worldwide. The purpose of this
revision is to make AR 27-20 clearer and easier to use, after years of
piecemeal amendments. This rewrite also ensures that AR 27-20 is in
keeping with current statutes, legal opinions and Department of Justice
guidance pertaining to claims processing. This updated rule will
expedite payment of meritorious claims throughout the world.
DATES: Comments submitted on or before October 10, 2006 will be
considered.
ADDRESSES: You may submit comments, identified by ``32 CFR part 536,
Docket No. USA-2006-0022 and or RIN 0702-AA54'' in the subject line, by
any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Federal Docket Management System Office, 1160
Defense Pentagon, Washington, DC 20301-1160.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) for this
Federal Register document. The general policy for comments and other
submissions from members of the public is to make these submissions
available for public viewing on the Internet at http://www.regulations.gov
as they are received without change, including any
personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: George Westerbeke (301) 677-7009,
x220.
SUPPLEMENTARY INFORMATION:
A. Background
This rule was previously published. The Administrative Procedure
Act, as amended by the Freedom of Information Act requires that certain
policies and procedures and other information concerning the Department
of the Army be published in the Federal Register. The policies and
procedures covered by this regulation fall into that category.
AR 27-20 and its companion DA Pam 27-162 will be available on the
Web site of the U.S. Army Publications Directorate, http://www.apd.army.mil
, within a few months of the date of this Federal
Register publication of 32 CFR part 536. Users are encouraged to
consult the online versions, whose structure and paragraph numbering
are comparable.
B. Regulatory Flexibility Act
The Department of the Army has determined that the Regulatory
Flexibility Act does not apply because the proposed rule does not have
a significant economic impact on a substantial number of small entities
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612.
C. Unfunded Mandates Reform Act
The Department of the Army has determined that the Unfunded
Mandates Reform Act does not apply because the proposed rule does not
include a mandate that may result in estimated costs to State, local or
tribal governments in the aggregate, or the private sector, of $100
million or more.
D. National Environmental Policy Act
The Department of the Army has determined that the National
Environmental Policy Act does not apply because the proposed rule does
not have an adverse impact on the environment.
E. Paperwork Reduction Act
The Department of the Army has determined that the Paperwork
Reduction Act does not apply because the proposed rule does not involve
collection of information from the public.
F. Executive Order 12630 (Government Actions and Interference With
Constitutionally Protected Property Rights)
The Department of the Army has determined that Executive Order
12630 does not apply because the proposed rule does not impair private
property rights.
G. Executive Order 12866 (Regulatory Planning and Review)
The Department of the Army has determined that according to the
criteria defined in Executive Order 12866 this proposed rule is not a
significant regulatory action. As such, the proposed rule is not
subject to Office of Management and Budget review under section 6(a)(3)
of the Executive Order.
H. Executive Order 13045 (Protection of Children From Environmental
Health Risk and Safety Risks)
The Department of the Army has determined that according to the
criteria defined in Executive Order 13045 this proposed rule does not
apply.
I. Executive Order 13132 (Federalism)
The Department of the Army has determined that according to the
criteria defined in Executive Order 13132 this proposed rule does not
apply because it will not have a substantial effect on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government.
Col. Dale Woodling,
Commander, United States Army Claims Service.
List of Subjects in 32 CFR Part 536
Claims, Government employees, Military personnel.
For reasons stated in the preamble the Department of the Army
proposes to revise 32 CFR part 536 to read as follows:
PART 536--CLAIMS AGAINST THE UNITED STATES
Subpart A--The Army Claims System
Sec.
536.1 Purpose of the Army Claims System.
536.2 Claims authorities.
536.3 Command and organizational relationships.
536.4 Designation of claims attorneys.
536.5 The Judge Advocate General.
536.6 The Army claims mission.
536.7 Responsibilities of the Commander USARCS.
536.8 Responsibilities and operations of command claims services.
536.9 Responsibilities and operations of area claims offices.
536.10 Responsibilities and operations of claims processing offices.
536.11 Chief of Engineers.
536.12 Commanding General, U.S. Army Medical Command.
536.13 Chief, National Guard Bureau.
536.14 Commanders of major Army commands.
536.15 Claims policies.
536.16 Release of information policies.
536.17 Single-service claims responsibility (DODD 5515.8 and DODD
5515.9).
536.18 Cross-servicing of claims.
536.19 Disaster claims planning.
536.20 Claims assistance visits.
536.21 Annual claims award.
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Subpart B--Investigation and Processing of Claims
536.22 Claims investigative responsibility--general.
536.23 Identifying claims incidents both for and against the
government.
536.24 Delegation of investigative responsibility.
536.25 Procedures for accepting claims.
536.26 Identification of a proper claim.
536.27 Identification of a proper claimant.
536.28 Claims acknowledgment.
536.29 Revision of filed claims.
536.30 Action upon receipt of claim.
536.31 Opening claim files.
536.32 Transfer of claims among armed services branches.
536.33 Use of small claims procedures.
536.34 Determination of correct statute.
536.35 Unique issues related to environmental claims.
536.36 Related remedies.
536.37 Importance of the claims investigation.
536.38 Elements of the investigation.
536.39 Use of experts, consultants and appraisers.
536.40 Conducting the investigation.
536.41 Determination of liability--generally.
536.42 Constitutional torts.
536.43 Incident to service.
536.44 FECA and LSHWCA claims exclusions.
536.45 Statutory exceptions.
536.46 Other exclusions.
536.47 Statute of limitations.
536.48 Federal employee requirement.
536.49 Scope of employment requirement.
536.50 Determination of damages--applicable law.
536.51 Collateral source rule.
536.52 Subrogation.
536.53 Evaluation of claims--general rules and guidelines.
536.54 Joint tortfeasors.
536.55 Structured settlements.
536.56 Negotiations--purpose and extent.
536.57 Who should negotiate.
536.58 Settlement negotiations with unrepresented claimants.
536.59 Settlement or approval authority.
536.60 Splitting property damage and personal injury claims.
536.61 Advance payments.
536.62 Action memorandums.
536.63 Settlement agreements.
536.64 Final offers.
536.65 Denial notice 536.66 The ``Parker'' denial.
536.67 Mailing procedures.
536.68 Appeal or reconsideration.
536.69 Retention of file.
536.70 Preparation and forwarding of payment vouchers.
536.71 Fund sources.
536.72 Finality of settlement.
Subpart C--Claims Cognizable Under the Military Claims Act
536.73 Statutory authority for the Military Claims Act.
536.74 Scope for claims under the Military Claims Act.
536.75 Claims payable under the Military Claims Act.
536.76 Claims not payable under the Military Claims Act.
536.77 Applicable law for claims under the Military Claims Act.
536.78 Settlement authority for claims under the Military Claims
Act.
536.79 Action on appeal under the Military Claims Act.
536.80 Payment of costs, settlements, and judgments related to
certain medical malpractice claims.
536.81 Payment of costs, settlements, and judgments related to
certain legal malpractice claims.
536.82 Reopening an MCA claim after final action by a settlement
authority.
Subpart D--Claims Cognizable Under the Federal Tort Claims Act
536.83 Statutory authority for the Federal Tort Claims Act.
536.84 Scope for claims under the Federal Tort Claims Act .
536.85 Claims payable under the Federal Tort Claims Act.
536.86 Claims not payable under the Federal Tort Claims Act.
536.87 Applicable law for claims under the Federal Tort Claims Act.
536.88 Settlement authority for claims under the Federal Tort Claims
Act.
536.89 Reconsideration of Federal Tort Claims Act claims.
Subpart E--Claims Cognizable Under the Non-Scope Claims Act
536.90 Statutory authority for the Non-Scope Claims Act.
536.91 Scope for claims under the Non-Scope Claims Act.
536.92 Claims payable under the Non-Scope Claims Act.
536.93 Claims not payable under the Non-Scope Claims Act.
536.94 Settlement authority for claims under the Non-Scope Claims
Act.
536.95 Reconsideration of Non-Scope Claims Act claims.
Subpart F--Claims Cognizable Under the National Guard Claims Act
536.96 Statutory authority for the National Guard Claims Act.
536.97 Scope for claims under the National Guard Claims Act.
536.98 Claims payable under the National Guard Claims Act.
536.99 Claims not payable under the National Guard Claims Act.
536.100 Applicable law for claims under the National Guard Claims
Act.
536.101 Settlement authority for claims under the National Guard
Claims Act.
536.102 Actions on appeal under the National Guard Claims Act.
Subpart G--Claims Cognizable Under International Agreements
536.103 Statutory authority for claims cognizable under
international claims agreements.
536.104 Current agreements in force.
536.105 Responsibilities generally/international agreements claims.
536.106 Definitions for international agreements claims.
536.107 Scope for international agreements claims arising in the
United States.
536.108 Claims payable under international agreements (for those
arising in the United States).
536.109 Claims not payable under international agreements (for those
arising in the United States).
536.110 Notification of incidents arising under international
agreements (for claims arising in the United States).
536.111 Investigation of claims arising under international
agreements (for those claims arising in the United States).
536.112 Settlement authority for claims arising under international
agreements (for those claims arising in the United States).
536.113 Assistance to foreign forces for claims arising under
international agreements (as to claims arising in the United
States).
536.114 Scope for claims arising overseas under international
agreements.
536.115 Claims procedures for claims arising overseas under
international agreements.
536.116 Responsibilities as to claims arising overseas under
international agreements.
Subpart H--Maritime Claims
536.117 Statutory authority for maritime claims.
536.118 Related statutes for maritime claims.
536.119 Scope for maritime claims.
536.120 Claims payable as maritime claims.
536.121 Claims not payable as maritime claims.
536.122 Limitation of settlement of maritime claims.
536.123 Limitation of liability for maritime claims.
536.124 Settlement authority for maritime claims.
Subpart I--Claims Cognizable Under Article 139, Uniform Code of
Military Justice
536.125 Statutory authority for Uniform Code of Military Justice
(UCMJ) claims.
536.126 Purpose of UCMJ claims.
536.127 Proper claimants; unknown accused--under the UCMJ.
536.128 Effect of disciplinary action, voluntary restitution, or
contributory negligence for claims under the UCMJ.
536.129 Claims cognizable as UCMJ claims.
536.130 Claims not cognizable as UCMJ claims.
536.131 Limitations on assessments arising from UCMJ claims.
536.132 Procedure for processing UCMJ claims.
536.133 Reconsideration of UCMJ claims .
536.134 Additional claims judge advocate and claims attorney
responsibilities (for UCMJ claims).
Subpart J--Claims Cognizable Under the Foreign Claims Act
536.135 Statutory authority for the Foreign Claims Act.
536.136 Scope for claims arising under the Foreign Claims Act.
536.137 Claims payable under the Foreign Claims Act.
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536.138 Claims not payable under the Foreign Claims Act.
536.139 Applicable law for claims under the Foreign Claims Act.
536.140 Appointment and functions of Foreign Claims Commissions.
536.141 Composition of Foreign Claims Commissions.
536.142 Qualification of members of Foreign Claims Commissions.
536.143 Settlement authority of Foreign Claims Commissions.
536.144 Reopening a claim after final action by a Foreign Claims
Commission.
536.145 Solatia payment.
Subpart K--Nonappropriated Fund Claims
536.146 Claims against nonappropriated fund employees--generally.
536.147 Claims by NAFI employees for losses incident to employment.
536.148 Claims generated by the acts or omissions of NAFI employees.
536.149 Identification of persons whose actions may generate
liability.
536.150 Claims payable from appropriated funds.
536.151 Settlement authority for claims generated by acts or
omissions of NAFI employees.
536.152 Payment of claims generated by acts or omissions of NAFI
employees.
536.153 Claims involving tortfeasors other than nonappropriated fund
employees: NAFI contractors.
536.154 Claims involving tortfeasors other than nonappropriated fund
employees: NAFI risk management program (RIMP) claims.
536.155 Claims payable involving tortfeasors other than
nonappropriated fund employees.
536.156 Procedures for claims involving tortfeasors other than
nonappropriated fund employees.
536.157 Settlement/approval authority for claims involving
tortfeasors other than nonappropriated fund employees.
Authority: 10 U.S.C. 2733; 10 U.S.C. 1089; 10 U.S.C. 1054; 28
U.S.C. 1291, 2401-2402, 2411-2412, 2671-2680; 10 U.S.C. 2737; 32
U.S.C. 715; 10 U.S.C. 2734a, 2734b; 10 U.S.C. 2734;10 U.S.C. 4801,
4802, 4806; 46 U.S.C. app. 740; 39 U.S.C. 411; 10 U.S.C. 939; 10
U.S.C. 2736; 10 U.S.C. 2735; 10 U.S.C. 2731.
PART 536--CLAIMS AGAINST THE UNITED STATES
Subpart A--The Army Claims System
Sec. 536.1 Purpose of the Army Claims System.
This part sets forth policies and procedures that govern the
investigating, processing, and settling of claims against, and in favor
of, the United States under the authority conferred by statutes,
regulations, international and interagency agreements, and Department
of Defense Directives (DODDs). It is intended to ensure that claims are
investigated properly and adjudicated according to applicable law, and
valid recoveries and affirmative claims are pursued against carriers,
third-party insurers, and tortfeasors.
Sec. 536.2 Claims authorities.
(a) General. Claims cognizable under the following list of statutes
and authorities are processed and settled under DA Pam 27-162 and this
part. All of these materials may be viewed on the USARCS Web site,
https://www.jagcnet.army.mil/85256F33005C2B92/(JAGCNETDocID)/
HOME?OPENDOCUMENT. Select the link ``Claims Resources.''
(1) Tort Claims. (i) The Military Claims Act (MCA), 10 United
States Code (U.S.C.) 2733 (see Subpart C of this part). The ``incident-
to-service'' provision, applicable to both military and civilian
personnel of the Department of Defense, is contained in the MCA.
(ii) The Gonzales Act, 10 U.S.C. 1089. This act permits individual
suits against health care providers for certain torts (see Sec.
536.80).
(iii) Certain suits arising out of legal malpractice, 10 U.S.C.
1054, discussed at Sec. 536.81 and at DA Pam 27-162, paragraph 2-62f.
(iv) The Federal Tort Claims Act (FTCA), 28 U.S.C. 1291, 1402,
2401-2402, 2411-2412, and 2671-2680 (see Subpart D of this part). The
Westfall Act, 28 U.S.C. 2679, an integral part of the FTCA, provides
absolute immunity from individual suit for common law torts for
employees of the United States acting within the scope of their
employment.
(A) The legislative history of the FTCA.
(B) Regulations of the Attorney General implementing the Federal
Tort Claims Act, 28 CFR part 14.
(C) An Appendix to 28 CFR part 14 sets forth certain delegations of
settlement authority to the Secretary of Veterans Affairs, the
Postmaster General, the Secretary of Defense, the Secretary of
Transportation, and the Secretary of Health and Human Services.
(v) The Non-Scope Claims Act (NSCA), 10 U.S.C. 2737 (see Subpart E
of this part).
(vi) The National Guard Claims Act (NGCA), 32 U.S.C. 715 (see
Subpart F of this part).
(vii) Claims under International Agreements or the Foreign Claims
Act.
(A) International Agreements Claims Act (IACA), 10 U.S.C. 2734a and
2734b.
(B) Foreign Claims Act (FCA), 10 U.S.C. 2734 (see Subpart J of this
part). (viii) The Army Maritime Claims Settlement Act (AMCSA), 10
U.S.C. 4801, 4802 and 4806. Affirmative claims under the AMCSA are
processed under 10 U.S.C. 4803 and 4804 (see Sec. 537.16 of this
chapter).
(ix) Admiralty Extension Act (AEA), 46 U.S.C. app. 740 (see Subpart
H of this part).
(x) Claims against nonappropriated fund (NAF) activities and the
risk management program (RIMP) (see Subpart K of this part), processed
under Army Regulation (AR) 215-1 and AR 608-10.
(xi) 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
Department of Defense (DOD) Manual 4525.6-M).
(2) Personnel Claims (subpart I of this part and AR 27-20, chapter
11).
(i) The Personnel Claims Act (PCA), 31 U.S.C. 3721 (see AR 27-20,
chapter 11).
(ii) Redress of injuries to personal property, Uniform Code of
Military Justice (UCMJ), Article 139, 10 U.S.C. 939 (see Subpart I of
this part).
(3) Affirmative Claims (32 CFR part 537).
(i) The Federal Claims Collection Act (FCCA), 31 U.S.C. 3711-3720E.
(ii) The Federal Medical Care Recovery Act (FMCRA), 42 U.S.C. 2651-
2653.
(iii) Collection from third-party payers of reasonable costs of
healthcare services, 10 U.S.C. 1095 .
(b) Fund source authority for claims under Title 10 statutes. 10
U.S.C. 2736, advance payments for certain property claims (see Sec.
536.71).
(c) Fund source authority for tort claims paid by Financial
Management Service (FMS). 31 U.S.C. 1304, provides authority for
judgments, awards and compromise settlements.
(d) Additional authorities under Title 10.
(1) 10 U.S.C. 2735, establishes that settlements (or ``actions'')
under the Title 10 claims processing statutes are final and conclusive.
(2) 10 U.S.C. 2731, provides a definition of the word ``settle.''
(e) Related remedies statutes. The Army frequently receives claims
or inquiries that are not cognizable under the statutory and other
authorities administered by the U.S. Army under this publication and DA
Pam 27-162. Every effort should be made to refer the claim or inquiry
to the proper authority following the guidance in Sec. 536.34 or Sec.
536.36. (See also the corresponding paragraphs 2-15 and 2-17,
respectively, in DA Pam 27-162). Some authorities for related remedies
are used more frequently than others. Where an authority for a related
remedy is frequently used, it is listed below and is
[[Page 46263]]
posted on the USARCS Web site (for the address see Sec. 536.2(a)).
(1) Tucker Act, 28 U.S.C. 1346, provides exclusive jurisdiction in
the Court of Federal Claims over causes of actions alleging property
loss caused by a Fifth Amendment ``taking.''
(2) Maritime authority statutes, Public Vessels Act (PVA), 46
U.S.C. app. 781-790, Suits in Admiralty Act (SIAA), 46 U.S.C. app. 741-
752, and the Rivers and Harbors Act, 33 U.S.C. 408 and 412.
(3) Federal Employees Compensation Act (FECA), two excerpts: 5
U.S.C. 8116 and 8140, providing guidance on personal injury and death
claims by civilian employees arising within the scope of their
employment (see DA Pam 27-162, paragraph 2-15b) and information on
certain claims by Reserve Officers Training Corps (ROTC) cadets,
respectively, (see DA Pam 27-162, paragraph 2-17d(2)).
(4) Longshore and Harbor Workers Compensation Act (LHWCA), 33
U.S.C. 901-950.
(5) Claims for consequential property damage by civilian employees
may only be considered in the Court of Federal Claims pursuant to 28
U.S.C. 1491.
(f) Additional materials. There are some additional authoritative
materials for the processing of claims, mostly of an administrative
nature. For a complete listing of all of the supplementary materials
relevant to claims processing under this publication and DA Pam 27-162
see Appendix B of DA Pam 27-162.
(g) Conflict of authorities. Where a conflict exists between a
general provision of this publication and a specific provision found in
one of this publication's subparts implementing a specific statute, the
specific provision, as set forth in the statute, will control.
Sec. 536.3 Command and organizational relationships.
(a) The Secretary of the Army. The Secretary of the Army (SA) heads
the Army Claims System and acts on certain claims appeals directly or
through a designee.
(b) The Judge Advocate General. The SA 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 USARCS to carry out the
responsibilities assigned in Sec. 536.7 and as otherwise lawfully
delegable.
(c) U.S. Army Claims Service. USARCS, a command and component of
the Office of TJAG, is the agency through which the SA and TJAG
discharge their responsibilities for the administrative settlement of
claims worldwide (see AR 10-72). USARCS' mailing address is: U.S. Army
Claims Service, 4411 Llewellyn Ave., Fort George G. Meade, MD 20755-
5360, Commercial: (301) 677-7009.
(d) 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:
(i) Effectively control and supervise the investigation of
potentially compensable events (PCEs) occurring within the command's
geographic area of responsibility, in other areas for which the command
is assigned claims responsibility, and during the course of the
command's operations.
(ii) Provide services for the processing and settlement of claims
for and against the United States.
(2) The Commander USARCS may delegate authority to establish a
command claims service to the commander of a major overseas command or
other commands that include areas outside the United States, its
territories and possessions.
(i) When a large deployment occurs, the Commander USARCS may
designate a command claims service for a limited time or purpose, such
as for the duration of an operation and for the time necessary to
accomplish the mission. The appropriate major Army command (MACOM) will
assist the Commander USARCS in obtaining resources and personnel for
the mission.
(ii) In coordination with the Commander USARCS, the MACOM will
designate the area of responsibility for each new 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 command's Office of
the Staff Judge Advocate (SJA), the SJA will also be the chief of the
command claims service, however, the SJA may designate a field grade
officer as chief of the service.
(e) Area claims offices. The following may be designated as area
claims offices (ACOs):
(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 ACO.
(2) An office under supervision of the senior JA of each command in
the area of responsibility of a command claims service so designated by
the chief of that service after coordination with the Commander USARCS.
The senior JA is the head of the ACO.
(3) The office of counsel of each U.S. Army Corps of Engineers
(COE) district within the United States and such other COE commands or
agencies as designated by the Commander USARCS, with concurrence of the
Chief Counsel, Office of the Chief of Engineers, for all claims
generated within such districts, commands or agencies. The district
counsel or the attorney in charge of the command's or agency's legal
office is the head of the ACO.
(f) Claims processing offices. Claims processing offices (CPOs) are
normally small legal offices or ACO subordinate elements, designated by
the Commander USARCS, a command claims service or an ACO. These offices
are established for the investigation of all actual and potential
claims arising within their jurisdiction, on either an area, command or
agency basis. There are four types of claims processing offices (see
Sec. 536.10):
(1) Claims processing offices without approval authority.
(2) Claims processing offices with approval authority.
(3) Medical claims processing offices.
(4) Special claims processing offices.
(g) Limitations on delegation of authority under any subpart. (1)
The Commander USARCS, commanders or chiefs of command claims services,
or the heads of ACOs or CPOs with approval authority may delegate, in
writing, all or any portion of their monetary approval authority to
subordinate JAs or claims attorneys in their services or offices.
(2) The authority to act upon appeals or requests for
reconsideration, to deny claims (including disapprovals based on
substantial fraud), to grant waivers of maximum amounts allowable, or
to make final offers will not be delegated except that the Commander
USARCS may delegate this authority to USARCS Division Chiefs.
(3) CPOs will provide copies of all delegations affecting them to
the ACO and, if so directed, to command claims services.
Sec. 536.4 Designation of claims attorneys.
(a) Who may designate. The Commander USARCS, the senior JA of a
command having a command claims service, the chief of a command claims
service, the head of an ACO, or the Chief Counsel of a COE District,
may designate a qualified attorney other than a JA as a claims
attorney. The head of an ACO may designate a claims attorney to act as
a CPO with approval authority.
(b) Eligibility. To qualify as a claims attorney, an individual
must be a civilian employee of the Department of the Army (DA) or DOD,
a member of the bar of a state, the District of Columbia, or a
jurisdiction where U.S. federal law applies, serving in the grade of
GS-11
[[Page 46264]]
or above, and performing primary duties as a legal adviser.
Sec. 536.5 The Judge Advocate General.
TJAG has worldwide Army Staff responsibility for administrative
settlement of claims by and against the U.S. government, generated by
employees of the U.S. Army and DOD components other than the
Departments of the Navy and Air Force. Where the Army has single-
service responsibility, TJAG has responsibility for the Army. See DODD
5515.9. Certain claims responsibilities of TJAG are exercised by The
Assistant Judge Advocate General (TAJAG) as set forth in this part and
directed by TJAG.
Sec. 536.6 The Army claims mission.
(a) Promptly investigate potential claims incidents with a view to
determining the degree of the Army's exposure to liability, the damage
potential, and when the third party is at fault, whether the Army
should take action to collect for medical expenses, lost wages and
property damage.
(b) Efficiently and expeditiously dispose of claims against the
U.S. by fairly settling meritorious claims at the lowest level within
the claims system commensurate with monetary jurisdiction delegated, or
by denying non-meritorious claims.
(c) Develop a system that has a high level of proficiency, so that
litigation and appeals can be avoided or kept to a minimum.
Sec. 536.7 Responsibilities of the Commander USARCS.
The Commander USARCS shall:
(a) Supervise and inspect claims activities worldwide.
(b) Formulate and implement claims policies and uniform standards
for claims office operations.
(c) Investigate, process and settle claims beyond field office
monetary authority and consider appeals and requests for
reconsideration on claims denied by the field offices.
(d) Supervise the investigation, processing, and settlement of
claims against, and in favor of, the United States under the statutes
and regulations listed in Sec. 536.2 and pursuant to other appropriate
statutes, regulations, and authorizations.
(e) Designate ACOs, CPOs, and claims attorneys within DA and DOD
components other than the Departments of the Navy and Air Force,
subject to concurrence of the commander concerned.
(f) Designate continental United States (CONUS) geographic areas of
claims responsibility.
(g) Recommend action to be taken by the SA, TJAG or the U.S.
Attorney General, as appropriate, on claims in excess of $25,000 or the
threshold amount then current under the FTCA, on claims in excess of
$100,000 or the threshold amount then current under the FCA, the MCA,
the NGCA, AMCSA, FCCA and FMRCA and on other claims that have been
appealed. Direct communication with Department of Justice (DOJ) and the
SA's designee is authorized.
(h) Operate the ``receiving State office'' for claims arising in
the United States, its territories, commonwealths and possessions
cognizable under Article VIII of the North Atlantic Treaty Organization
(NATO) Status of Forces Agreement (SOFA), Partnership for Peace (PFP)
SOFA, Article XVI of the Singapore SOFA, and other SOFAs which have
reciprocal claims provisions as delegated by TJAG, as implemented by 10
U.S.C. 2734a and 2734b (Subpart G of this part).
(i) Settle claims of the U.S. Postal Service for reimbursement
under 39 U.S.C. 411 (see DOD Manual 4525.6-M).
(j) Settle claims against carriers, warehouse firms, insurers, and
other third parties for loss of, or damage to, personal property of DA
or DOD soldiers or civilians incurred while the goods are in storage or
in transit at government expense (AR 27-20, chapter 11).
(k) Formulate and recommend legislation for Congressional enactment
of new statutes and the amendment of existing statutes considered
essential for the orderly and expeditious administrative settlement of
noncontractual claims.
(l) Perform post-settlement review of claims.
(m) Prepare, justify, and defend estimates of budgetary
requirements and administer the Army claims budget.
(n) Maintain permanent records of claims for which TJAG is
responsible.
(o) Assist in developing disaster and maneuver claims plans
designed to implement the responsibilities set forth in Sec.
536.9(a)(12).
(p) Develop and maintain plans for a disaster or civil disturbance
in those geographic areas that are 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.
(q) Take initial action, as appropriate, on claims arising in
emergency situations.
(r) Provide assistance as available or take appropriate action to
ensure that command claims services and ACOs are carrying out their
responsibilities as set forth in Sec. Sec. 536.8 and 536.9, including
claims assistance visits.
(s) Serve as proponent for the database management systems for
torts, personnel and affirmative claims and provide standard automated
claims data management programs for worldwide use.
(t) Ensure proper training of claims personnel.
(u) Coordinate claims activities with the Air Force, Navy, Marine
Corps, and other DOD agencies to ensure a consistent and efficient
joint service claims program.
(v) Investigate, process and settle, and supervise the field office
investigation and processing of, medical malpractice claims arising in
Army medical centers within the United States; provide medical claims
judge advocates (MCJAs), medical claims attorneys, and medical claims
investigators assigned to such medical centers with technical guidance
and direction on such claims.
(w) Coordinate support with the U.S. Army Medical Command (MEDCOM)
on matters relating to medical malpractice claims.
(x) Issue an accounting classification to all properly designated
claims settlement and approval authorities.
(y) Perform the investigation, processing, and settlement of claims
arising in areas outside command claims service areas of operation.
(z) Maintain continuous worldwide deployment and operational
capability to furnish claims advice to any legal office or command
throughout the world. When authorized by the chain of command or
competent authority, issue such claims advice or services, including
establishing a claims system within a foreign country, interpreting
claims aspects of international agreements, and processing claims
arising from Army involvement in civil disturbances, chemical accidents
under the Chemical Energy Stockpile Program, other man-made or natural
disasters, and other claims designated by competent authority.
(aa) Upon receiving both the appropriate authority's directive or
order and full fiscal authorization, disburse the funds necessary to
administer civilian evacuation, relocation, and similar initial
response efforts in response to a chemical disaster arising at an Army
facility.
(bb) Respond to all inquiries from the President, members of
Congress, military officials, and the general public on claims within
USARCS' responsibility.
(cc) Serve as the proponent for this publication and DA Pam 27-162,
both
[[Page 46265]]
of which set forth guidance on personnel, tort, disaster and
affirmative claims, as well as claims management and administration.
(dd) Provide supervision for the Army's affirmative claims and
carrier recovery programs, as well as other methods for recovering
legal debts.
(ee) Provide support for the overseas environmental claims program
as designated by the DA.
(ff) Execute other claims missions as designated by DOD, DA, TJAG
and other competent authority.
(gg) Appoint Foreign Claims Commissions outside Command Claims
Services' geographic areas of responsibility.
(hh) Budget for and fund claims investigations and activities; such
as per diem and transportation of claims personnel, claimants and
witnesses; independent medical examinations; appraisals; independent
expert opinions; long distance telephone calls; recording and
photographic equipment; use of express mail or couriers; and other
necessary expenses.
Sec. 536.8 Responsibilities and operations of command claims
services.
(a) Chiefs of command claims services. Chiefs of command claims
services shall:
(1) Exercise claims settlement authority as specified in this part,
including appellate authority where so delegated.
(2) Supervise the investigation, processing, and settlement of
claims against, and in favor of the United States under the statutes
and regulations listed in Sec. 536.2, and pursuant to other
appropriate statutes, regulations, and authorizations.
(3) Designate and grant claims settlement authority to ACOs. A
grant of such authority will not be effective until coordinated with
the Commander USARCS, and assigned an office code. However, the chief
of a command claims service may redesignate a CPO that already has an
assigned office code as an ACO without coordination with the Commander
USARCS. The Commander USARCS, will be informed of such a designation.
(4) Designate and grant claims approval authority to CPOs. Only
CPOs staffed with a claims judge advocate (CJA) or claims attorney may
be granted approval authority. A grant of such authority will not be
effective until coordinated with the Commander USARCS, and assigned an
office code.
(5) Train claims personnel and monitor their operations and ongoing
claims administration. Conduct a training course annually.
(6) Implement pertinent claims policies.
(7) Prepare and publish command claims directives.
(8) Administer the command claims expenditure allowance, providing
necessary data, estimates, and reports to USARCS on a regular basis.
(9) Perform the responsibilities of an ACO (see Sec. 536.9), as
applicable, ensure that SOFA claims are investigated properly and
timely filed with the receiving State and adequately funded.
(10) Serve as the United States ``sending State office,'' if so
designated, when operating in an area covered by a SOFA.
(11) Supervise and provide technical assistance to subordinate ACOs
within the command claims service's geographic area of responsibility.
(12) Appoint FCCs.
(b) Operations of Command Claims Services. The SJA of the command
shall supervise the command claims service. The command SJA may
designate a field grade JA as the chief of the service. An adequate
number of qualified claims personnel shall be assigned to ensure that
claims are promptly investigated and acted upon. With the concurrence
of the Commander USARCS, a command claims service may designate ACOs
within its area of operations to carry out claims responsibilities
within specified geographic areas subject to agreement by the commander
concerned.
Sec. 536.9 Responsibilities and operations of area claims offices.
(a) Heads of ACOs. Heads of ACOs, including COE offices (see Sec.
536.3(e)(3)) shall:
(1) Ensure that claims and potential claims incidents in their area
of responsibility are promptly investigated in accordance with this
part.
(2) Ensure that each organization or activity (for example, U.S.
Army Reserve (USAR) or Army National Guard of the United States
(ARNGUS) unit, ROTC detachment, recruiting company or station, or DOD
agency) within the area appoints a claims officer to investigate claims
incidents not requiring investigation by a JA (see Sec. 536.23) and
ensure that this officer is adequately trained.
(3) Supervise the investigation, processing, and settlement of
claims against, and in favor of, the United States under the statutes
and regulations listed in Sec. 536.2 and pursuant to other appropriate
statutes, regulations, and authorizations.
(4) Act as a claims settlement authority on claims that fall within
the appropriate monetary jurisdictions set forth in this part and
forward claims exceeding such jurisdictions to the Commander USARCS, or
to the chief of a command claims service, as appropriate, for action.
(5) Designate CPOs and request that the Commander USARCS, or the
chief of a command claims service, as appropriate, grant claims
approval authority to a CPO for claims that fall within the
jurisdiction of that office.
(6) Supervise the operations of CPOs within their area.
(7) Implement claims policies and guidance furnished by the
Commander USARCS.
(8) Ensure that there are adequate numbers of qualified and
adequately trained CJAs or claims attorneys, RCJAs or attorneys,
recovery claims clerks, claims examiners, claims adjudicators and
claims clerks in all claims offices within their areas to act promptly
on claims.
(9) Budget for and fund claims investigations and activities, such
as: Per diem and transportation of claims personnel, claimants and
witnesses; independent medical examinations; appraisals and independent
expert opinions; long distance telephone calls; recording and
photographic equipment; use of express mail or couriers; and other
necessary expenses.
(10) Within the United States and its territories, commonwealths
and possessions, procure and disseminate, within their areas of
jurisdiction, appropriate legal publications on state or territorial
law and precedent relating to tort claims.
(11) Notify the Commander USARCS, of all claims and potentially
compensable events (PCEs) as required by Sec. 536.22(c); notify the
chief of a command claims service of all claims and PCEs.
(12) Develop and maintain written plans for a disaster or civil
disturbance. These plans may be internal SJA office plans or an annex
to an installation or an agency disaster response plan.
(13) Implement the Army's Article 139 claims program. (See Subpart
I of this part).
(14) Notify USARCS of possible deployments and ensure adequate FCCs
are appointed by USARCS and are trained.
(b) Operations of Area Claims Offices. (1) The ACO is the principal
office for the investigation and adjudication or settlement of claims,
and shall be staffed with qualified legal personnel under the
supervision of the SJA, command JA, or COE district or command legal
counsel.
(2) In addition to the utilization of unit claims officers required
by Sec. 536.10(a), if indicated, the full-time
[[Page 46266]]
responsibility for investigating and processing claims arising within
or related to the activities of a unit or organization located within a
section of the designated area may be delegated to another command,
unit, or activity by establishing a CPO at the command, unit, or
activity (see Sec. 536.10(b)(4)). Normally, all CPOs will operate
under the supervision of the ACO in whose area the CPO is located.
Where a proposed CPO is not under the command of the ACO parent
organization, this designation may be achieved by a support agreement
or memorandum of understanding between the affected commands.
(3) Normally, claims that cannot be settled by a COE ACO will be
forwarded directly to the Commander USARCS, with notice of referral to
the Chief Counsel, COE. However, as part of his or her responsibility
for litigating suits that involve civil works and military construction
activities, the Chief Counsel, COE, may require that a COE ACO forward
claims through COE channels, provided that such requirement does not
preclude the Commander USARCS from taking final action within the time
limitations set forth in subparts D and H of this part.
Sec. 536.10 Responsibilities and operations of claims processing
offices.
(a) Heads of CPOs. Heads of CPOs will:
(1) Investigate all potential and actual claims arising within
their assigned jurisdiction, on either an area, command, or agency
basis. Only a CPO that has approval authority may adjudicate and pay
presented claims within its monetary jurisdiction.
(2) Ensure that units and organizations within their jurisdiction
have appointed claims officers for the investigation of claims not
requiring a JA's investigation. (See Sec. 536.22).
(3) Budget for and fund claims investigations and activities;
including, per diem and transportation of claims personnel, claimants
and witnesses; independent medical examinations; appraisals;
independent expert opinions; long distance telephone 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 relating to tort claims pertaining to their jurisdiction.
(5) Notify the Commander USARCS of all claims and claims incidents,
as required by Sec. 536.22 and AR 27-20, paragraph 2-12.
(6) Implement the Army's Article 139 claims program (see Subpart I
of this part).
(b) Operations of claims processing offices. (1) Claims processing
office with approval authority. A CPO that has been granted approval
authority must provide for the investigation of all potential and
actual claims arising within its assigned jurisdiction, on an area,
command, or agency basis, and for the adjudication and payment of all
claims presented within its monetary jurisdiction. If the estimated
value of a claim, after investigation, exceeds the CPO's payment
authority, or if disapproval is the appropriate action, the claim file
will be forwarded to the ACO unless otherwise specified in this part,
or forwarded to USARCS or the command claims service, if directed by
such service.
(2) Claims processing offices without approval authority. A CPO
that has not been granted claims approval authority will provide for
the investigation of all potential and actual claims arising within its
assigned jurisdiction on an area, command, or agency basis. Once the
investigation has been completed, the claim file will be forwarded to
the appropriate ACO for action. Alternatively, an ACO may direct the
transfer of a claim investigation from a CPO without approval authority
to another CPO with approval authority, located within the ACO's
jurisdiction.
(3) Medical claims processing offices. The MCJAs or medical claims
attorneys at Army medical centers, other than Walter Reed Army Medical
Center, may be designated by the SJA or head of the ACO for the
installation on which the center is located as CPOs with approval
authority for medical malpractice claims only. Claims for amounts
exceeding a medical CPO's approval authority will be investigated and
forwarded to the Commander USARCS.
(4) Special claims processing offices. (i) Designation and
authority. The Commander USARCS, the chief of a command claims service,
or the head of an ACO may designate special CPOs within his or her
command for specific, short-term purposes (for example, maneuvers,
civil disturbances and emergencies). These special CPOs may be
delegated the approval authority necessary to effect the purpose of
their creation, but in no case will this delegation exceed the maximum
monetary approval authority set forth in other subparts of this part
for regular CPOs. All claims will be processed under the claims
expenditure allowance and claims command and office code of the
authority that established the office or under a code assigned by
USARCS. The existence of any special CPO must be reported to the
Commander USARCS, and the chief of a command claims service, as
appropriate.
(ii) Maneuver damage and claims office jurisdiction. A special CPO
is the proper organization to process and approve maneuver damage
claims, except when a foreign government is responsible for
adjudication pursuant to an international agreement (see Subpart G of
this part). Personnel from the maneuvering command should be used to
investigate claims and, at the ACO's discretion, may be assigned to the
special CPO. The ACO will process claims filed after the maneuver
terminates. The special CPO will investigate claims arising while units
are traveling to or from the maneuver within the jurisdiction of other
ACOs, and forward such claims for action to the ACO in whose area the
claims arose. Claims for damage to real or personal property arising on
private land that the Army has used under a permit may be paid from
funds specifically budgeted by the maneuver for such purposes in
accordance with AR 405-15.
(iii) Disaster claims and civil disturbance. A special CPO provided
for a disaster or civil disturbance should include a claims approving
authority with adequate investigatory, administrative, and logistical
support, including damage assessment and finance and accounting
support. It will not be dispatched prior to notification of the
Commander USARCS, whose concurrence must be obtained before the first
claim is paid.
(5) Supervisory requirements. The CPOs discussed in paragraphs
(b)(2) through (b)(4) of this section must be supervised by an assigned
CJA or claims attorney in order to exercise delegated approval
authority.
Sec. 536.11 Chief of Engineers.
The Chief of Engineers, through the Chief Counsel, shall:
(a) Provide general supervision of the claims activities of COE
ACOs.
(b) Ensure that each COE ACO has a claims attorney designated in
accordance with Sec. 536.4.
(c) Ensure that claims personnel are adequately trained, and
monitor their ongoing claims administration.
(d) Implement pertinent claims policies.
(e) Provide for sufficient funding in accordance with existing Army
regulations and command directives for temporary duty (TDY), long
distance telephone calls, recording equipment, cameras, and other
expenses for investigating and processing claims.
[[Page 46267]]
(f) Procure and maintain adequate legal publications on local law
relating to claims arising within the United States, its territories,
commonwealths and possessions.
(g) Assist USARCS in evaluation of claims by furnishing qualified
expert and technical advice from COE resources, on a non-reimbursable
basis except for temporary duty (TDY) and specialized lab services
expenses.
Sec. 536.12 Commanding General, U.S. Army Medical Command.
(a) After consulting with the Commander USARCS on the selection of
medical claims attorneys, the Commander of the U.S. Army MEDCOM, the
European Medical Command, or other regional medical command, through
his or her SJA/Center Judge Advocate, shall ensure that an adequate
number of qualified MCJAs or medical claims attorneys and medical
claims investigators are assigned to investigate and process medical
malpractice claims arising at Army medical centers under the
Commander's control. In accordance with an agreement between TJAG and
The Surgeon General, such personnel shall be used primarily to
investigate and process medical malpractice claims and affirmative
claims and will be provided with the necessary funding and research
materials to carry out this function.
(b) Upon request of a claims judge advocate or claims officer,
shall provide a qualified health care provider at a medical treatment
facility (MTF) to examine a claimant for his injuries even if the
claimant is not otherwise entitled to care at an MTF (See AR 40-400,
Patient Administration, paragraph 3-47).
Sec. 536.13 Chief, National Guard Bureau.
The Chief, National Guard Bureau (NGB), shall:
(a) Ensure the designation of a point of contact for claims matters
in each State Adjutant General's office.
(b) Provide the name, address, and telephone number of these points
of contact to the Commander USARCS.
(c) Designate claims officers to investigate claims generated by
ARNG personnel and forward investigations to the Active Army ACO that
has jurisdiction over the area in which the claims incident occurred.
Sec. 536.14 Commanders of major Army commands.
Commanders of MACOMs, through their SJAs, shall:
(a) Assist USARCS in monitoring ACOs and CPOs under their
respective commands for compliance with the responsibilities assigned
in Sec. Sec. 536.9 and 536.10.
(b) Assist claims personnel in obtaining qualified expert and
technical advice from command units and organizations on a
nonreimbursable basis (although the requesting office may be required
to provide TDY funding).
(c) Assist TJAG, through the Commander USARCS, in implementing the
functions set forth in Sec. 536.7.
(d) Coordinate with the ACO within whose jurisdiction a maneuver is
scheduled, to ensure the prompt investigation and settlement of any
claims arising from it.
Sec. 536.15 Claims policies.
(a) General. The following policies will be adhered to in
processing and adjudicating claims falling within this regulation. The
Commander USARCS is authorized to publish new policies or rescind
existing policies from time to time as the need arises.
(1) Notification. The Commander USARCS must be notified as soon as
possible of both potential and actual claims which are serious
incidents that cannot be settled within the monetary jurisdiction of a
Command Claims Service or an ACO, including those which occur in the
area of responsibility of a CPO. On such claims, the USARCS Area Action
Officer (AAO) must coordinate with the field office as to all aspects
of the investigation, evaluation and determination of liability. An
offer of settlement or the assertion of an affirmative claim must be
the result of a discussion between the AAO and the field office.
Payment of a subrogated claim may commit the United States to liability
as to larger claims. On the other hand, where all claims out of an
incident can be paid within field authority they should be paid
promptly with maximum use of small claims procedures.
(2) Consideration under all subparts. Prior to denial, a claim will
be considered under all subparts of this part, regardless of the form
on which the claim is presented. A claim presented as a personnel claim
will be considered as a tort prior to denial. A claim presented as a
tort will first be considered as a personnel claim, and if not payable,
then considered as a tort. If deniable, the claim will be denied both
as a personnel claim and as a tort.
(3) Compromise. DA policy seeks to compromise claims in a manner
that represents a fair and equitable result to both the claimant and
the United States. This policy does not extend to frivolous claims or
claims lacking factual or legal merit. A claim should not be settled
solely to avoid further processing time and expense. All claims,
regardless of amount, should be evaluated. Congress imposed no minimum
limit on payable claims nor did it intend that small non-meritous
claims be paid. Practically any claim, regardless of amount, may be
subject to compromise through direct negotiation. A CJA or claims
attorney should develop expertise in assessing liability and damages,
including small property damage claims. For example, a property damage
claim may be compromised by deducting the cost of collection, i.e.,
attorney fees and costs, even where liability is certain.
(4) Expeditious processing at the lowest level. Claims
investigation and adjudication should be accomplished at the lowest
possible level, such as the CPO or ACO that has monetary authority over
the estimated total value of all claims arising from the incident. The
expeditious investigation and settlement of claims is essential to
successfully fulfilling the Army's responsibilities under the claims
statutes implemented by this part.
(5) Notice to claimants of technical errors in claim. When
technical errors are found in a claim's filing or contents, claimants
should be advised of such errors and the need to correct the claim. If
the errors concern a jurisdictional matter, a record should be
maintained and the claimant should be immediately warned that the error
must be corrected before the statute of limitations (SOL) expires.
(b) Cooperative investigative environment. 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, assisted in completing claim forms, and may be assisted
in assembling evidence. Claims personnel may not assist any claimant in
determining what amount to claim. During claims investigation, every
effort should be made to create a cooperative environment that
engenders 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 essential both during investigation and before
adjudication. When settlement is not feasible, issues in dispute should
be clearly identified to facilitate resolution of any reconsideration,
appeal or litigation.
(c) Claims directives and plans. (1) Directives. Two copies of
command claims directives will be furnished to
[[Page 46268]]
the Commander USARCS. ACO directives will be distributed to all DA and
DOD commands, installations and activities within the ACO's area of
responsibility, with an information copy to the Commander USARCS.
(2) Disaster and civil preparedness plan. One copy of all ACOs'
disaster or civil disturbance plans or annexes will be furnished to the
Commander USARCS.
(d) Interpretations. The Commander USARCS will publish written
interpretations of this part. Interpretations will have the same force
and effect as this part.
(e) Authority to grant exceptions to and deviations from this part.
If, in particular instances, it is considered to be in the best
interests of the government, the Commander USARCS may authorize
deviations from this part's specific requirements, except as to matters
based on statutes, treaties and international agreements, executive
orders, controlling directives of the Attorney General or Comptroller
General, or other publications that have the force and effect of law.
(f) Guidance. The Commander USARCS, may publish bulletins, manuals,
handbooks and notes, and a DA Pamphlet that provides guidance to claims
authorities on administrative and procedural rules implementing this
part. These will be binding on all Army claims personnel.
(g) Communication. All claims personnel are authorized to
communicate directly with USARCS personnel for guidance on matters of
policy or on matters relating to the implementation of this part.
(h) Private relief bills. The issue of a private relief bill is one
between a claimant and his or her Congressional representative. There
is no established procedure under which the DA sponsors private relief
legislation. Claims personnel shall remain neutral in all private
relief matters and shall not make any statement that purports to
reflect the DA's position on a private relief bill.
Sec. 536.16 Release of information policies.
(a) Conflict of interest. Except as part of their official duties,
government personnel are forbidden from advising or representing
claimants or from receiving 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) Relevant statutes pertinent to the
release of information include the Privacy Act of 1974, 5 U.S.C. 552a
and 552b, the Freedom of Information Act (FOIA), 5 U.S.C. 552 and the
Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C.
1320d through 1320d-8.
(2) It is the policy of USARCS that unclassified attorney work
product may be released with or without a request from the claimant or
attorney, whenever such release may help settle the claim or avoid
unnecessary litigation.
(3) A statutory exemption or privilege may not be waived.
Similarly, documents subject to such statutorily required
nondisclosure, exemption, or privilege may not be released. Regarding
other exemptions and privileges, authorities may waive such exemptions
or privileges and direct release of the protected documents, upon
balancing all pertinent factors, including finding that release of
protected records will not harm the government's interest, will promote
settlement of a claim and will avoid unnecessary litigation, or for
other good cause.
(4) All requests for records and information made pursuant to the
FOIA, 5 U.S.C. 552, the Privacy Act of 1974, 5 U.S.C. 552a, or HIPAA,
42 U.S.C. 1320d, will be processed in accordance with the procedures
set forth in AR 25-55 and AR 340-21, respectively as well as 45 CFR
parts 160 and 164, DODD 6025.18-R, this part, and DA Pam 27-162.
(i) Any request for DOD records that either explicitly or
implicitly cites the FOIA shall be processed under the provisions of AR
25-55. Requests for DOD records submitted by a claimant or claimant's
attorney will be processed under both the FOIA and under the Privacy
Act when the request is made by the subject of the records requested
and those records are maintained in a system of records. Such requests
will be processed under the FOIA time limits and the Privacy Act fee
provisions. Withheld information must be exempt from disclosure under
both Acts.
(ii) Requests that cite both Acts or neither Act are processed
under both Acts, using the FOIA time limits and the Privacy Act fee
provisions. For further guidance, see AR 25-55, paragraphs 1-301 and 1-
503.
(5) The following records may not be disclosed:
(i) Medical quality assurance records exempt from disclosure
pursuant to 10 U.S.C. 1102(a).
(ii) Records exempt from disclosure pursuant to appropriate
balancing tests under FOIA exemption (6) (clearly unwarranted invasion
of personal privacy), exemption (7)(c) (reasonably constitutes
unwarranted invasion of privacy), and law enforcement records (5 U.S.C.
552 (b)) unless requested by the subject of the record.
(iii) Records protected by the Privacy Act.
(iv) Records exempt from disclosure pursuant to FOIA exemption (1)
(National security) (5 U.S.C. 552(b)), unless such records have been
properly declassified.
(v) Records exempt from disclosure pursuant to the attorney-client
privilege under FOIA exemption (5) (5 U.S.C. 552(b)), unless the client
consents to the disclosure.
(6) Records within a category for which withholding of the record
is discretionary (AR 25-55, paragraph 3-101), such as exemptions under
the deliberative process or attorney work product privileges (exemption
(5) (5 U.S.C. 552(b)) may be released when there is no foreseeable harm
to government interests in the judgment of the releasing authority.
(7) When it is determined that exempt information should not be
released, or a question as to its releaseability exists, forward the
request and two copies of the responsive documents to the Commander
USARCS. The Commander USARCS, acting on behalf of TJAG (the initial
denial authority), may deny release of records processed under the FOIA
only. The Commander USARCS, will forward to TJAG all such requests
processed under both the FOIA and PA. TJAG is the denial authority for
Privacy Act requests (AR 340-21, paragraph 1-7i).
(c) Claims assistance. In the vicinity of a field exercise,
maneuver or disaster, claims personnel may disseminate information on
the right to present claims, procedures to be followed, and the names
and location of claims officers and the COE 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 as much pertinent information and evidence as security
considerations permit.
Sec. 536.17 Single-service claims responsibility (DODD 5515.8 and
DODD 5515.9).
(a) Assignment for DOD claims. The Army is responsible for
processing DOD claims pursuant to DODD 5515.9 (posted on the USARCS Web
site; for the address see Sec. 536.2(a)).
(b) Statutes and agreements. DOD has assigned single-service
responsibility for the settlement of certain claims in certain
countries, pursuant to DODD 5515.8 (posted on the USARCS Web
[[Page 46269]]
site; for the address see Sec. 536.2(a)) under the following statutes
and agreements:
(1) FCA (10 U.S.C. 2734);
(2) MCA (10 U.S.C. 2733);
(3) Status of Forces Agreements (10 U.S.C. 2734a and 2734b);
(4) NATO SOFA (4 U.S.T. 1792, Treaties and International Acts
Series (T.I.A.S.) 2846) and other similar agreements;
(5) FCCA (31 U.S.C. 3711-3720E) and FMCRCA (42 U.S.C. 2651-2653);
(6) Claims not cognizable under any other provision of law, 10
U.S.C. 2737; and
(7) Advance payments, 10 U.S.C. 2736.
(c) Specified foreign countries. Responsibility for the settlement
of claims cognizable under the laws listed above has been assigned to
military departments pursuant to DODD 5515.8, as supplemented by
executive agreement and other competent directives.
(d) When claims responsibility has not been assigned. When
necessary to implement contingency plans, the unified or specified
commander with authority over the geographic area in question may, on
an interim basis before receiving confirmation and approval from the
General Counsel, DOD, assign single-service responsibility for
processing claims in countries where such assignment has not already
been made.
Note to Sec. 536.17: See also Sec. 536.32 for information on
transferring claims among armed services branches.
Sec. 536.18 Cross-servicing of claims.
(a) Where claims responsibility has not been assigned. Claims
cognizable under the FCA or the MCA that are generated by another
military department within a foreign country for which single-service
claims responsibility has not been assigned, may be settled by the Army
upon request of the military department concerned. Conversely, Army
claims may in appropriate cases be referred to another military
department for settlement, DODD 5515.8, E1.2 (posted on the USARCS Web
site; for the address see Sec. 536.2(a)). Tables listing claims
offices worldwide are posted to the USARCS Web site at that address.
U.S. Air Force claims offices may be identified by visiting the Web
site at http://afmove.hq.af.mil/page_afclaims.asp.
(b) Claims generated by the Coast Guard. Claims resulting from the
activities of, or generated by, Coast Guardsmen or civilian employees
of the Coast Guard while it is operating as a service of the U.S.
Department of Homeland Security may upon request be settled under this
part by a foreign claims commission appointed as authorized herein, but
they will be paid from Coast Guard appropriations, 10 U.S.C. 2734.
(c) SOFA claims within the United States. Claims cognizable under
the NATO PFP or Singaporean SOFAs arising out of the activities of
aircraft within the United States may be investigated and adjudicated
by the U.S. Air Force under a delegation from the Commander USARCS.
Claims exceeding the delegated amount will be adjudicated by the
USARCS.
(d) Claims generated by the American Battle Monuments Commission.
Claims arising out of the activities of or in cemeteries outside the
United States managed by the American Battle Monuments Commission (36
U.S.C. 2110) will be investigated and adjudicated by the U.S. Army.
Note to Sec. 536.18: See also Sec. 536.32 for information on
transferring claims among armed services branches.
Sec. 536.19 Disaster claims planning.
All ACOs will prepare a disaster claims plan and furnish a copy to
USARCS. See DA Pam 27-162, paragraph 1-21 for specific requirements
related to disaster claims planning.
Sec. 536.20 Claims assistance visits.
Members of USARCS and command claims services will make claims
assistance visits to field offices on a periodic basis. See DA Pam 27-
162, paragraph 1-22 for specific requirements related to claims
assistance visits.
Sec. 536.21 Annual claims award.
The Commander USARCS will make an annual claims award to
outstanding field offices. See DA Pam 27-162, para 1-23 for more
information on annual claims awards.
Subpart B--Investigation and Processing of Claims
Sec. 536.22 Claims investigative responsibility--general.
(a) Scope. This subpart addresses the investigation, processing,
evaluation, and settlement of tort and tort-related claims for and
against the United States. The provisions of this subpart do not apply
to personnel claims (AR 27-20, chapter 11), or to claims under subpart
G of this part, Sec. Sec. 536.113 through 536.116.
(b) Cooperation. Claims investigation requires team effort between
the U.S. Army Claims Service (USARCS), command claims services, and
area claims offices (ACOs) including U.S. Army Corps of Engineers (COE)
District Offices, claims processing offices (CPOs), and unit claims
officers. Essential to this effort is the immediate investigation of
claims incidents. Prompt investigation depends on the timely reporting
of claims incidents as well as continuous communication between all
commands or echelons bearing claims responsibility.
(c) Notification to USARCS. A CPO or an ACO receiving notice of a
potentially compensable event (PCE) that requires investigation will
immediately refer it to the appropriate claims office. The Commander
USARCS will be notified of all major incidents involving serious injury
or death or those in which property damage exceeds $50,000. A command
claims service may delegate to an ACO the responsibility for advising
USARCS of serious incidents and complying with mirror file
requirements. A copy of the written delegation and any changes made
thereafter will be forwarded to the Commander USARCS.
(d) Geographic concept of responsibility. A command claims service
or an ACO in whose geographic area a claims incident occurs is
primarily responsible for initiating investigation and processing of
any claim filed in the absence of a formal transfer of responsibility
(see Sec. Sec. 536.30 through 536.36). DOD and Army organizations
whose personnel are involved in the incident will cooperate with and
assist the ACO, regardless of where the former may be located.
Note to Sec. 536.22: See the parallel discussion at DA Pam 27-
162, paragraph 2-1.
Sec. 536.23 Identifying claims incidents both for and against the
government.
(a) Investigation is required when:
(1) There is property loss or damage.
(i) Property other than that belonging to the government is
damaged, lost, or destroyed by an act or omission of a government
employee or a member of North Atlantic Treaty Association (NATO),
Australian or Singaporean forces stationed or on temporary duty within
the United States.
(ii) Property belonging to the government is damaged or lost by a
tortious act or omission not covered by the report of survey system or
by a carrier's bill of lading.
(2) There is personal injury or death.
(i) A civilian other than an employee of the U.S. government is
injured or killed by an act or omission of a
[[Page 46270]]
government employee or by a member of a NATO, Australian or Singaporean
force stationed or on temporary duty within the United States. (This
category includes patients injured during treatment by a health care
provider).
(ii) Service members, active or retired, family members of either,
or U.S. employees, are injured or killed by a third party and receive
medical care at government expense.
(3) A claim is filed.
(4) A competent authority or another armed service or federal
agency requires investigation.
(b) Determining who is a government employee is a matter of
federal, not local, law. Categories of government employees usually
accepted as tortfeasors under federal law are:
(1) Military personnel (soldiers of the Army, or members of other
services where the Army exercises single-service jurisdiction on
foreign soil; and soldiers or employees within the United States who
are members of NATO or of other foreign military forces with whom the
United States has a reciprocal claims agreement and whose sending
States have certified that they were acting within the scope of their
duty) who are serving on full-time active duty in a pay status,
including soldiers:
(i) Assigned to units performing active or inactive duty.
(ii) Serving on active duty as Reserve Officer Training Corps
(ROTC) instructors.
(iii) Serving as Army National Guard (ARNG) instructors or
advisors.
(iv) On duty or training with other federal agencies, for example:
The National Aeronautics and Space Administration, the Department of
State, the Navy, the Air Force, or DOD (federal agencies other than the
armed service to which the Soldier is attached may also provide a
remedy).
(v) Assigned as students or ordered into training at a non-federal
civilian educational institution, hospital, factory, or other facility
(excluding soldiers on excess leave or those for whom the training
institution or organization has assumed liability by written
agreement).
(vi) Serving on full-time duty at nonappropriated fund (NAF)
activities.
(vii) Of the United States Army Reserve (USAR) and ARNG on active
duty under Title 10, U.S.C.
(2) Military personnel who are United States Army Reserve soldiers
including ROTC cadets who are Army Reserve soldiers while at annual
training, during periods of active duty and inactive duty training.
(3) Military personnel who are soldiers of the ARNG while engaged
in training or duty under 32 U.S.C. 316, 502, 503, 504, 505, or engaged
in properly authorized community action projects under the Federal Tort
Claims Act (FTCA), the Non-Scope Claims Act (NSCA), or the National
Guard Claims Act (NGCA), unless performing duties in furtherance of a
mission for a state, commonwealth, territory or possession.
(4) 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 the
following:
(i) Civil service and other full-time employees of both the DOD and
DA who are paid from appropriated funds.
(ii) Persons providing direct health care services pursuant to
personal service contracts under 10 U.S.C. 1089 or 1091 or where
another person exercised control over the health care provider's day-
to-day practice. When the conduct of a health care provider performing
services under a personal service contract is implicated in a claim,
the CJA, Medical Claims Judge Advocate (MCJA), or claims attorney
should consult with USARCS to determine if that health care provider
can be considered an employee for purposes of coverage.
(iii) Employees of a NAF instrumentality (NAFI) if it is an
instrumentality of the United States and thus a federal agency. To
determine whether a NAFI is a ``federal agency,'' consider both whether
it is an integral part of the Army charged with an essential DA
operational function and also what degree of control and supervision DA
personnel exercise over it. Members or users, unlike employees of
NAFIs, are not considered government employees; the same is true of
family child care providers. However, claims arising out of the use of
some NAFI property or from the acts or omissions of family child care
providers may be payable from such funds under subpart K of this part
as a matter of policy, even when the user is not acting within the
scope of employment and the claim is not otherwise cognizable under any
of the other authorities described in this part.
(5) Prisoners of war and interned enemy aliens.
(6) Civilian employees of the District of Columbia ARNG, including
those paid under ``service contracts'' from District of Columbia funds.
(7) Civilians serving as ROTC instructors paid from Federal funds.
(8) ARNG technicians employed under 32 U.S.C. 709(a) for claims
accruing on or after January 1, 1969 (Pub. L. 90-486, August 13, 1968
(82 Stat. 755)), unless performing duties solely in pursuit of a
mission for a state, commonwealth, territory or possession.
(9) Persons acting in an official capacity for the DOD or DA either
temporarily or permanently with or without compensation, including but
not limited to the following:
(i) Dollar-a-year personnel.
(ii) Members of advisory committees, commissions, or boards.
(iii) Volunteers serving in an official capacity in furtherance of
the business of the United States, limited to those categories set
forth in DA Pam 27-162, paragraph 2-45.
Note to Sec. 536.23: See the parallel discussion at DA Pam 27-
162, paragraph 2-2.
Sec. 536.24 Delegation of investigative responsibility.
(a) Area Claims Office. An ACO is authorized to carry out its
investigative responsibility as follows:
(1) At the request of the area claims authority, commanders and
heads of Army and DOD units, activities, or components will appoint a
commissioned, warrant, or noncommissioned officer or a qualified
civilian employee to investigate a claims incident in the manner set
forth in DA Pam 27-162 and this part. An ACO will direct such
investigation to the extent deemed necessary.
(2) CPOs are responsible for investigating claims incidents arising
out of the activities and operations of their command or agency. An ACO
may assign area jurisdiction to a CPO after coordination with the
appropriate commander to investigate claims incidents arising in the
ACO's designated geographic area. (See Sec. 536.3(f)).
(3) Claims incidents involving patients arising from treatment by a
health care provider in an Army medical treatment facility (MTF),
including providers defined in 536.23(b)(4)(ii), will be investigated
by a claims judge advocate (CJA), medical claims judge advocate (MCJA),
or claims attorney rather than by a unit claims officer.
(4) An ACO will publish and distribute a claims directive to all
DOD and Army installations and activities including active, Army
Reserve, and ARNG units as well as units located on the post at which
the ACO is located. The directive will outline each installation's and
activity's claims responsibilities. It will institute a serious claims
incident reporting system.
(b) Command claims service responsibility. A command claims
[[Page 46271]]
service is responsible for the investigation and processing of claims
incidents arising in its geographic area of responsibility or for any
incidents within the authority of any foreign claims commission (FCC)
it appoints. This responsibility will be carried out by an ACO or a CPO
to the extent possible. A command claims service will publish a claims
directive outlining the geographic areas of claims investigative
responsibilities of each of its installations and activities, requiring
each ACO or CPO to report all serious claims incidents directly to the
Commander USARCS.
(c) USARCS responsibility. USARCS exercises technical supervision
over all claims offices, providing guidance on specific cases
throughout the claims process, including the method of investigation.
Where indicated, USARCS may investigate a claims incident that normally
falls within a command claims service's, an ACO's, or a CPO's
jurisdiction. USARCS typically acts through an area action officer
(AAO) who is assigned as the primary point of contact with command
claims services, ACOs or CPOs within a given geographic area. In areas
outside the United States and its commonwealths, territories and
possessions, where there is no command claims service or ACO, USARCS is
responsible for investigation and for appointment of FCCs.
Note to Sec. 536.24: See the parallel discussion at DA Pam 27-
162, paragraph 2-3.
Sec. 536.25 Procedures for accepting claims.
All ACOs and CPOs will institute procedures to ensure that
potential claimants or attorneys speak to a CJA, claims attorney,
investigator, or examiner. On initial contact, claims personnel will
render assistance, discuss all aspects of the potential claim, and
determine what statutes or procedures apply. Assistance will be
furnished to the extent set forth in DA Pam 27-162, paragraph 2-4. To
advise claimants on the correct remedy, claims personnel will
familiarize themselves with the remedies listed in DA Pam 27-162,
paragraphs 2-15 and 2-17.
Sec. 536.26 Identification of a proper claim.
(a) A claim is a writing that contains a sum certain for each
claimant and that is signed by each claimant, or by an authorized
representative, who must furnish written authority to sign on a
claimant's behalf. The writing must contain enough information to
permit investigation. The writing must be received not later than two
years from the date the claim accrues. A claim under the Foreign Claims
Act (FCA) may be presented orally to either the United States or the
government of the foreign country in which the incident occurred,
within two years, provided that it is reduced to writing not later than
three years from the date of accrual. A claim may be transmitted by
facsimile or telegram. However, a copy of an original claim must be
submitted as soon as possible.
(b) Where a claim is only for property damage and it is filed under
circumstances where there might be injuries, the CJA should inquire if
the claimant desires to split the claim as discussed in Sec. 536.60.
(c) Normally, a claim will be presented on a Standard Form (SF) 95
(Claim for Damage, Injury, or Death). When the claim is not presented
on an SF 95, the claimant will be requested to complete an SF 95 to
ease investigation and processing.
(d) If a claim names two claimants and states only one sum certain,
the claimants will be requested to furnish a sum certain for each. A
separate sum certain must be obtained prior to payment under the
Federal Tort Claims Act (FTCA), Military Claims Act (MCA), National
Guard Claims Act (NGCA) or the FCA. The Financial Management Service
will only pay an amount above the threshold amount of $2,500 for the
FTCA, or $100,000 for the other statutes.
(e) A properly filed claim meeting the definition of ``claim'' in
paragraph (a) of this section tolls the two-year statute of limitations
(SOL) even though the documents required to substantiate the claim are
not present, such as those listed on the back of an SF 95 or in the
Attorney General's regulations implementing the FTCA, 28 CFR 14.1-
14.11. However, refusal to provide such documents may lead to dismissal
of a subsequent suit under the FTCA or denial of a claim under other
subparts of this part.
(f) Receipt of a claim by another federal agency does not toll the
SOL. Receipt of a U.S. Army claim by DOD, Navy, or Air Force does toll
the SOL.
(g) The guidelines set forth in federal FTCA case law will apply to
other subparts of this part in determining whether a proper claim was
filed.
Note to Sec. 536.26: See the parallel discussion at DA Pam 27-
162, paragraph 2-5.
Sec. 536.27 Identification of a proper claimant.
The following are proper claimants:
(a) Claims for property loss or damage. A claim may be presented by
the owner of the property or by a duly authorized agent or legal
representative in the owner's name. As used in this part, the term
``owner'' includes the following:
(1) For real property. The mortgagor, mortgagee, executor,
administrator, or personal representative, if he or she may maintain a
cause of action in the local courts involving a tort to the specific
property, is a proper claimant. When notice of divided interests in
real property is received, the claim should if feasible be treated as a
single claim and a release from all interests must be obtained. This
includes both the owner and tenant where both claim.
(2) For personal property. A claim may be presented by a bailee,
lessee, mortgagee, conditional vendor, or others holding title for
purposes of security only, unless specifically prohibited by the
applicable subpart. When notice of divided interests in personal
property is received, the claim should if feasible be treated as a
single claim; a release from all interests must be obtained. Property
loss is defined as loss of actual tangible property, not consequential
damage resulting from such loss.
(b) Claims for personal injury or wrongful death. (1) For personal
injury. A claim may be presented by the injured person or by a duly
authorized agent or legal representative or, where the claimant is a
minor, by a parent or a person in loco parentis. However, determine
whether the claimant is a proper claimant under applicable state law
or, if considered under the MCA, under Sec. 536.77. If not, the
claimant should be so informed in the acknowledgment letter and
requested to withdraw the claim. If not withdrawn, deny the claim
without delay. An example is a claim filed on behalf of a minor for
loss of consortium for injury to a parent where not permitted by state
law. Personal injury claims deriving from the principal injury may be
presented by other parties. A claim may not be presented by a
``volunteer,'' meaning one who has no legal or contractual obligation,
yet voluntarily pays damages on behalf of an injured party and then
seeks reimbursement for their economic damages by filing a claim. See
paragraph (f)(3) of this section.
(2) For wrongful death. A claim may be presented by the executor or
administrator of the deceased's estate, or by any person determined to
be legally or beneficially entitled under applicable local law. The
amount allowed will be apportioned, to the extent practicable, among
the beneficiaries in accordance with the law applicable to the
incident. Under the MCA (subpart C of this part), only one wrongful
death claim is authorized (see Sec. 536.77(c)(1)(i)). Under
[[Page 46272]]
subparts D and H of this part, a claim by the insured for property
damage may be considered as a claim by the insurer as the real party in
interest provided the insured has been reimbursed by the insurer and
the insurance information is listed on the SF 95. The insurer should be
required to file a separate SF 95 for payment purposes even though the
SOL has expired. Where the insurance information is not listed on the
SF 95 and the insured is paid by the United States, the payment of the
insurer is the responsibility of the insured even though the insurer
subsequently files a timely claim. To avoid this situation, always
inquire as to the status of any insurance prior to payment of a
property damage claim.
(c) By an agent or legal representative. A claimant's agent or
legal representative who presents a claim will do so in the claimant's
name and sign the form in such a way that indicates the agent's or
legal representative's title or capacity. When a claim is presented by
an agent or legal representative:
(1) It must contain written evidence of the agent's or legal
representative's authority to sign, such as a power of attorney, or
(2) It must refer to or cite the statute granting authority.
(d) 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, under subpart D or H of this part
only. A lienholder is not a proper claimant and should be distinguished
from a subrogee to avoid violation of the Antiassignment Act. See
paragraph (f) of this section. However, liens arising under Medicare
will be processed directly with the Center for Medicare and Medicaid
Systems. See DA Pam 27-162, paragraphs 2-57g and h and 2-58.
(e) Contribution or indemnity. A claim may be filed for
contribution or indemnification by the party who was held liable as a
joint tortfeasor where authorized by state law. Such a claim is not
perfected until payment has been made by the claimant/joint tortfeasor.
A claim filed for contribution prior to payment being made should be
considered as an opportunity to share a settlement where the United
States is liable.
(f) Transfer or assignment. (1) Under the Antiassignment Act (31
U.S.C. 3727) and Defense Finance and Accounting Service--Indianapolis
(DFAS-IN) regulation 37-1, a transfer or assignment is null and void
except where it occurs by operation of law or after a voucher for the
payment has been issued. The following are null and void:
(i) Every purported transfer or assignment of a claim against the
United States, or any interest, in whole or in part, on a claim,
whether absolute or conditional; and
(ii) Every power of attorney or other purported authority to
receive payment for all or part of any such claim.
(2) The Antiassignment Act was enacted 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 workers' compensation claims are cognizable when presented
by the insurer under subpart D or H of this part, but not other
subparts.
(4) Subrogated claims that arise pursuant to contractual provisions
may be paid to the subrogee, if the legal basis for the subrogated
claim is recognized by state statute or case law, only under subpart D
or H of this part. For example, an insurer that issues an insurance
policy becomes subrogated to the rights of a claimant who receives
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 a federal or state statute
or a subrogation contract held valid by state law.
(g) Interdepartmental waiver rule. Neither the U.S. government nor
any of its instrumentalities are proper claimants due to the
interdepartmental waiver rule. This rule bars claims by any
organization or activity of the Army, whether or not the organization
or activity is funded with appropriated or nonappropriated funds.
Certain federal agencies are authorized by statute to file claims, for
example, Medicare and the Railroad Retirement Commission. See DA Pam
27-162, paragraph 2-17f.
(h) States are excluded. If a state, U.S. commonwealth, territory,
or the District of Columbia maintains a unit to which ARNG personnel
causing the injury or damage are assigned, such governmental entity is
not a proper claimant for loss or damage to its property. A unit of
local government other than a state, commonwealth, or territory is a
proper claimant.
Note to Sec. 536.27: See the parallel discussion at DA Pam 27-
162, paragraph 2-6.
Sec. 536.28 Claims acknowledgment.
Claims personnel will acknowledge all claims immediately upon
receipt, in writing, by telephone, or in person. A defective claim will
be acknowledged in writing, pointing out its defects. Where the defects
render the submission jurisdictionally deficient based on the
requirements discussed in DA Pam 27-162, paragraphs 2-5 and 2-6, the
claimant or attorney will be informed in writing of the need to present
a proper claim no later than two years from the date of accrual. Suit
must be filed in maritime claims not later than two years from the date
of accrual. See Sec. 536.122. In any claim for personal injury or
wrongful death, an authorization signed by the patient, natural or
legal guardian or estate representative will be obtained authorizing
the use of medical information, including medical records, in order to
use sources other than claims personnel to evaluate the claim as
required by the Health Care Portability and Accountability Act (HIPAA),
42 U.S.C. 1320d-1320d-8. See the parallel discussion at DA Pam 27-162,
paragraph 2-7.
Sec. 536.29 Revision of filed claims.
(a) General. A revision or change of a previously filed claim may
constitute an amendment or a new claim. Upon receipt, the CJA must
determine whether a new claim has been filed. If so, the claim must be
logged with a new number and acknowledged in accordance with Sec.
536.27.
(b) New claim. A new claim is filed whenever the writing alleges a
new theory of liability, a new tortfeasor, a new party claimant, a
different date or location for the claims incident, or other basic
element that constitutes an allegation of a different tort not
originally alleged. If the allegation is made verbally or by e-mail,
the claimant will be informed in writing that a new SF 95 must be
filed. A new claim must be filed not later than two years from the
accrual date under the FTCA. Filing a new claim creates an additional
six month period during which suit may not be filed.
(c) Amendment. An increase or decrease in the amount claimed
constitutes an amendment, not a new claim. Similarly, the addition of
[[Page 46273]]
required information not on the original claim constitutes an
amendment. Examples are date of birth, marital status, military status,
names of witnesses, claimant's address, description, or location of
property or insurance information. An amendment may be filed before or
after the two year SOL has run unless final action has been taken. A
new number will not be assigned to an amended claim; however, a change
in the amount will be annotated in the database.
Note to Sec. 536.29: See the parallel discussion at DA Pam 27-
162, paragraph 2-8.
Sec. 536.30 Action upon receipt of claim.
(a) A properly filed claim stops the running of the SOL when it is
received by any organization or activity of the DOD or the U.S. Armed
Services. Placing a claim in the mail does not constitute filing. The
first Army claims office that receives the claim will date, time stamp,
and initial the claim as of the date the claim was initially received
``on post,'' not by the claims office. If initially received close to
the SOL's expiration date by an organization or activity that does not
have a claims office, claims personnel will discover and record in the
file the date of original receipt.
(b) The ACO or CPO that first receives the claim will enter the
claim into the Tort and Special Claims Application (TSCA) database and
let the system assign a number to the claim. The claim, whether on an
SF 95 or in any other format, shall be scanned into a computer and
uploaded onto the TSCA database so that it will become a permanent part
of the electronic record. A joint claim will be given a number for each
claimant, for example, husband and wife, injured parent and children.
If only one sum is filed for all claimants, the same sum will be
assigned for each claimant. However, request the claimant to name a sum
for each claimant. The claim will bear this number throughout the
claims process. Upon transfer, a new number will not be assigned by the
receiving office. If a claim does not meet the definition of a proper
claim under Sec. Sec. 536.26 and 536.27, it will be date stamped and
logged as a Potentially Compensable Event (PCE).
(c) The claim will be transferred if the claim incident arose in
another ACO's geographic area; the receiving ACO will use the claims
number originally assigned.
(d) Non-Appropriated Fund Instrumentality (NAFI) claims that relate
to claims determined cognizable under subpart K of this part will be
marked with the symbol ``NAFI'' immediately following the claimant's
name, to preclude erroneous payment from appropriated funds (APF). This
symbol will also be included in the subject line of all correspondence.
(e) Upon receipt, copies of the claims will be furnished as follows
(when a current e-mail address is available and it is agreeable with
the receiving party, providing copies by e-mail is acceptable):
(1) To USARCS, if the amount claimed exceeds $25,000, or $50,000
per incident. However, if the claim arises under the FTCA or AMCSA,
only furnish copies if the amount claimed exceeds $50,000, or $100,000
per incident.
(2) For medical malpractice claims, to the appropriate MTF
Commander/s through MEDCOM Headquarters, and to the Armed Forces
Institute of Pathology at the addresses listed below.
MEDCOM, ATTN: MCHO-CL-Q, 2050 Worth Road, Suite 26, Fort Sam
Houston, Texas 78234-5026.
Department of Legal Medicine, Armed Forces Institute of
Pathology, 1335 E. West Highway, 6-100, Silver Spring, MD
20910-6254, Commercial: 301-295-8115, E-Mail: casha@afip.osd.mil.
(3) If the claim is against AAFES forward a copy to: HQ Army and
Air Force Exchange Service (AAFES), ATTN: Office of the General Counsel
(GC-Z), P.O. Box 650062, Dallas, TX 75265-0062, E-Mail:
blanchp@aafes.com.
(4) If the claim involves a NAFI, including a recreational user or
family child care provider forward a copy to: Army Central Insurance
Fund, ATTN: CFSC-FM-I, 4700 King Street, Alexandria, VA 22302-4406, E-
Mail: riskmanagement@cfsc.army.mil.
(f) ACOs or CPOs will furnish a copy of any medical or dental
malpractice claim to the MTF or dental treatment facility commander and
advise the commander of all subsequent actions. The commander will be
assisted in his or her responsibility to complete DD Form 2526 (Case
Abstract for Malpractice Claims).
Note to Sec. 536.30: See the parallel discussion at DA Pam 27-
162, paragraph 2-9.
Sec. 536.31 Opening claim files.
A claim file will be opened when:
(a) Information that requires investigation under Sec. 536.23 is
received.
(b) Records or other documents are requested by a potential
claimant or legal representative.
(c) A claim is filed.
Note to Sec. 536.31: See the parallel discussion at DA Pam 27-
162, paragraph 2-10.
Sec. 536.32 Transfer of claims among armed services branches.
(a) Claims filed with the wrong federal agency, or claims that
should be adjudicated by receiving State offices under NATO or other
SOFA, will be immediately transferred to the proper agency together
with notice of same to the claimant or legal representative. Where
multiple federal agencies are involved, other agencies will be
contacted and a lead agency established to take all actions on the
claim. Where the DA is the lead agency, any final action will include
other agencies. Similarly, where another agency is the lead agency,
that agency will be requested to include DA in any final action. Such
inclusion will prevent multiple dates for filing suit or appeal.
(b) If another agency has taken denial action on a claim that
involves the DA, without informing the DA, and in which the DA desires
to make a payment, the denial action may be reconsidered by the DA not
later than six months from the date of mailing and payment made
thereafter.
Note to Sec. 536.32: See also Sec. Sec. 536.17 and 536.18; AR
27-20, paragraph 13-2; and the parallel and related discussion of
this topic at DA Pam 27-162, paragraphs 1-19, 1-20, 2-13 and 13-2.
Sec. 536.33 Use of small claims procedures.
Small claims procedures are authorized for use whenever a claim may
be settled for $5,000 or less. These procedures are designed to save
processing time and eliminate the need for most of the documentation
otherwise required. These procedures are described in DA Pam 27-162,
paragraphs 2-14 and 2-26.
Sec. 536.34 Determination of correct statute.
(a) Consideration under more than one statute. When Congress
enacted the various claims statutes, it intended to allow federal
agencies to settle meritorious claims. A claim must be considered under
other statutes in this part unless one particular statute precludes the
use of other statutes, whether the claim is filed on DD Form 1842
(Claim for Loss of or Damage to Personal Property Incident to Service)
or SF 95. Prior to denial of an AR 27-20, chapter 11 claim, consider
whether it may fall within the scope of subparts C, D, or F of this
part, and where indicated, question the claimant to determine whether
the claim sounds in tort.
(b) Exclusiveness of certain remedies. Certain remedies exclude all
others. For
[[Page 46274]]
example, the Court of Federal Claims has exclusive jurisdiction over
U.S. Constitution Fifth Amendment takings, express or implied-in-fact,
as well as governmental contract losses, or intangible property losses.
Claims of this nature for $10,000 or less may be filed in a U.S.
District Court. There is no administrative remedy. While the FTCA is
the preemptive tort remedy in the United States, its commonwealths,
territories and possessions, nevertheless, other remedies must be
exhausted prior to favorable consideration under the FTCA. The FTCA
does not preclude use of the MCA or the NGCA for claims arising out of
noncombat activities or brought by soldiers for incident-to-service
property losses sustained within the United States. See DA Pam 27-162,
paragraphs 2-15a and b for a more detailed discussion of determining
the correct statute for property claims versus personal injury and
death claims. In addition, it is important to consider the nature of
the claim, e.g., whether the claim may be medical malpractice in
nature, related to postal matter, or an automobile accident.
Discussions of these and many other different types of claims are also
provided herein as well as in the corresponding paragraph 2-15 of DA
Pam 27-162. It is also very important to consider when a claim may fall
outside the jurisdiction of the Army claims system. Some of these
instances are alluded to immediately above, but for a detailed
discussion of related remedies see Sec. 536.36 of this part and
paragraph 2-17 of DA Pam 27-162.
(c) Status of Forces Agreement Claims. (1) Claims arising out of
the performance of official duties in a foreign country where the
United States is the sending State must be filed and processed under a
SOFA, provided that the claimant is a proper party claimant under the
SOFA. DA Pam 27-162, paragraph 2-15c sets forth the rules applicable in
particular countries. A SOFA provides an exclusive remedy subject to
waiver as set forth in Sec. 536.76(h) of this part.
(2) Single-service jurisdiction is established for all foreign
countries in which a SOFA is in effect and for certain other countries.
A list of these countries is posted on the USARCS Web site; for the
address see Sec. 536.2(a). Claims will be processed by the service
exercising single-service responsibility. In the United States, USARCS
is the receiving State office and all SOFA claims should be forwarded
immediately to USARCS for action. Appropriate investigation under
subpart B of this part procedures is required of an ACO or a CPO under
USARCS' direction.
(d) Foreign Claims Act claims. (1) Claims by foreign inhabitants,
arising in a foreign country, which are not cognizable under a SOFA,
fall exclusively under the FCA. The determination as to whether a
claimant is a foreign inhabitant is governed by the rules set out in
subpart C and subpart J of this part. In case of doubt, this
determination must be based on information obtained from the claimant
and others, particularly where the claimant is a former U.S. service
member or a U.S. citizen residing in a foreign country.
(2) Tort claims will be processed by the armed service that
exercises single-service responsibility. When requested, the Commander
USARCS may furnish a Judge Advocate or civilian attorney to serve as a
Foreign Claims Commission (FCC) for another service. With the
concurrence of the Commander USARCS, Army JAs may be appointed as
members of another department's foreign claims commissions. See Subpart
J of this part. The FCA permits compensation for damages caused by
``out-of-scope'' tortious conduct of Soldier and civilian employees.
Many of these claims are also compensable under Article 139, Uniform
Code of Military Justice. See DA Pam 27-162, chap. 9. To avoid the
double payment of claims, ACOs and CPOs must promptly notify the
Command Claims Service of each approved Article 139 claim involving a
claimant who could also file under an applicable SOFA.
(e) National Guard Claims Act claims. (1) Claims attributed to the
acts or omissions of ARNG personnel in the course of employment fall
into the categories set forth in subpart F of this part.
(2) An ACO will establish with a state claims office routine
procedures for the disposition of claims, designed to ensure that the
United States and state authorities do not issue conflicting
instructions for processing claims. The procedures will require
personnel to advise the claimant of any remedy against the state or its
insurer.
(i) Where the claim arises out of the act or omission of a member
of the ARNG or a person employed under 32 U.S.C. 709, it must be
determined whether the employee is acting on behalf of the state or the
United States. For example, an ARNG pilot employed under section 709
may be flying on a state mission, federal mission, or both, on the same
trip. This determination will control the disposition of the claim. If
agreement with the concerned state cannot be reached and the claim is
otherwise payable, efforts may be made to enter into a sharing
agreement with the state concerned. The following procedures are
required in the event there is a remedy against the state and the state
refuses to pay or the state maintains insurance coverage and the
claimant has filed an administrative claim against the United States.
First, forward the file and the tort claim memorandum, including
information on the status of any judicial or administrative action the
claimant has taken against the state or its insurer to the Commander
USARCS. Upon receipt, the Commander USARCS will determine whether to
require the claimant to exhaust his or her remedy against the state or
its insurer or whether the claim against the United States can be
settled without requiring such exhaustion. If the Commander USARCS
decides to follow the latter course of action, he or she will also
determine whether to obtain an assignment of the claim against the
state or its insurer and whether to initiate recovery action to obtain
contribution or indemnification. The state or its insurer will be given
appropriate notification in accordance with state law.
(ii) If an administrative claim remedy exists under state law or
the state maintains liability insurance, the Commander USARCS or an ACO
acting upon the Commander USARCS' approval may enter into a sharing
agreement covering payment of future claims. The purpose of such an
agreement is to determine in advance whether the state or the DA is
responsible for processing a claim (did the claim arise from a federal
or state mission?), to expedite payment in meritorious claims, and to
preclude double recovery by a claimant.
(f) Third-party claims involving an independent contractor.
(1) Generally. (i) Upon receipt, all claims will be examined to
determine whether a contractor of the United States is the tortfeasor.
If so, the claimant or legal representative will be notified of the
name and address of the contractor and further advised that the United
States is not responsible for the acts or omissions of an independent
contractor. This will be done prior to any determination as to the
contractor's degree of culpability as compared to that of the United
States.
(ii) If, upon investigation, the damage is considered to be
primarily due to the contractor's fault or negligence, the claim will
be referred to the contractor or the contractor's insurance carrier for
settlement and the claimant will be so advised.
[[Page 46275]]
(iii) Health care providers hired under personal services contracts
under the provisions of 10 U.S.C. 1089 are not considered to be
independent contractors but employees of the United States for tort
claims purposes.
(2) Claims for injury or death of contractor employees. Upon
receipt of a claim for injury or death of a contractor employee, a copy
of the portions of the contract applicable to claims and workers'
compensation will be obtained, either through the contracting office or
from the contractor. Claims personnel must find out the status of any
claim for workers' compensation benefits as well as whether the United
States paid the premiums. The goal is to involve the contractor in any
settlement, where indicated, in the manner set forth in DA Pam 27-162,
paragraphs 2-15f and 2-61. In claims arising in foreign countries
consider whether the claim is covered by the Defense Bases Act, 42
U.S.C. 1651-1654.
(g) Claims by contractors for damage to or loss of their property
during the performance of their contracts. Claims by contractors for
property damage or loss should be referred to the contracting officer
for determination as to whether the claim is payable under the
contract. Such a claim is not payable under the FTCA where the damage
results from an in-scope act or omission. Contract appeal procedures
must be exhausted prior to consideration as a bailment under the MCA or
FCA.
(h) Maritime claims. Maritime torts are excluded from consideration
under the FTCA. The various maritime statutes are exclusive remedies
within the United States and its territorial waters. Maritime statutes
include the Army Maritime Claims Settlement Act (AMCSA), 10 U.S.C.
4801, 4802 and 4806, the Suits in Admiralty Act (SIAA), 46 U.S.C. app.
781-790, the Public Vessels Act (PVA), 46 U.S.C. app. 781-790, and the
Admiralty Extension Act (AEA), 46 U.S.C. app. 740. Within the U.S. and
its territorial waters, maritime suits may be filed under the SIAA or
the PVA without first filing an administrative claim, except where
administrative filing is required by the AEA. Administrative claims may
also be filed under the AMSCA. In any administrative claim brought
under the AMCSA, all action must be completed not later than two years
from its accrual date or the SOL will expire. Outside the United
States, a maritime tort may be brought under the MCA or FCA as well as
the AMCSA. The body of water on which it occurs must be navigable and a
maritime nexus must exist. Once a maritime claim is identified, give
the claimant written notice of the two-year filing requirement. In case
of doubt, the ACO or CPO should discuss the matter with the appropriate
AAO. Even when the claimant does not believe that a maritime claim is
involved, provide the claimant with precautionary notice. See DA Pam
27-162, paragraphs 2-7e and 8-6.
(i) Postal claims. See also DA Pam 27-162, paragraphs 2-15i, 2-30
and 2-56g discussing postal claims.
(1) Claims by the U.S. Postal Service for funds and stock are
adjudicated by USARCS with assistance from the Military Postal Service
Agency and the ACO or CPO having jurisdiction over the particular Army
post office, when directed by USARCS to assist in the investigation of
the claim.
(2) Claims for loss of registered and insured mail are processed
under subpart C of this part by the ACO or CPO having jurisdiction over
the particular Army post office.
(3) Claims for loss of, or damage to, parcels delivered by United
Parcel Service (UPS) are the responsibility of UPS.
(j) Blast damage claims. After completing an investigation and
prior to final action, all blast damage claims resulting from Army
firing and demolition activities must be forwarded to the Commander
USARCS for technical review. The sole exception to this rule is when a
similar claim is filed citing the same time, place and type of damage
as one which has already received technical review. See also DA Pam 27-
162, paragraph 2-28.
(k) Motor vehicle damage claims arising from the use of non-
governmental vehicles. See also Sec. 536.60 (splitting property damage
and personal injury claims) and DA Pam 27-162, paragraphs 2-15k
(determining the correct statute), 2-61 (joint tortfeasors), and 2-62e
(indemnity or contribution).
(1) Government tortfeasors. A Soldier or U.S. government civilian
employee who negligently damages his or her personal property while
acting within the scope of employment is not a proper claimant for
damage to that property.
(2) Claims by lessors for damage to rental vehicles. Third-party
claims arising from the use of rental vehicles will be processed in the
same manner as NAFI commercially insured activities after exhaustion of
any other remedy under the Government Travel Card Program or the
Surface Deployment and Distribution Command Car Rental Agreement.
(3) Third-party damages arising from the use of privately owned
vehicles. Third-party tort claims arising within the United States from
a Soldier's use of a privately owned vehicle (POV) while allegedly
within the scope of employment must be forwarded to the Commander
USARCS for review and consultation before final action. The claim will
be investigated and any authorization for use ascertained including
payment for mileage. A copy of the Soldier's POV insurance policy will
be obtained prior to forwarding. If the DA is an additional insurer
under applicable state law, the claim will be forwarded to the
Soldier's liability carrier for payment. When the tort claim arises in
a foreign country, follow the provisions of Subpart J of this part.
(l) Claims arising from gratuitous use of DOD or Army vehicles,
equipment or facilities. (1) Before the commencement of any event that
involves the use of DOD or Army land, vehicles, equipment or Army
personnel for community activities, the Command involved should be
advised to first determine and weigh the risk to potential third-party
claimants against the benefits to the DOD or the Army. Where such risk
is excessive, try to obtain an agreement from the sponsoring civilian
organization holding the Army harmless. When feasible, third-party
liability insurance may be required from the sponsor and the United
States added to the policy as a third-party insured.
(2) When Army equipment and personnel are used for debris removal
relief pursuant to the Federal Disaster Relief Act, 42 U.S.C. 5173, the
state is required to assume responsibility for third-party claims. The
senior judge advocate for a task force engaged in such relief should
obtain an agreement requiring the state to hold the Army harmless and
establish a procedure for payment by the state. Claims will be
received, entered into the TSCA database, investigated and forwarded to
state authorities for action.
(m) Real estate claims. Claims for rent, damage, or other payments
involving the acquisition, use, possession or disposition of real
property or interests therein, are generally payable under AR 405-15.
These claims are handled by the Real Estate Claims Office in the
appropriate COE District or a special office created for a deployment.
Directorate of Real Estate, Office of the Chief of Engineers, has
supervisory authority. Claims for damage to real property and
incidental personal property, but not for rent (for example, claims
arising during a maneuver or deployment) may be payable under subparts
C or J of this part. However, priority should be given to the use of AR
405-15 as it is more flexible and expeditious. In contingency
operations and deployments, there is a large potential for overlap
between
[[Page 46276]]
contractual property damage claims and noncombat activity/maneuver
claims. Investigate carefully to ensure the claim is in the proper
channel (claims or real estate), that it is fairly settled, and that
the claimant does not receive a double payment. For additional
guidance, see subpart J of this part and United States Army Claims
Service Europe (USACSEUR) Real Estate/Office of the Judge Advocate
Standard Operating Procedures for Processing Claims Involving Real
Estate During Contingency Operations (August 20, 2002).
(n) Claims generated by civil works projects. Civil works projects
claims arising from tortious activities are defined by whether the
negligent or wrongful act or omission arising from a project or
activity is funded by a civil works appropriation. Civil works claims
are those noncontractual claims which arise from a negligent or
wrongful act or omission during the performance of a project or
activity funded by civil works appropriations as distinguished from a
project or activity funded by Army operation and maintenance funds.
Civil works claims are paid out of civil works appropriations to the
extent set forth in Sec. 536.71(f). A civil works claim can also arise
out of a noncombat activity, for example, an inverse condemnation claim
in which flooding exceeds the high water mark. Maritime claims under
subpart H of this part are civil works claims when they arise out of
the operation of a dam, locks or navigational aid.
Note to Sec. 536.34: See parallel discussion at DA Pam 27-162,
paragraph 2-1.
Sec. 536.35 Unique issues related to environmental claims.
Claims for property damage, personal injury, or death arising in
the United States based on contamination by toxic substances found in
the air or the ground must be reported by USARCS to the Environmental
Law Division of the Army Litigation Center and the Environmental Torts
Branch of DOJ. Such claims arising overseas must be reported to the
Command Claims Service with geographical jurisdiction over the claim
and USARCS. Claims for personal injury from contamination frequently
arise at an area that is the subject of claims for cleanup of the
contamination site. The cleanup claims involve other Army agencies, use
of separate funds, and prolonged investigation. Administrative
settlement is not usually feasible because settlement of property
damage claims must cover all damages, including personal injury.
Payment by Defense Environmental Rehabilitation Funds should be
considered initially and any such payment should be deducted from any
settlement under AR 27-20.
Sec. 536.36 Related remedies.
An ACO or a CPO routinely receives claims or inquiries about claims
that clearly are not cognizable under this part. It is the DA's policy
that every effort be made to discover another remedy and inform the
inquirer as to its nature. Claims personnel will familiarize themselves
with the remedies set forth in DA Pam 27-162, paragraph 2-17, to carry
out this policy. If no appropriate remedy can be discovered, forward
the file to the Commander USARCS, with recommendations.
Sec. 536.37 Importance of the claims investigation.
Prompt and thorough investigation will be conducted on all
potential and actual claims for and against the government. Evidence
developed during an investigation provides the basis for every
subsequent step in the administrative settlement of a claim or in the
pursuit of a lawsuit. Claims personnel must gather and record adverse
as well as favorable information. The CJA, claims attorney or unit
claims officer must preserve their legal and factual findings.
Sec. 536.38 Elements of the investigation.
(a) The investigation is conducted to ascertain the facts of an
incident. Which facts are relevant often depends on the law and
regulations applicable to the conduct of the parties involved but
generally the investigation should develop definitive answers to such
questions as ``When?'' ``Where?'' ``Who?'' ``What?'' and ``How?''.
Typically, the time, place, persons, and circumstances involved in an
incident may be established by a simple report, but its 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, particularly when there is a question as to
whether the claim was timely filed.
Sec. 536.39 Use of experts, consultants and appraisers.
(a) ACOs or CPOs will budget operation and maintenance (O&M) funds
for the costs of hiring property appraisers, accident
reconstructionists, expert consultants to furnish opinions, and medical
specialists to conduct independent medical examinations (IMEs). Other
expenses to be provided for from O&M funds include the purchase of
documents, such as medical records, and the hiring of mediators. See
Sec. 536.53(b). Where the cost exceeds $750 or local funds are
exhausted, a request for funding should be directed to the Commander
USARCS, with appropriate justification. The USARCS AAO must be notified
as soon as possible when an accident reconstruction is indicated.
(b) Where the claim arises from treatment at an Army MTF, the
MEDDAC commander should be requested to fund the cost of an independent
consultant's opinion or an IME.
(c) The use of outside consultants and appraisers should be limited
to claims in which liability or damages cannot be determined otherwise
and in which the use of such sources is economically feasible, for
instance, where property damage is high in amount and not determinable
by a government appraiser or where the extent of personal injury is
serious and a government IME is neither available nor acceptable to a
claimant. Prior to such an examination at an MTF, ensure that the
necessary specialists are available and a prompt written report may be
obtained.
(d) Either an IME or an expert opinion is procured by means of a
personal services contract under the Federal Acquisition Regulation
(FAR), part 37, 48 CFR 37.000 through 37.604, through the local
contracting office. The contract must be in effect prior to
commencement of the records review. Payment is authorized only upon
receipt of a written report responsive to the questions asked by the
CJA or claims attorney.
(e) Whenever a source other than claims personnel is used to assist
in the evaluation of a claim in which medical information protected by
HIPAA is involved, the source must sign an agreement designed to
protect the patient's privacy rights.
Sec. 536.40 Conducting the investigation.
(a) The methods and techniques for investigating specific
categories of claims are set forth in DA Pam 27-162, paragraphs 2-25
through 2-34. The investigation of medical malpractice claims should be
conducted by a CJA or claims attorney, using a medical claims
investigator.
(b) A properly filed claim must contain enough information to
permit investigation. For example, if the claim does not specify the
date, location or
[[Page 46277]]
details of every incident complained of, the claimant or legal
representative should be required to furnish the information.
(c) Request the claimant or legal representative to specify a
theory of liability. However, the investigation should not be limited
to the theories specified, particularly where the claimant is
unrepresented. All logical theories should be investigated.
Sec. 536.41 Determination of liability--generally.
(a) Under the FTCA, the United States is liable in the same manner
and to the same extent as a private individual under like circumstances
in accordance with the law of the place where the act or omission
giving rise to the tort occurred (28 U.S.C. 2673 and 2674). This means
that liability must rest on the existence of a tort cognizable under
state law, hereinafter referred to as a state tort. A finding of state
tort liability requires the litigating attorney to prove the elements
of duty, breach of duty, causation, and damages as interpreted by
federal case law.
(b) The foregoing principles and requirements will be followed in
regard to tort claims against the United States under other subparts,
with certain exceptions noted within the individual subparts or
particular tort statutes.
(c) Interpretation will be made in accordance with FTCA case law
and also maritime case law where applicable. Additionally, a noncombat
activity can furnish the basis for a claim under subparts C, F, and J
of this part. Noncombat activities include claims arising out of civil
works, such as inverse condemnation.
(d) Federal, not state or local, law applies to a determination as
to who is a federal employee or a member of the armed forces. Under all
subparts, the designation ``federal employee'' excludes a contractor of
the United States. See 28 U.S.C. 2671. See however, Sec. 536.23(b)
(4)(ii) concerning personal services contractors. For employment
identification purposes apply FTCA case law in making a determination.
(e) Federal, not state or local, law applies to an interpretation
of the SOL under all subparts. Minority or incompetence does not toll
the SOL. Case law developed under the FTCA will be used in other
subparts in interpreting SOL questions.
(f) Under the FTCA state or local law is used to determine scope of
employment and under other subparts for guidance.
Sec. 536.42 Constitutional torts.
A claim for violation of the U.S. Constitution does not constitute
a state tort and is not cognizable under any subpart. A constitutional
claim will be scrutinized in order to determine whether it is totally
or partially payable as a state tort. For example, a Fifth Amendment
taking may be payable in an altered form as a real estate claim. For
further discussion see DA Pam 27-162, paragraph 2-36.
Sec. 536.43 Incident to service.
(a) A member of the armed forces' claim for personal injury or
wrongful death arising incident to service is not payable under any
subpart except to the extent permitted by the receiving State under
Sec. Sec. 536.107 through 536.113 (Claims arising overseas); however,
a claim by a member of the United States Armed Forces for property loss
or damage may be payable under AR 27-20, chapter 11 or, if not, under
subparts C, E, F, or G of this part. Derivative claims and claims for
indemnity are also excluded.
(b) Claims for personal injury or wrongful death by members of a
foreign military force participating in a joint military exercise or
operation arising incident to service are not payable under any
subpart. Claims for property loss or damage, but not subrogated claims,
may be payable under subpart C of this part. Derivative claims and
claims for indemnity or contribution are not payable under any subpart.
Note to Sec. 536.43: For further discussion see DA Pam 27-162,
paragraph 2-37.
Sec. 536.44 FECA and LSHWCA claims exclusions.
A federal or NAFI employee's personal injury or wrongful death
claim payable under the Federal Employees Compensation Act (FECA) or
the Longshore and Harbor Workers Compensation Act (LSHWCA) is not
payable under any subpart. Derivative claims are also excluded but a
claim for indemnity may be payable under certain circumstances. A
federal or NAFI employee's claim for an incident-to-service property
loss or damage may be payable under AR 27-20, chapter 11 or, if not,
under subparts C, D, F, G, H or J of this part. For further discussion
see DA Pam 27-162, paragraph 2-38.
Sec. 536.45 Statutory exceptions.
This topic is more fully discussed in DA Pam 27-162, paragraph 2-
39. The exclusions listed below are found at 28 U.S.C. 2680 and apply
to subparts C, D, F, and H and Sec. Sec. 536.107 through 536.113
(Claims arising in the United States) of subpart G, except as noted
therein, and not to subparts E, J or Sec. Sec. 536.107-536.113 (Claims
arising overseas) of subpart G of this part. A claim is not payable if
it:
(a) Is based upon an act or omission of an employee of the U.S.
government, exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation is valid. This
exclusion does not apply to a noncombat activity claim.
(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 is abused. This exclusion does not apply to a noncombat
activity claim.
(c) Arises out of the loss, miscarriage, or negligent transmission
of letters or postal matters. This exclusion is not applicable to
registered or certified mail claims under subpart C of this part. See
Sec. 536.34(i).
(d) Arises in respect of 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. See 28 U.S.C. 2680(c).
(e) Is cognizable under the SIAA (46 U.S.C. app. 741-752), the PVA
(46 U.S.C. app. 781-790), or the AEA (46 U.S.C. app. 740). This
exclusion does not apply to subparts C, F, H or J of this part.
(f) Arises out of an act or omission of any federal employee in
administering the provisions of the Trading with the Enemy Act, 50
U.S.C. app. 1-44.
(g) Is for damage caused by the imposition or establishment of a
quarantine by the United States.
(h) Arises out of assault, battery, false imprisonment, false
arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights, except
for acts or omissions of investigation of law enforcement officers of
the U.S. government with regard to assault, battery, false
imprisonment, false arrest, abuse of process or malicious prosecution.
This exclusion also does not apply to a health care provider as defined
in 10 U.S.C. 1089 and Sec. 536.80 of this part, under the conditions
listed therein.
(i) Arises from the fiscal operations of the U.S. Department of the
Treasury or from the regulation of the monetary system.
(j) Arises out of the combatant activities of U.S. military or
naval forces, or the Coast Guard during time of war.
[[Page 46278]]
(k) Arises in a foreign country. This exclusion does not apply to
subparts C, E, F, H, J or Sec. Sec. 536.114 through 536.116 (Claims
arising overseas) of subpart G of this part.
(l) Arises from the activities of the Tennessee Valley Authority,
28 U.S.C. 2680(l).
(m) Arises from the activities of the Panama Canal Commission, 28
U.S.C. 2680(m).
(n) Arises from the activities of a federal land bank, a federal
intermediate credit bank, or a bank for cooperatives, 28 U.S.C.
2680(n).
Note to Sec. 536.45: This topic is more fully discussed in DA
Pam 27-162, paragraph 2-39.
Sec. 536.46 Other exclusions.
(a) Statutory employer. A claim is not payable under any subpart if
it is for personal injury or death of any contract employee for whom
benefits are provided under any workers' compensation law, if the
provisions of the workers' compensation insurance are retrospective and
charge an allowable expense to a cost-type contract, or if precluded by
state law. See Federal Tort Claims Handbook (FTCH), section II, D7
(posted on the Web at https://www.jagcnet.army.mil/laawsxxi/cds.nsf.
Select the link ``Claims'' under ``JAG Publications.'') The statutory
employer exclusion also applies to claims that may be covered by the
Defense Bases Act, 42 U.S.C. 1651-1654.
(b) Flood exclusion. Within the United States a claim is not
payable if it arises from damage caused by flood or flood waters
associated with the construction or operation of a COE flood control
project, 33 U.S.C. 702(c). See DA Pam 27-162, paragraph 2-40.
(c) ARNG property. A claim is not payable under any subpart if it
is for damage to, or loss of, 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. See DA Pam 27-162, paragraph 2-
41.
(d) Federal Disaster Relief Act. Within the United States a claim
is not payable if it is for damage to, or loss of, property or for
personal injury or death arising out of debris removal by a federal
agency or employee in carrying out the provisions of the Federal
Disaster Relief Act, 42 U.S.C. 5173. See DA Pam 27-162, paragraph 2-42.
(e) Non-justiciability doctrine. A claim is not payable under any
subpart if it arises from activities that present a non-justiciable
political question. See DA Pam 27-162, paragraph 2-43.
(f) National Vaccine Act. (42 U.S.C. 300aa-l through 300aa-7). A
claim is not payable under any subpart if it arises from the
administration of a vaccine unless the conditions listed in the
National Vaccine Injury Compensation Program (42 U.S.C. 300aa-9 through
300aa-19) have been met. See DA Pam 27-162, paragraph 2-17c(6)(a).
(g) Defense Mapping Agency. A claim is not payable under any
subpart if it arises from inaccurate charting by the Defense Mapping
Agency, 10 U.S.C. 456. See FTCH section II, B4s (Web address at
paragraph (a) of this section).
(h) Quiet Title Act. Within the U.S., a claim is not payable if it
falls under the Quiet Title Act 28 U.S.C. 2409a.
(i) Defense Bases Act. A claim arising outside the United States is
not payable if it is covered by the Defense Bases Act, 42 U.S.C. 1651-
1654.
Note to Sec. 536.46: See parallel discussion at DA Pam 27-162,
paragraphs 2-40 through 2-43.
Sec. 536.47 Statute of limitations.
To be payable, a claim against the United States under any subpart,
except Sec. Sec. 536.114 through 536.116 (Claims arising overseas),
must be filed no later than two years from the date of accrual as
determined by federal law. The accrual date is the date on which the
claimant is aware of the injury and its cause. The claimant is not
required to know of the negligent or wrongful nature of the act or
omission giving rise to the claim. The date of filing is the date of
receipt by the appropriate federal agency, not the date of mailing. See
also Sec. 536.26(a) and parallel discussion at DA Pam 27-162,
paragraph 2-44.
Sec. 536.48 Federal employee requirement.
To be payable, a claim under any subpart except subpart K of this
part, Sec. Sec. 536.153 through 536.157 (Claims involving tortfeasors
other than nonappropriated fund employees), must be based on the acts
or omissions of a member of the armed forces, a member of a foreign
military force within the United States with which the United States
has a reciprocal claims agreement, or a federal civilian employee. This
does not include a contractor of the United States. Apply federal case
law for interpretation. See parallel discussion at DA Pam 27-162,
paragraph 2-46.
Sec. 536.49 Scope of employment requirement.
To be payable, a claim must be based on acts or omissions of a
member of the armed forces, a member of a foreign military force within
the United States with which the United States has a reciprocal claims
agreement, or a federal employee acting within the scope of employment,
except for subparts E, J, or subpart K of this part, Sec. Sec. 536.153
through 536.157 (Claims involving tortfeasors other than
nonappropriated fund employees). A claim arising from noncombat
activities must be based on the armed service's official activities.
Excluded are claims based on vicarious liability or the holder theory
in which the owner of the vehicle is responsible for any injury or
damage regardless of who the operator was. See parallel discussion at
DA Pam 27-162, paragraph 2-46.
Sec. 536.50 Determination of damages--applicable law.
(a) The Federal Tort Claims Act. The whole law of the place where
the incident giving rise to the claim occurred, including choice of law
rules, is applicable. Therefore, the law of the place of injury or
death does not necessarily apply. Where there is a conflict between
local law and an express provision of the FTCA, the latter governs.
(b) The Military Claims Act or National Guard Claims Act. See
subparts C and F of this part. The law set forth in Sec. 536.80
applies only to claims accruing on or after September 1, 1995. The law
of the place of the incident giving rise to the claim will apply to
claims arising in the United States, its commonwealths, territories and
possessions prior to September 1, 1995. The general principles of U.S.
tort law will apply to property damage or loss claims arising outside
the United States prior to September 1, 1995. Established principles of
general maritime law will apply to injury or death claims arising
outside the United States prior to September 1, 1995. See Moragne v.
States Marine Lines, Inc., 398 U.S. 375 (1970) and federal case law.
Where general maritime law provides no guidance, the general principles
of U.S. tort law will apply.
(c) The Foreign Claims Act. See subpart J of this part. The law of
the place of occurrence applies to the resolution of claims. However,
the law of damages set forth in Sec. 536.139 will serve as a guide.
(d) The Army Maritime Claims Settlement Act. Maritime law applies.
(e) Damages not payable. Under all subparts, property loss or
damage refers
[[Page 46279]]
to actual tangible property. Accordingly, consequential damages,
including, but not limited to bail, interest (prejudgment or
otherwise), or court costs are not payable. Costs of preparing, filing,
and pursuing a claim, including expert witness fees, are not payable.
The payment of punitive damages, that is, damages in addition to
general and special damages that are otherwise payable, is prohibited.
See DA Pam 27-162, paragraphs 2-56 and 3-4b.
(f) Source of attorney's fees. Attorney's fees are taken from the
settlement amount and not added thereto. They may not exceed 20 percent
of the settlement amount under any subpart.
Note to Sec. 536.50: For further discussion see DA Pam27-162,
paragraph 2-51.
Sec. 536.51 Collateral source rule.
Where permitted by applicable state or maritime law, damages
recovered from collateral sources are payable under subparts D and H,
but not under subparts C, E, F, or J of this part. For further
discussion see DA Pam 27-162, paragraph 2-57.
Sec. 536.52 Subrogation.
Subrogation is the substitution of one person in place of another
with regard to a claim, demand or right. It should not be confused with
a lien, which is an obligation of the claimant. Applicable state law
should be researched to determine the distinction between subrogation
and a lien. Subrogation claims are payable under subparts D and H, but
not under subparts C, E, F or J of this part. For further discussion
see DA Pam 27-162, paragraph 2-58.
Sec. 536.53 Evaluation of claims--general rules and guidelines.
(a) Before claims personnel evaluate a claim:
(1) A claimant or claimant's legal representative will be furnished
the opportunity to substantiate the claim by providing essential
documentary evidence according to the claim's nature including, but not
instead of, the following: medical records and reports, witness
statements, itemized bills and paid receipts, estimates, federal tax
returns, W-2 forms or similar proof of loss of earnings, photographs,
and reports of appraisals or investigation. If necessary, request
permission, through the legal representative, to interview the
claimant, the claimant's family, proposed witnesses and treating health
care providers (HCPs). In a professional negligence claim, the claimant
will submit an expert opinion when requested. State law concerning the
requirement for an affidavit of merit should be cited.
(2) When the claimant or the legal representative fails to respond
in a timely manner to informal demands for documentary evidence,
interviews, or an independent medical examination (IME), make a written
request. Such written request provides notice to the claimant that
failure to provide substantiating evidence will result in an evaluation
of the claim based only on information currently in the file. When,
despite the government's request, there is insufficient information in
the file to permit evaluation, the claim will be denied for failure to
document it. Failure to submit to an IME or sign an authorization to
use medical information protected by HIPAA, for review or evaluation by
a source other than claims personnel, are both grounds for denial for
failure to document, provided such evaluation is essential to the
determination of liability or damages. State a time limit, for example,
30 or 60 days, to furnish the substantiation or expert opinion required
in a medical malpractice claim.
(3) If, in exchange for complying with the government's request for
the foregoing information, the claimant or the legal representative
requests similar information from the file, the claimant may be
provided such information and documentation as is releasable under the
Federal Rules of Civil Procedure (FRCP). Additionally, work product may
be released if such release will help settle the claim. See Sec.
536.18.
(b) An evaluation should be viewed from the claimant's perspective.
In other words, before denying a claim, first determine whether there
is any reasonable basis for compromise. Certain jurisdictional issues
and statutory bases may not be open for compromise. The incident to
service and FECA exclusions are rarely subject to compromise, whereas
the SOL is more subject to compromise. Factual and legal disputes are
compromisable, frequently providing a basis for limiting damages, not
necessarily grounds for denial. Where a precise issue of dispute is
identified and is otherwise unresolvable, mediation by a disinterested
qualified person, such as a federal judge, or foreign equivalent for
claims arising under the FCA, should be obtained upon agreement with
the claimant or the claimant's legal representative. Contributory
negligence has given way to comparative negligence in most United
States jurisdictions. In most foreign countries, comparative negligence
is the rule of law.
Note to Sec. 536.53: For further discussion see DA Pam 27-162,
paragraph 2-59.
Sec. 536.54 Joint tortfeasors.
When joint tortfeasors are liable, it is DA policy to pay only the
fair share of a claim attributable to the fault of the United States
rather than pay the claim in full and then bring suit against the joint
tortfeasor for contribution. If payment from a joint tortfeasor is not
forthcoming after the CJA's demand, the United States should settle for
its fair share, provided the claimant is willing to hold the United
States harmless. Where a joint tortfeasor's liability greatly outweighs
that of the United States, the claim should be referred to the joint
tortfeasor for action.
Sec. 536.55 Structured settlements.
(a) The use of future periodic payments, including reversionary
medical trusts, is encouraged to ensure that the injured party is
adequately compensated and able to meet future needs.
(1) It is necessary to ensure adequate care and compensation for a
minor or other incompetent claimant or unemployed survivor over a
period of years.
(2) A medical trust is necessary to ensure the long-term
availability of funds for anticipated future medical care, the cost of
which is difficult to predict.
(3) The injured party's life expectancy cannot be reasonably
determined or is likely to be shortened.
(b) Under subpart D of this part, structured settlements cannot be
required but are encouraged in situations listed above or where state
law permits them. In the case of a minor, every effort should be made
to insure that the minor, and not the parents, receives the benefit of
the settlement. Annuity payments at the age of majority should be
considered. If rejected, a blocked bank account may be used.
(c) It is the policy of the Department of Justice never to discuss
the tax-free nature of a structured settlement.
Note to Sec. 536.55: For further discussion, see DA Pam 27-162,
paragraph 2-63.
Sec. 536.56 Negotiations--purpose and extent.
It is DA policy to settle meritorious claims promptly and fairly
through direct negotiation at the lowest possible level. The Army's
negotiator should not admit liability as such is not necessary.
However, the settlement should reflect diminished value where
contributory negligence or other value-diminishing
[[Page 46280]]
factors exist. The negotiator should be thoroughly familiar with all
aspects of the case, including the claimant's background, the key
witnesses, the anticipated testimony and the appearance of the scene.
There is no substitute for the claims negotiator's personal study of,
and participation in, the case before settlement negotiations begin. If
settlement is not possible due to the divergence in the offers, refine
the issues as much as possible in order to expedite any subsequent
suit. Mediation should be used if the divergence is due to an issue of
law affecting either liability or damages. For further discussion see
DA Pam 27-162, paragraph 2-64.
Sec. 536.57 Who should negotiate.
An AAO or, when delegated additional authority, an ACO or a CPO,
has authority to settle claims in an amount exceeding the monetary
authority delegated by regulation. It is DA policy to delegate USARCS
authority, on a case-by-case basis, to an ACO or a CPO possessing the
appropriate ability and experience. Only an attorney should negotiate
with a claimant's attorney. Negotiations with unrepresented claimants
may be conducted by a non-attorney, under the supervision of an
attorney. For further discussion see DA Pam 27-162, paragraph 2-65.
Sec. 536.58 Settlement negotiations with unrepresented claimants.
All aspects of the applicable law and procedure, except the amount
to be claimed, should be explained to both potential and actual
claimants. The negotiator will ensure that the claimant is aware of
whether the negotiator is an attorney or a non-attorney, and that the
negotiator represents the United States. As to claims within USARCS'
monetary authority, the chronology and details of negotiations should
be memorialized with a written record furnished to the claimant. The
claimant should understand that it is not necessary to hire an
attorney, but when an attorney is needed, the negotiator should
recommend hiring one. In a claim where liability is not an issue, the
claimant should be informed that if an attorney is retained, the
claimant should attempt to negotiate an hourly fee for determination of
damages only. For further discussion see DA Pam 27-162, paragraph 2-68.
Sec. 536.59 Settlement or approval authority.
``Settlement authority'' is a statutory term (10 U.S.C. 2735)
meaning that officer authorized to approve, deny or compromise a claim,
or make final action. ``Approval authority'' means the officer
empowered to settle, pay or compromise a claim in full or in part,
provided the claimant agrees. ``Final action authority'' means the
officer empowered to deny or make a final offer on a claim. Determining
the proper officer empowered to approve or make final action on a claim
depends on the claims statute involved and any limitations that apply
under that statute. DA Pam 27-162, paragraph 2-69, outlines how various
authority is delegated among offices.
Sec. 536.60 Splitting property damage and personal injury claims.
Normally, a claim will include all damages that accrue by reason of
the incident. Where a claimant has a claim for property damage and
personal injury arising from the same incident, the property damage
claim may be paid, under certain circumstances, prior to the filing of
the personal injury claim. The personal injury claim may be filed later
provided it is filed within the applicable statute of limitations. When
both property damage and personal injury arise from the same incident,
the property damage claim may be paid to either the claimant or, under
subparts D or H of this part, the insurer and the same claimant may
receive a subsequent payment for personal injury. Only under subparts D
or H of this part may the insurer receive subsequent payment for
subrogated medical bills and lost earnings when the personal injury
claim is settled. The primary purpose of settling an injured claimant's
property damage claim before settling the personal injury claim is to
pay the claimant for vehicle damage expeditiously and avoid costs
associated with delay such as loss of use, loss of business, or storage
charges. The Commander USARCS' approval must be obtained whenever the
estimated value of any one claim exceeds $25,000, or the value of all
claims, actual or potential, arising from the incident exceeds $50,000;
however, if the claim arises under the FTCA or AMCSA, only if the
amount claimed exceeds $50,000, or $100,000 per incident.
Sec. 536.61 Advance payments.
(a) This section implements 10 U.S.C. 2736 (Act of September 8,
1961 (75 Stat. 488)) as amended by Public Law 90-521 (82 Stat. 874);
Public Law 98-564 (90 Stat. 2919); and Public Law 100-465 (102 Stat.
2005)). No new liability is created by 10 U.S.C. 2736, which merely
permits partial advance payments, only under subparts C, F or J of this
part, on claims not yet filed. See AR 27-20, paragraph 11-18 for
information on emergency partial payments in personnel claims, which
are not governed by 10 U.S.C. 2736.
(b) The Judge Advocate General (TJAG) and the Assistant Judge
Advocate General (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. Sec. 536.78(b)(4) and
(b)(5) and 536.101, 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.
(c) Under subpart J of this part, three-member foreign claims
commissions may make advance payments under the FCA in amounts not
exceeding $10,000, subject to advance coordination with USARCS if the
estimated total value of the claim exceeds their monetary authority.
(d) An advance payment, not exceeding $100,000, is authorized in
the limited category of claims or potential claims considered
meritorious under subparts C, F or J of this part, that result in
immediate hardship. An advance payment is authorized only under the
following circumstances:
(1) The claim, or potential claim, must be determined to be
cognizable and meritorious under the provisions of subparts C, F or J
of this part.
(2) An immediate need for food, clothing, shelter, medical or
burial expenses, or other necessities exists.
(3) The payee, so far as can be determined, would be a proper
claimant, including an incapacitated claimant's spouse or next-of-kin.
(4) The total damage sustained must exceed the amount of the
advance payment.
(5) A properly executed advance payment acceptance agreement has
been obtained. This acceptance agreement must state that it does not
constitute an admission of liability by the United States and that the
amount paid shall be deducted from any subsequent award.
(e) There is no statutory authority for making advance payments for
claims payable under subparts D or H of this part.
Note to Sec. 536.61: For further discussion see DA Pam 27-162,
paragraph 2-71.
Sec. 536.62 Action memorandums.
(a) When required. (1) All claims will be acted on prior to being
closed except for those that are transferred. For claims on which suit
is filed before final action,
[[Page 46281]]
see Sec. 536.66. A settlement authority may deny or pay in full or in
part any claim in a stated amount within his or her delegated
authority. An approval authority may pay in full or in part, but may
not deny, a claim in a stated amount within his or her delegated
authority. If any one claim arising out of the same incident exceeds a
settlement or approval authority's monetary jurisdiction, all claims
from that incident will be forwarded to the authority having
jurisdiction.
(2) In any claim which must be supported by an expert opinion as to
duty, negligence, causation or damages, an expert opinion must be
submitted upon request. All opinions must meet the standards set forth
in Federal Rule of Evidence 702.
(3) An action memorandum is required for all final actions
regardless of whether payment is made electronically. The memorandum
will contain a sufficient rendition of the facts, law or damages to
justify the action being taken. (A model action is posted on the USARCS
Web site; for the address see Sec. 536.2(a).)
(b) Memorandum of Opinion. Upon completion of the investigation,
the ACO or CPO will prepare a memorandum of opinion in the format
prescribed at DA Pam 27-162, when a claim is forwarded to USARCS for
action. This requirement can be waived by the USARCS AAO.
(c) Claim brought by a claims authority or superior. A claim filed
by an approval or settlement authority or his or her superior officer
in the chain of command or a family member of either will be
investigated and forwarded for final action, without recommendation, to
the next higher settlement authority (in an overseas area, this
includes a command claims service) or to USARCS.
Note to Sec. 536.62: For further discussion see DA Pam 27-162,
paragraph 2-72.
Sec. 536.63 Settlement agreements.
(a) When required. (1) A claimant's acceptance of an award
constitutes full and final settlement and release of any and all claims
against the United States and its employees, except as to payments made
under Sec. Sec. 536.60 and 536.61. A settlement agreement is required
prior to payment on all tort claims, whether the claim is paid in full
or in part.
(2) DA Form 1666 (Claims Settlement Agreement) may be used for
payment of COE claims of $2500 or less or all Army Central Insurance
Fund and Army and Air Force Exchange Service claims.
(3) DA Form 7500 (Tort Claim Payment Report) will be used for all
payments from the Defense Finance and Accounting Service (DFAS), for
example, FTCA claims of $2500 or less, FCA and MCA claims of $100,000
or less and all maritime claims regardless of amount.
(4) Financial Management Service (FMS) Forms 194, 196 and 197 will
be used for all payments from the Judgment Fund, for example, FTCA
claims exceeding $2,500, MCA and FCA claims exceeding $100,000.
(5) An alternative settlement agreement will be used when the
claimant is represented by an attorney, or when any of the above
settlement agreement forms are legally insufficient (such as when
multiple interests are present, a hold harmless agreement is reached,
or there is a structured settlement). For further discussion, see DA
Pam 27-162, paragraph 2-73c.
(b) Unconditional settlement. The settlement agreement must be
unconditional. The settlement agreement represents a meeting of the
minds. Any changes to the agreement must be agreed upon by all parties.
The return of a proffered settlement agreement with changes written
thereon or on an accompanying document represents, in effect, a
counteroffer and must be resolved. Even if the claimant signs the
agreement and objects to its terms, either in writing or verbally, the
settlement is defective and the objection must be resolved. Otherwise a
final offer should be made.
(c) Court approval. (1) When required. Court approval is required
in a wrongful death claim, or where the claimant is a minor or
incompetent. The claimant is responsible to obtain court approval in a
jurisdiction that is locus of the act or omission giving rise to the
claim or in which the claimant resides. The court must be a state or
local court, including a probate court. If the claimant can show that
court approval is not required under the law of the jurisdiction where
the incident occurred or where the claimant resides, the citation of
the statute will be provided and accompany the payment documents.
(2) Attorney representation. If the claimant is a minor or
incompetent, the claimant must be represented by a lawyer. If not
already represented, the claimant should be informed that the
requirement is mandatory unless state or local law expressly authorizes
the parents or a person in loco parentis to settle the claim.
(3) Costs. The cost of obtaining court approval will be factored
into the amount of the settlement; however, the amount of the costs and
other costs will not be written into the settlement, only the 20%
limitation on attorney fees will be included.
(4) Claims involving an estate or personal representative of an
estate. On claims presented on behalf of a decedent's estate, the law
of the state having jurisdiction should be reviewed to determine who
may bring a claim on behalf of the estate, if court appointment of an
estate representative is required, and if court approval of the
settlement is required.
(d) Signature requirements. (1) Except as noted below, all
settlement agreements will be signed individually by each claimant. A
limited power of attorney signed by the claimant specifically stating
the amount being accepted and authorizing an attorney at law or in fact
to sign is acceptable when the claimant is unavailable to sign. The
signatures of the administrator or executor of the estate, appointed by
a court of competent jurisdiction or authorized by local law, are
required. The signatures of all adult beneficiaries, acknowledging the
settlement, should be obtained unless permission is given by Commander
USARCS. Court approval must be obtained where required by state law. If
not required by state law, the citation of the state statute will
accompany the payment document. Additionally, all adult heirs will sign
as acknowledging the settlement. In lieu thereof, where the adult heirs
are not available, the estate representative will acknowledge that all
heirs have been informed of the settlement.
(2) Generally, only a court-appointed guardian of a minor's estate,
or a person performing a similar function under court supervision, may
execute a binding settlement agreement on a minor's claim. In the
United States, the law of the state where the minor resides or is
domiciled will determine the age of majority and the nature and type of
court approval that is needed, if any. The age of majority is
determined by the age at the time of settlement, not the date of
filing.
(3) For claims arising in foreign countries where the amount agreed
upon does not exceed $2,500, the requirement to obtain a guardian may
be eliminated. For settlements over $2,500, whether or not the claim
arose in the United States, refer to applicable local law, including
the law of the foreign country where the minor resides.
(4) In claims where the claimant is an incompetent, and for whom a
guardian has been appointed by a court of competent jurisdiction, the
signature of the guardian must be obtained. In cases in which
competence of the claimant appears doubtful, a written statement by
[[Page 46282]]
the plaintiff's attorney and a member of the immediate family should be
obtained.
(5) Settlement agreements involving subrogated claims must be
executed by a person authorized by the corporation or company to act in
its behalf and accompanied by a document signed by a person authorized
by the corporation or company to delegate execution authority.
(6) If it is believed that the foregoing requirements are
materially impeding settlement of the claim, bring the matter to the
attention of the Commander USARCS for appropriate resolution.
(e) Attorneys' fees and costs. (1) Attorneys' fees for all subparts
fall under the American Rule and are payable only out of the up front
cash in any settlement. Attorneys' fees will be stated separately in
the settlement agreement as a sum not to exceed 20% of the award.
(2) Costs are a matter to be determined solely between the attorney
and the claimant and will not be set forth or otherwise enumerated in
the settlement agreement.
(f) Claims involving workers' compensation carriers. The settlement
of a claim involving a claimant who has elected to receive workers'
compensation benefits under local law may require the consent of the
workers' compensation insurance carrier, and in certain jurisdictions,
the state agency that has authority over workers' compensation awards.
Accordingly, claims approval and settlement authorities should be aware
of local requirements.
(g) Claims involving multiple interests. Where two or more parties
have an interest in the claim, obtain signatures on the settlement
agreement from all parties. Examples are where both the subrogee and
subrogor file a single claim for property damage, where both landlord
and tenant file a claim for damage to real property, or when a POV is
leased, both the lessor or lessee.
(h) Claims involving structured settlements. All settlement
agreements involving structured settlements will be prepared by the
Tort Claims Division, USARCS, and approved by the Chief or Deputy
Chief, Tort Claims Division.
Sec. 536.64 Final offers.
(a) When claims personnel believe that a claim should be
compromised, and after every reasonable effort has been made to settle
at less than the amount claimed, a settlement authority will make a
written final offer within his or her monetary jurisdiction or forward
the claim to the authority having sufficient monetary jurisdiction,
recommending a final offer under the applicable statute. The final
offer notice will contain sufficient detail to outline each element of
damages as well as discuss contributory negligence, the SOL or other
reasons justifying a compromise offer. The offer letter should include
language indicating that if the offer is not accepted within a named
time period, for example, 30 or 60 days, the offer is withdrawn and the
claim is denied.
(b) A final offer under subpart D of this part will notify the
claimant of the right to sue, not later than six months from the
notice's date of mailing, and of the right to request reconsideration.
The procedures for processing a request for reconsideration are set
forth in Sec. 536.89.
(c) Under subparts C or F of this part, the notice will contain an
appeal paragraph. A similar procedure will be followed in subparts E
and H of this part. Subpart J of this part sets forth its own
procedures for FCA final offers. The procedures for processing an
appeal are set forth in Sec. 536.79 of this part. The letter must
inform claimants of the following:
(1) They must accept the offer within 60 days or appeal. The appeal
should state a counteroffer.
(2) The identity of the official who will act on the appeal, and
the requirement 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 the notice of appeal
must fully set forth the grounds for appeal or state that it is based
on the record as it exists at the time of denial or final offer.
(4) The appeal must be postmarked not later than 60 days after the
date of mailing of the final notice of action. If the last day of the
appeal period falls on a Saturday, Sunday, or legal holiday, as
specified in Rule 6a of the Federal Rules of Civil Procedure, the
following day will be considered the final day of the appeal period.
(d) Where a claim for the same injury falls under both subparts C
and D of this part (the MCA and the FTCA), and the denial or final
offer applies equally to each such claim, the letter of notification
must advise the claimant that any suit brought on any portion of the
claim filed under the FTCA must be brought not later than six months
from the date of mailing of the notice of final offer and any appeal
under subpart C of this part must be made as stated in paragraph (c) of
this section. Further, the claimant must be advised that if suit is
brought, action on any appeal under subpart C of this part will be held
in abeyance pending final determination of such suit.
(e) Upon request, the settlement authority may extend the six-month
reconsideration or 60-day appeal period provided good cause is shown.
The claimant will be notified as to whether the request is granted
under the FTCA and that the request precludes the filing of suit under
the FTCA for 6 months. Only one reconsideration is authorized.
Accordingly, that claimant should be informed of the need to make all
submissions timely.
Note to Sec. 536.64: For further discussion see DA Pam 27-162,
paragraph 2-74.
Sec. 536.65 Denial notice.
(a) Where there is no reasonable basis for compromise, a settlement
authority will deny a claim within his or her monetary jurisdiction or
forward the claim recommending denial to the settlement authority that
has jurisdiction. The denial notice will contain instructions on the
right to sue or request reconsideration. The notice will state the
basis for denial. No admission of liability will be made. A notice to
an unrepresented claimant should detail the basis for denial in lay
language sufficient to permit an informed decision as to whether to
request appeal or reconsideration. In the interest of deterring
reconsideration, appeal or suit, a denial notice may be releasable
under the Federal Rules of Civil Procedure or by the work product
documents doctrine.
(b) Regardless of the claim's nature or the statute under which it
may be considered, letters denying claims 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 was conducted),
must state that denial on such grounds is not to be construed as an
opinion on the merits of the claim or an admission of liability. In
medical malpractice claims, the denial should state that the file is
being referred to U.S. Army Medical Command for review. If sufficient
factual information exists to make a tentative ruling on the merits of
the claim, liability may be expressly denied.
Note to Sec. 536.65: See Sec. 536.53, on denying a claim for
failure to substantiate. In addition, the procedures and rules in DA
Pam 27-162, paragraph 2-69, settlement and approval authority, apply
equally to the denial of claims. See also DA Pam 27-162, paragraph
2-75.
Sec. 536.66 The ``Parker'' denial.
(a) When suit is filed before final action is taken on a subpart D
of this part claim, a denial letter will be issued only upon request of
DOJ or the trial
[[Page 46283]]
attorney. If suit is filed prematurely or in error, the claimant may be
requested to withdraw the suit without prejudice. Such a request must
be coordinated with the trial attorney.
(b) Claimants who have filed companion claims should be notified
that, due to suit being filed, no action can be taken pending the
outcome of suit and they may file suit if they wish.
Note to Sec. 536.66: For further discussion see DA Pam 27-162,
paragraph 2-76.
Sec. 536.67 Mailing procedures.
Thirty or sixty day letters seeking information from claimants,
final offers and denial notices are time-sensitive as they require a
claimant to take additional action within certain time limits.
Accordingly, follow procedures to ensure that the date of mailing and
receipt of a request for reconsideration are documented. Use certified
mail with return receipt requested (or registered mail, if being sent
to a foreign country other than by the military postal system) to mail
such notices. Upon receipt, an appeal or request for reconsideration
will be date-time stamped, logged in, and acknowledged as set forth in
Sec. 536.68.
Note to Sec. 536.67: See also AR 27-20, paragraph 13-5, and DA
Pam 27-162, paragraph 2-77.
Sec. 536.68 Appeal or reconsideration.
(a) An appeal or a request for reconsideration will be acknowledged
in writing. A request for reconsideration under subpart D of this part
invokes the six-month period during which suit cannot be filed, 28 CFR
14.9(b). The acknowledgment letter will underscore this restriction.
(b) Where the contents of the appeal or request for reconsideration
indicate, additional investigation will be conducted and the original
action changed if warranted. Except for subpart J of this part, which
sets forth separate rules for FCCs, if the relief requested is not
warranted the settlement authority will forward the claim to a higher
settlement authority with a claims memorandum of opinion (see Sec.
536.62) stating the reasons why the request is invalid.
Note to Sec. 536.68: See also DA Pam 27-162, paragraph 2-78.
Sec. 536.69 Retention of file.
After final action has been taken, the settlement authority will
retain the file until at least one month after either the period of
filing suit or the appeal has expired and until all data has been
entered into the database. A paid claim file will be retained until
final action has been taken on all other claims arising out of the same
incident. If any single claim arising out of the same incident must be
forwarded to higher authority for final action, all claims files for
that incident will be forwarded at the same time. For further
discussion see DA Pam 27-162, paragraph 2-79.
Sec. 536.70 Preparation and forwarding of payment vouchers.
(a) An unrepresented claimant will be listed as the sole payee.
Joint claimants will not be listed since settlement agreements must
specify the amount payable to each claimant individually and each must
be issued a separate check.
(b) When a claimant is represented by an attorney, only one payment
voucher will be issued with the claimant and the attorney as joint
payees. The payment will be sent to the office of the claimant's
attorney. The attorney of record, either an individual or firm
designated by the claimant, will be the co-payee. If claimant has been
represented by other attorneys in the same claim, such attorneys will
not be listed as payees, even if they have a lien. Satisfaction of any
such fee will be a matter between the claimant and such attorney. If
payment is made by electronic transfer, the funds will be paid into the
account of the claimant. However, if requested, the payment may be made
into the attorney's escrow account provided the claimant has provided
written authorization.
(c) In a structured settlement the structured settlement broker
will be the sole payee, who is authorized to issue checks for the
amounts set forth in the settlement agreement. The up-front cash
payment may be deposited into an escrow account established for the
benefit of the claimant.
(d) If a claimant is a minor or has been declared incompetent by a
court or other authority authorized to do so, payment will be made to
the court-appointed guardian of the minor or incompetent, at a
financial institution approved by the court approving the settlement.
(e) If the claimant is representing a deceased's estate on a
wrongful death claim, or a survival action on behalf of the deceased,
the payment will be made to the court-appointed representative of the
estate. No payment will be made directly to the estate.
Note to Sec. 536.70: See also Sec. 536.63 and DA Pam 27-162,
paragraphs 2-73 and 2-81.
Sec. 536.71 Fund sources.
(a) 31 U.S.C. 1304 sets forth the type and limits of claims payable
out of the Judgment Fund. Only final payments that are not payable out
of agency funds are allowable, per the Treasury Financial Manual,
Volume I, part 6, Chapter 3110, at Section 3115, September 2000
(available at http://www.fms.treas.gov/tfm/vol1/v1p6c310.pdf).
Threshold amounts for payment from the judgment fund vary according to
the subpart and statutes under which a claim is processed. To determine
the threshold amount for any given payment procedure one must arrive at
a sum of all awards for all claims arising out of that incident,
including derivative claims. A joint amount is not acceptable. A claim
for injury to a spouse or a child is a separate claim from one for loss
of consortium or services by a spouse or parent. The monetary limits of
$2,500 set forth in subpart D and $100,000 set forth in subparts C, F
or J of this part, apply to each separate claim.
(b) A subpart D, E, or subpart G of this part, Sec. Sec. 536.107
through 536.113 claim for $2,500 or less is paid from the open claims
allotment (see AR 27-20 paragraph 13-6b(1)) or, if arising from a
project funded by a civil works appropriation, from COE civil works
funds. The Department of the Treasury pays any settlement exceeding
$2,500 in its entirety, from the Judgment Fund. However, if a subpart G
of this part, Sec. Sec. 536.107-536.113 claim is treated as a
noncombat activity claim, payment is made as set forth in paragraph (c)
of this section.
(c) The first $100,000 for each claimant on a claim settled under
subparts C, F or J of this part is paid from the open claims allotment.
Any amount over $100,000 is paid out of the Judgment Fund.
(d) If not over $500,000, a claim arising under subpart H of this
part is paid from the open claims allotment or civil works project
funds as appropriate. A claim exceeding $500,000 is paid entirely by a
deficiency appropriation.
(e) AAFES or NAFI claims are paid from nonappropriated funds,
except when such claims are subject to apportionment between
appropriated and nonappropriated funds. See DA Pam 27-162, paragraph 2-
80h.
(f) COE claims arising out of projects not funded out of civil
works project funds are payable from the open claims allotment not to
exceed $2,500 for subpart D claims and $100,000 for claims arising from
subparts C, F or J of this part and from the Judgment Fund, over such
amounts.
Note to Sec. 536.71: For further discussion see DA Pam 27-162,
paragraph 2-80.
[[Page 46284]]
Sec. 536.72 Finality of settlement.
A claimant's acceptance of an award, except for an advance payment
or a split payment for property damage only, constitutes a release of
the United States and its employees from all liability. Where
applicable, a release should include the ARNG or the sending State. For
further discussion see DA Pam 27-162, paragraph 2-82.
Subpart C--Claims Cognizable Under the Military Claims Act
Sec. 536.73 Statutory authority for the Military Claims Act.
The statutory authority for this subpart is contained in the Act of
August 10, 1956 (70A Stat. 153, 10 U.S.C. 2733), commonly referred to
as the Military Claims Act (MCA), as amended by 90-521, September 1968
(82 Stat. 874); Public Law 90-522, September 1968 (82 Stat. 875);
Public Law 90-525, September 1968 (82 Stat. 877); Public Law 93-336,
July 8, 1974 (88 Stat. 291); Public Law 98-564, October 1984 (98 Stat.
2918); and Public Law 103-337, October 1994 (108 Stat. 2664).
Sec. 536.74 Scope for claims under the Military Claims Act.
(a) The guidance set forth in this subpart applies worldwide and
prescribes the substantive bases and special procedural requirements
for the settlement of claims against the United States for death or
personal injury, or damage to, or loss or destruction of, property:
(1) Caused by military personnel or civilian employees (enumerated
in Sec. 536.23(b)) acting within the scope of their employment, except
for non-federalized Army National Guard soldiers as explained in
subpart F of this part; or
(2) Incident to the noncombat activities of the armed services (see
AR 27-20, Glossary).
(b) A tort claim arising in the United States, its commonwealths,
territories, and possessions may be settled under this subpart if the
Federal Tort Claims Act (FTCA) does not apply to the type of claim
under consideration or if the claim arose incident to noncombat
activities. For example, a claim by a service member for property loss
or damage incident to service may be settled if the loss arises from a
tort and is not payable under AR 27-20, Chapter 11.
(c) A tort claim arising outside the United States may be settled
under this subpart only if the claimant has been determined to be an
inhabitant (normally a resident) of the United States at the time of
the incident giving rise to the claim. See Sec. 536.136(b).
Sec. 536.75 Claims payable under the Military Claims Act.
(a) General. Unless otherwise prescribed, a claim for personal
injury, death, or damage to, or loss or destruction of, property is
payable under this subpart when:
(1) Caused by an act or omission of military personnel or civilian
employees of the DA or DOD, acting within the scope of their
employment, that is determined to be negligent or wrongful; or
(2) Incident to the noncombat activities of the armed services.
(b) Property. Property that may be the subject of claims for loss
or damage under this subpart includes:
(1) Real property used and occupied under lease (express, implied,
or otherwise). See Sec. 536.34(m) and paragraph 2-15m of DA Pam 27-
162.
(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.
(3) Registered or insured mail in the DA's possession, even though
the loss was caused by a criminal act.
(4) Property of a member of the armed forces that is damaged or
lost incident to service, if such a claim is not payable as a personnel
claim under AR 27-20, chapter 11.
(c) Maritime claims. Claims that arise on the high seas or within
the territorial waters of a foreign country are payable unless settled
under subpart H of this part.
Sec. 536.76 Claims not payable under the Military Claims Act.
(a) Those resulting wholly from the claimant's or agent's negligent
or wrongful act. (See Sec. 536.77(a)(1)(i) on contributory
negligence).
(b) Claims arising from private or domestic obligations rather than
from government transactions.
(c) Claims based solely on compassionate grounds.
(d) A claim for any item, the acquisition, possession, or
transportation of which was in violation of DA directives, such as
illegal war trophies.
(e) Claims for rent, damage, or other payments involving the
acquisition, use, possession or disposition of real property or
interests therein by and for the Department of the Army (DA) or
Department of Defense (DOD). See Sec. 536.34(m) and paragraph 2-15m of
DA Pam 27-162.
(f) Claims not in the best interests of the United States, contrary
to public policy, or otherwise contrary to the basic intent of the
governing statute (10 U.S.C. 2733); for example, claims for property
damage or loss or personal injury or death of inhabitants of unfriendly
foreign countries or individuals considered to be unfriendly to the
United States. When a claim is considered not payable for the reasons
stated in this section, it will be forwarded for appropriate action to
the Commander USARCS with the recommendations of the responsible claims
office.
(g) Claims 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 from
bringing an otherwise payable claim for damage, loss, or destruction of
personal property in the custody of the government.
(h) A claim for damages or injury, which a receiving State should
adjudicate and pay under an international agreement, unless a
consistent and widespread alternative process of adjudicating and
paying such claims has been established within the receiving State. See
DA Pam 27-162, paragraph 3-4a, for further discussion of the conditions
of waiver.
(i) Claims listed in Sec. Sec. 536.42, 536.43, 536.44, 536.45, and
536.46 of this part, except for the exclusion listed in Sec.
536.45(k). Additionally, the exclusions in Sec. Sec. 536.45(a), (b),
(e) and (k) do not apply to a claim arising incident to noncombat
activities.
(j) Claims based on strict or absolute liability and similar
theories.
(k) Claims payable under subparts D or J of this part, or under AR
27-20, chapter 11.
(l) Claims involving DA vehicles covered by insurance in accordance
with requirements of a foreign country unless coverage is exceeded or
the insurer is bankrupt. When an award is otherwise payable and an
insurance settlement is not reasonably available, a field claims office
should request permission from the Commander USARCS to pay the award,
provided that an assignment of benefits is obtained.
Sec. 536.77 Applicable law for claims under the Military Claims Act.
(a) General principles. (1) Tort claims excluding claims arising
out of noncombat activities. (i) In determining liability, such claims
will be evaluated
[[Page 46285]]
under general principles of law applicable to a private individual in
the majority of American jurisdictions, except where the doctrine of
contributory negligence applies. The MCA requires that contributory
negligence be interpreted and applied according to the law of the place
of the occurrence, including foreign (local) law for claims arising in
foreign countries (see 10 U.S.C. 2733(b)(4)).
(ii) Claims are cognizable when based on those acts or omissions
recognized as tortious by a majority of jurisdictions that require
proof of duty, negligence, and proximate cause resulting in compensable
injury or loss subject to the exclusions set forth at Sec. 536.76.
Strict or absolute liability and similar theories are not grounds for
liability under this subpart.
(2) Tort claims arising out of noncombat activities. Claims arising
out of noncombat activities under Sec. Sec. 536.75(a)(2) and (b) are
not tort claims and require only proof of causation. However, the
doctrine of contributory negligence will apply, to the extent set forth
in 10 U.S.C. 2733(b)(4) and paragraph (a)(1)(i) of this section.
(3) Principles applicable to all subpart C claims. (i)
Interpretation of meanings and construction of questions of law under
the MCA will be determined in accordance with federal law. The
formulation of binding interpretations is delegated to the Commander
USARCS, provided that the statutory provisions of the MCA are followed.
(ii) Scope of employment will be determined in accordance with
federal law. Follow guidance from reported FTCA cases. The formulation
of a binding interpretation is delegated to the Commander USARCS,
provided the statutory provisions of the MCA are followed.
(iii) The collateral source doctrine is not applicable.
(iv) The United States will only be liable for the portion of loss
or damage attributable to the fault of the United States or its
employees. Joint and several liability is inapplicable.
(v) No allowance will be made for court costs, bail, interest,
inconvenience or expenses incurred in connection with the preparation
and presentation of the claim.
(vi) Punitive or exemplary damages are not payable.
(vii) Claims for negligent infliction of emotional distress may
only be entertained when the claimant suffered physical injury arising
from the same incident as the claim for emotional distress, or the
claimant is the immediate family member of an injured party/decedent,
was in the zone of danger and manifests physical injury for the
emotional distress. Claims for intentional infliction of emotional
distress will be evaluated under general principles of American law as
set forth in paragraph (a)(1)(i) of this section and will be considered
as an element of damages under paragraph (b)(3)(ii) of this section.
Claims for either negligent or intentional infliction of emotional
distress are excluded when they arise out of assault, battery, false
arrest, false imprisonment, malicious prosecution, abuse of process,
libel, or slander, as defined in Sec. 536.45(h).
(viii) In a claim for personal injury or wrongful death, the total
award for non-economic damages to any direct victim and all persons,
including those derivative to the claim, who claim injury by or through
that victim will not exceed $500,000. However, separate claims for
emotional distress considered under paragraph (b)(1) of this section
are not subject to the $500,000 cap for the wrongful death claim as
they are not included in the wrongful death claim; rather, each is a
separate claim with its own $500,000 cap under paragraph (b)(3)(ii) of
this section. Continuous or repeated exposure to substantially the same
or similar harmful activity or conditions is treated as one incident
for the purposes of determining the extent of liability. If the claim
accrued prior to September 1, 1995, these limitations do not apply. Any
such limitation in the law of the place of occurrence will apply.
(b) Personal injury claims. (1) Eligible claimants. Only the
following may claim:
(i) Persons who suffer physical injuries or intentional emotional
distress, but not subrogees (when claiming property loss or damage,
medical expenses or lost earnings); see paragraph (a)(3)(iii) of this
section.
(ii) Spouses for loss of consortium, but not parent-child or child-
parent loss of consortium;
(iii) Members of the immediate family who were in the zone of
danger of the injured person as defined in paragraph (a)(3)(vii) of
this section.
(2) Economic damages. Elements of economic damage are limited to
the following:
(i) Past expenses, including medical, hospital and related expenses
actually incurred. Nursing and similar services furnished gratuitously
by a family member are compensable. Itemized bills or other suitable
proof must be furnished. Expenses paid by, or recoverable from,
insurance or other sources are not recoverable.
(ii) Future medical, hospital, and related expenses. When
requested, a medical examination is required.
(iii) Past lost earnings as substantiated by documentation from
both the employer and a physician.
(iv) Loss of earning capacity and ability to perform services, as
substantiated by acceptable medical proof. When requested, past federal
income tax forms must be submitted for the previous five years and the
injured person must undergo an independent medical examination (IME).
Estimates of future losses must be discounted to present value at a
discount rate of one to three percent after deducting for income taxes.
When a medical trust providing for all future care is established,
personal consumption may be deducted from future losses.
(v) Compensation paid to a person for essential household services
that the injured person can no longer provide for himself or herself.
These costs are recoverable only to the extent that they neither have
been paid by, nor are recoverable from, insurance.
(3) Non-economic damages. Elements of non-economic damages are
limited to the following:
(i) Past and future conscious pain and suffering. This element is
defined as physical discomfort and distress as well as mental and
emotional trauma. Loss of enjoyment of life, whether or not it is
discernible by the injured party, is compensable. The inability to
perform daily activities that one performed prior to injury, such as
recreational activities, is included in this element. Supportive
medical records and statements by health care personnel and
acquaintances are required. When requested, the claimant must submit to
an interview.
(ii) Emotional distress. Emotional distress under the conditions
set forth in paragraph (a)(3)(vii) of this section.
(iii) Physical disfigurement. This element is defined as impairment
resulting from an injury to a person that causes diminishment of beauty
or symmetry of appearance rendering the person unsightly, misshapen,
imperfect, or deformed. A medical statement and photographs,
documenting claimant's condition, may be required.
(iv) Loss of consortium. This element is defined as conjugal
fellowship of husband and wife and the right of each to the company,
society, cooperation, and affection of the other in every conjugal
relation.
(c) Wrongful death claims. The law of the place of the incident
giving rise to the claim will apply to claims arising in the United
States, its commonwealths, territories or possessions.
[[Page 46286]]
(1) Claimant. (i) Only one claim may be presented for a wrongful
death. It shall be presented by the decedent's personal representative
on behalf of all parties in interest. The personal representative must
be appointed by a court of competent jurisdiction prior to any
settlement and must agree to make distribution to the parties in
interest under court jurisdiction, if required.
(ii) Parties in interest are the surviving spouse, children, or
dependent parents to the exclusion of all other parties. If there is no
surviving spouse, children, or dependent parents, the next of kin will
be considered a party or parties in interest. A dependent parent is one
who meets the criteria set forth by the Internal Revenue Service to
establish eligibility for a DOD identification card.
(2) Economic loss. Elements of economic damages are limited to the
following:
(i) Loss of monetary support of a family member from the date of
injury causing death until expiration of decedent's worklife
expectancy. When requested, the previous five years federal income tax
forms must be submitted. Estimates must be discounted to present value
at one to three percent after deducting for taxes and personal
consumption. Loss of retirement benefits is compensable and similarly
discounted after deductions.
(ii) Loss of ascertainable contributions, such as money or gifts to
other than family member claimants as substantiated by documentation or
statements from those concerned.
(iii) Loss of services from date of injury to end of life
expectancy of the decedent or the person reasonably expected to receive
such services, whichever is shorter.
(iv) Expenses as set forth in paragraph (b)(2)(i) of this section.
In addition, burial expenses are allowable. Expenses paid by, or
recoverable from, insurance or other sources are not recoverable.
(3) Non-economic loss. Elements of damages are limited to the
following:
(i) Pre-death conscious pain and suffering.
(ii) Loss of companionship, comfort, society, protection, and
consortium suffered by a spouse for the death of a spouse, a child for
the death of a parent, or a parent for the death of a child.
(iii) Loss of training, guidance, education, and nurture suffered
by a child under the age of 18 for the death of a parent, until the
child becomes 18 years old.
(iv) Claims for the survivors' emotional distress, mental anguish,
grief, bereavement, and anxiety are not payable, in particular claims
for intentional or negligent infliction of emotional distress to
survivors arising out of the circumstances of a wrongful death are
personal injury claims falling under Sec. 536.77(b)(3).
(d) Property damage claims. The following provisions apply to all
claims arising in the United States, its commonwealths, territories and
possessions.
(1) Such claims are limited to damage to, or loss of, tangible
property and costs directly related thereto. Consequential damages are
not included. (See Sec. 536.50(e) and DA Pam 27-162, paragraph 2-56a.)
(2) Proper claimants are described in Sec. 536.27. Claims for
subrogation are excluded. (See Sec. 536.27(e)). However, there is no
requirement that the claimant use personal casualty insurance to
mitigate the loss.
(3) Allowable elements of damages and measure of proof (additions
to these elements are permissible with concurrence of the Commander
USARCS). These elements are discussed in detail in DA Pam 27-162,
paragraph 2-54.
(i) Damages to real property.
(ii) Damage to or loss of personal property, or personal property
that is not economically repairable.
(iii) Loss of use.
(iv) Towing and storage charges.
(v) Loss of business or profits.
(vi) Overhead.
Sec. 536.78 Settlement authority for claims under the Military Claims
Act.
(a) Authority of the Secretary of the Army. The Secretary of the
Army, the Army General Counsel, as the Secretary's designee, or another
designee of the Secretary of the Army may approve settlements in excess
of $100,000.
(b) Delegations of authority. (1) Denials and final offers made
under the delegations set forth herein are subject to appeal to the
authorities specified in paragraph (d) of this section.
(2) The Judge Advocate General (TJAG) and the Assistant Judge
Advocate General (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.
(3) The Commander USARCS is 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 Judge Advocate (JA) or Staff Judge Advocate (SJA), subject
to limitations that USARCS may impose, and chiefs of a command claims
service are delegated authority to pay up to $25,000 in settlement,
regardless of the amount claimed, and to disapprove or make a final
offer in a claim presented in an amount not exceeding $25,000.
(5) A head of an area claims office (ACO) is 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. A head of a claims processing
office (CPO) with approval authority is 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.
(6) Authority to further delegate payment authority is set forth in
Sec. 536.3(g)(1) of this part. For further discussions also related to
approval, settlement and payment authority see also paragraph 2-69 of
DA Pam 27-162.
(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 monetary jurisdiction of the
authority initially acting on them, no final offer will be made. All
claims will be forwarded, along with a recommended disposition, to the
authority who has monetary jurisdiction over the largest claim for a
determination of liability. However, where each individual claim,
including derivative claims, can be settled within the monetary
authority initially acting on them, and none are subject to denial, all
such claims may be settled even though the total amount exceeds the
monetary jurisdiction of the approving or settlement authority.
(2) If such authority determines that federal liability is
established, he or she may return claims of lesser value to the field
claims office for settlement within that office's jurisdiction. The
field claims office must take care to avoid compromising the higher
authority's discretion by conceding liability in claims of lesser
amount.
(d) Appeals. Denials or final offers on claims described as follows
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, exclusionary language in a
federal statute governing compensation of federal employees for
[[Page 46287]]
job-related injuries (see Sec. 536.44), or untimely filing, TJAG or
TAJAG will render final decisions on appeals, except that claims
presented for $25,000 or less, and not acted upon 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, his or her designee, or
the chief of a command claims service when such claims are acted on by
an ACO under such service's jurisdiction.
(4) Sections 536.64, 536.65, and 536.66 of this part set forth the
rules relating to the notification of appeal rights and processing.
(e) Delegated authority. Authority delegated by this section will
not be exercised unless the settlement or approval authority has been
assigned an office code.
Sec. 536.79 Action on appeal under the Military Claims Act.
(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 claim file and decide
whether additional investigation is required; ensure that all
allegations or evidence presented by the claimant, agent, or attorney
are documented; and ensure that all pertinent evidence is included. If
claimants state that they appeal, but do not submit supporting
materials within the 60-day appeal period or an approved extension
thereof, these appeals will be determined 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, 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 that found by any necessary additional
investigation, indicates that 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 adversarial
proceeding, no form of hearing is authorized. A request by the claimant
for access to documentary evidence in the claim file to be used in
considering the appeal will be granted unless law or regulation does
not permit access.
(e) If the appellate 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 he or she
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 future recourse.
Sec. 536.80 Payment of costs, settlements, and judgments related to
certain medical malpractice claims.
(a) General. Costs, settlements, or judgments cognizable under 10
U.S.C. 1089(f) for personal injury or death caused by any physician,
dentist, nurse, pharmacist, paramedic, or other supporting personnel
(including medical and dental technicians, nurse assistants,
therapists, and Red Cross volunteers of the Army Medical Department
(AMEDD), AMEDD personnel detailed for service with other than a federal
department, agency, or instrumentality and direct contract personnel
identified in the contract as federal employees), will be paid provided
that:
(1) The alleged negligent or wrongful actions or omissions occurred
during the performance of medical, dental, or related health care
functions (including clinical studies and investigations) while the
medical or health care employee was acting 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.
(3) Such personnel cooperate in the defense of the action on its
merits.
(b) Requests for contribution or indemnification. All requests for
contribution or indemnification under this section should be forwarded
to the Commander USARCS for action, following the procedures set forth
in this subpart.
Sec. 536.81 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 personal injury or loss of property
caused by any attorney, paralegal, or other member of a legal staff
will be paid if:
(1) The alleged negligent or wrongful actions or omissions occurred
during the provision or performance of legal services while the
attorney or legal employee was 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;
(3) Such personnel cooperate in the defense of the action on the
merits.
(b) Requests for contribution or indemnification. All requests for
contribution or indemnification under this section should be forwarded
to the Commander USARCS for action, following the procedures set forth
in this subpart.
Sec. 536.82 Reopening an MCA claim after final action by a settlement
authority.
(a) Original approval or settlement authority (including TAJAG,
TJAG, Secretary of the Army, or the Secretary's designees). (1) An
original settlement authority may reconsider the denial of, or final
offer on, a claim brought under the MCA upon request of the claimant or
the claimant's authorized agent. In the absence of such a request, the
settlement authority may on his or her initiative reconsider a claim.
(2) An original approval or settlement authority may reopen and
correct action on an MCA claim previously settled in whole or in part
(even if a settlement agreement has been executed) when it appears that
the original action was incorrect in law or fact based on the evidence
of record at the time of the action or subsequently received. For
errors in fact, the new evidence must not have been discoverable at the
time of final action by either the Army or the claimant through the
exercise of reasonable diligence. Corrective action may also be taken
when an error contrary to the parties' mutual understanding is
discovered in the original action. If the settlement or approval
authority determines that their original action was incorrect, they
will modify the action and, if appropriate, make a supplemental
payment. The basis for a change in action will be stated in a
memorandum included in the file. For example, a claim was settled for
$15,000, but the settlement
[[Page 46288]]
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. A settlement authority who has reason
to believe that a settlement was obtained by fraud on the part of the
claimant or claimant's legal representative will reopen action on that
claim and, if the belief is substantiated, correct the action. The
basis for correcting an action will be stated in a memorandum and
included in the file.
(b) A successor approval or settlement authority (including TAJAG,
TJAG, Secretary of the Army, or the Secretary's designees). (1)
Reconsideration. A successor approval or settlement authority may
reconsider the denial of, or final offer on, an MCA claim upon request
of the claimant or the claimant's authorized agent 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 that
was previously settled in whole or in part for the same reasons that an
original authority may do so.
(c) Time requirement for filing request for reconsideration.
Requests postmarked more than five years from the date of mailing of
final notice will be denied based on the doctrine of laches.
(d) Finality of action. Action by the appropriate authority (either
affirming the prior action or granting full or granting full or partial
relief) is final under the provisions of 10 U.S.C. 2735. Action upon a
request for reconsideration constitutes final administrative
disposition of a claim. No further requests for reconsideration will be
allowed except on the basis of fraud.
Subpart D--Claims Cognizable Under the Federal Tort Claims Act
Sec. 536.83 Statutory authority for the Federal Tort Claims Act.
The statutory authority for this subpart is the Federal Tort Claims
Act (FTCA) (60 Stat. 842, 28 U.S.C. 2671-2680), as amended by Public
Law 89-506, July 1966 (80 Stat. 306); Public Law 93-253, March 1974 (88
Stat. 50); Public Law 97-124, December 1981 (93 Stat. 1666); Public Law
100-694, November 1988 (102 Stat. 4563-67); and Public Law 101-552,
November 1996 (104 Stat. 734); and as implemented by the Attorney
General's Regulations (28 CFR 14.1 through 14.11 and its Appendix), all
of which are posted on the USARCS Web site; for the address see Sec.
536.2(a).
Sec. 536.84 Scope for claims under the Federal Tort Claim Act.
(a) General. This subpart applies in the United States, its
commonwealths, territories and possessions (all hereinafter
collectively referred to as United States or U.S.). It prescribes the
substantive bases and special procedural requirements under the FTCA
and the implementing Attorney General's regulations for the
administrative settlement of claims against the United States based on
death, personal injury, or damage to, or loss of, property caused by
negligent or wrongful acts or omissions by the United States or its
employees acting within the scope of their employment. If a conflict
exists between this part and the Attorney General's regulations, the
latter governs.
(b) Effect of the Military Claims Act. A tort claim arising in the
United States, its commonwealths, territories, and possessions may be
settled under subpart C of this part if the Federal Tort Claims Act
(FTCA) does not apply to the type of claim under consideration or if
the claim arose incident to noncombat activities. If a claim is filed
under both the FTCA and the Military Claims Act (MCA), or when both
statutes apply equally, final action thereon will follow the procedures
set forth in DA Pam 27-162, paragraphs 2-74 through 2-76, discussing
final offers and denial letters.
Sec. 536.85 Claims payable under the Federal Tort Claims Act.
(a) Unless otherwise prescribed, claims for death, personal injury,
or damage to, or loss of, property (real or personal) are payable under
this subpart when the injury or damage is caused by negligent or
wrongful acts or omissions of military personnel or civilian employees
of the Department of the Army or Department of Defense 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 waiver of sovereign immunity without
which the United States may not be sued in tort. Similarly, neither the
Fifth Amendment nor any other provision of the U.S. Constitution
creates or permits a federal cause of action allowing recovery in tort.
Immunity must be expressly waived, as the FTCA waives it.
(b) To be payable, a claim must arise from the acts or omissions of
an ``employee of the government'' under 28 U.S.C. 2671. Categories of
such employees are listed in Sec. 536.23(b) of this part.
Sec. 536.86 Claims not payable under the Federal Tort Claims Act.
A claim is not payable if it is identified as an exclusion in DA
Pam 27-162, paragraphs 2-36 through 2-43.
Sec. 536.87 Applicable law for claims under the Federal Tort Claims
Act.
The applicable law for claims falling under the Federal Tort Claims
Act is set forth in Sec. Sec. 536.41 through 536.52.
Sec. 536.88 Settlement authority for claims under the Federal Tort
Claims Act.
(a) General. Subject to the Attorney General's approval of payments
in excess of $200,000 for a single claim, or if the total value of all
claims and potential claims arising out of a single incident exceeds
$200,000 (for which USARCS must write an action memorandum for
submission to the Department of Justice), the following officials are
delegated authority to settle (including payment in full or in part, or
denial) and make final offers on claims under this subpart:
(1) The Judge Advocate General (TJAG);
(2) The Assistant Judge Advocate General (TAJAG); and
(3) The Commander USARCS.
(b) ACO heads. A head of an area claims office (ACO) is delegated
authority to pay up to $50,000 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 $50,000, provided the value of all
claims and potential claims arising out of a single incident does not
exceed $200,000.
(c) CPO heads. A head of a claims processing office (CPO) with
approval authority is delegated authority to approve, in full or in
part, claims presented for $5,000 or less, and to pay claims regardless
of amount, provided an award of $5000 or less is accepted in full
satisfaction of the claim.
(d) Further guidance. Authority to further delegate payment
authority is set forth in Sec. 536.3(g)(1) of this part. For further
discussions related to approval, settlement and payment authority see
paragraphs 2-69 and 2-71 of DA Pam 27-162.
(e) Settlement of multiple claims from a single incident. (1) Where
a single act or incident gives rise to multiple claims cognizable under
this subpart, and where one claim cannot be settled within the monetary
jurisdiction for one claim of the authority acting on the claim or all
claims cannot be settled within the monetary jurisdiction for a
[[Page 46289]]
single incident, no final offer will be made. All claims will be
forwarded, along with a recommended disposition, to the Commander
USARCS.
(2) If the Commander USARCS determines that all claims can be
settled for a total of $200,000 or less, he may return claims to the
field office for settlement. If the Commander USARCS, determines that
all claims cannot be settled for a total of $200,000, he must request
Department of Justice authority prior to settlement of any one claim.
The field claims office must not concede liability by paying any one
claim of lesser value.
Sec. 536.89 Reconsideration of Federal Tort Claims Act claims.
(a) Reconsideration of paid claims. Under the provision of 28
U.S.C. 2672, neither an original or successor authority may reconsider
a claim which has been paid except as expressly set forth below.
Payment of an amount for property damage will bar payment for personal
injury or death except for a split claim provided the provisions of
Sec. 536.60 are followed. Supplemental payments for either property or
injury are barred by 10 U.S.C. 2672. Accordingly, claimants will be
informed that only one claim or payment is permitted.
(b) Notice of right to reconsideration. Notice of disapproval or
final offer issued by an authority listed in Sec. 536.88(b) will
advise the claimant of a right to reconsideration to be submitted in
writing not later than six months from the date of mailing the notice.
Such a request will suspend the requirement to bring suit for a minimum
of six month or until action is taken on the request. The claimant will
be so informed. See the Attorney General's Regulations at 28 CFR
14.9(b), posted on the USARCS Web site; for the address see Sec.
536.2(a).
(c) Original approval or settlement authority. (1) Reconsideration.
An original settlement authority may reconsider the denial of, or final
offer on, a claim brought under the FTCA upon request of the claimant
or the legal representative.
(2) Settlement correction. An original approval or settlement
authority may reopen and correct action on a claim previously settled
in whole or in part (even if a settlement agreement has been executed)
when an error contrary to the parties' mutual understanding is
discovered in the original action. For example: a claim was 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. An approval
or settlement authority who has reason to believe that a settlement was
obtained by fraud on the part of the claimant or claimant's legal
representative will reopen action on that claim, and if the belief is
substantiated, correct the action. The basis for correcting an action
will be stated in a memorandum and included in the file.
(d) A successor approval or settlement authority. (1)
Reconsideration. A successor approval or settlement authority may
reconsider the denial of, or final offer on, an FTCA claim 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 that
was previously settled in whole or in part for the same reasons that an
original authority may do so.
(e) Requirement to forward a request for reconsideration. When full
relief is not granted, forward all requests for reconsideration of an
ACO's denial or final offer to the Commander USARCS for action. Include
all investigative material and legal analyses generated by the request.
(f) Action prior to forwarding. A request for reconsideration
should disclose fully the legal and/or factual bases that the claimant
has asserted as grounds for relief and provide appropriate supporting
documents or evidence. 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, granting relief as warranted. When further
settlement efforts appear unwarranted, the entire file with a
memorandum of opinion will be forwarded to the Commander USARCS. The
claimant will be informed of such transfer.
(g) Finality of action. Action by the appropriate authority (either
affirming the prior action or granting full or partial relief) upon a
request for reconsideration 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 six-month period set
forth in 28 U.S.C. 2401(b).
Subpart E--Claims Cognizable Under the Non-Scope Claims Act
Sec. 536.90 Statutory authority for the Non-Scope Claims Act.
The statutory authority for this subpart is set forth in the Act of
October 1962, 10 U.S.C. 2737, 76 Stat. 767, commonly called the ``Non-
Scope Claims Act (NSCA).''
Sec. 536.91 Scope for claims under the Non-Scope Claims Act.
(a) This subpart applies worldwide and prescribes the substantive
bases and special procedural requirements for the administrative
settlement and payment of not more than $1,000 for any claim against
the United States for personal injury, death or damage to, or loss of,
property caused by military personnel or civilian employees, 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, which claim is not
cognizable under any other provision of law.
(b) 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 means
of transportation on land (1 U.S.C. 4).
(c) Any claim in which there appears to be a dispute about whether
the employee was acting within the scope of employment will be
considered under subparts C, D, or F of this part. Only when all
parties, including an insurer, agree that there is no ``in scope''
issue will the claim be considered under this subpart.
Sec. 536.92 Claims payable under the Non-Scope Claims Act.
(a) General. A claim for personal injury, death, or damage to, or
loss of, property, real or personal, is payable under this subpart
when:
(1) Caused by negligent or wrongful acts or omissions of Department
of Defense or Department of the Army (DA) military personnel or
civilian employees, as listed in Sec. 536.23(b):
(i) Incident to the use of a vehicle belonging to the United States
at any place or;
(ii) Incident to the use of any other property belonging to the
United States on a government installation.
(2) The claim is not payable under any other claims statute or
regulation available to the DA for the administrative settlement of
claims.
(b) Personal injury or death. A claim for personal injury or death
is allowable only for the cost of reasonable medical,
[[Page 46290]]
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 to or loss of
property is allowable only for the cost of reasonable repairs or value
at time of loss, whichever is less.
Sec. 536.93 Claims not payable under the Non-Scope Claims Act.
Under this subpart, a claim is not payable that:
(a) Results in whole or in part from the negligent or wrongful act
of the claimant or his or her agent or employee. The doctrine of
comparative negligence does not apply.
(b) Is for medical, hospital, or burial expenses furnished or paid
by the United States.
(c) Is for any element of damage pertaining to personal injuries or
death other than as provided in Sec. 536.93(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.
(d) Is for loss of use of property or for the cost of substitute
property, for example, a rental.
(e) Is legally recoverable by the claimant under an indemnifying
law or indemnity contract. If the claim is in part legally recoverable,
the part recoverable by the claimant is not payable.
(f) Is a subrogated claim.
(g) In some circumstances some claims may be partially payable. See
DA Pam 27-162, paragraph 5-4 for more information on claims that may be
partially payable.
Sec. 536.94 Settlement authority for claims under the Non-Scope
Claims Act.
(a) Settlement authority. The following are delegated authority to
pay up to $1,000 in settlement of each claim arising out of one
incident and to disapprove a claim presented in any amount under this
subpart:
(1) The Judge Advocate General (TJAG);
(2) The Assistant Judge Advocate General (TAJAG);
(3) The Commander USARCS;
(4) The Judge Advocate (JA) or Staff Judge Advocate (SJA) or chief
of a command claims service; and
(5) The head of an area claims office (ACO).
(b) Approval authority. The head of a claims processing office
(CPO) with approval authority is 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) Further guidance. Authority to further delegate payment
authority is set forth in Sec. 536.3(g)(1) of this part. For further
discussions also related to approval, settlement and payment authority
see also paragraphs 2-69 and 2-71 of DA Pam 27-162.
Sec. 536.95 Reconsideration of Non-Scope Claims Act claims.
The provisions of Sec. 536.89 addressing reconsideration apply and
are incorporated herein by reference. If the claim is not cognizable
under the Federal Tort Claims Act, appellate procedures under the
Military Claims Act or NGCA apply.
Subpart F--Claims Cognizable Under the National Guard Claims Act
Sec. 536.96 Statutory authority for the National Guard Claims Act.
The statutory authority for this subpart is contained in the Act of
September 1960 (32 U.S.C. 715, 74 Stat. 878), commonly referred to as
the ``National Guard Claims Act'' (NGCA), as amended by Public Law 87-
212, (75 Stat. 488), September 1961; Public Law 90-486, (82 Stat. 756),
August 1968; Public Law 90-521, (82 Stat. 874), September 1968; Public
Law 90-525, (82 Stat. 877), September 1968; Public Law 91-312, (84
Stat. 412), July 1970; Public Law 93-336, (88 Stat. 291), July 1974;
and Public Law 98-564, (98 Stat. 2918), October 1984.
Sec. 536.97 Scope for claims under National Guard Claims Act.
This subpart applies worldwide and prescribes the substantive bases
and special procedural regulations for the settlement of claims against
the United States for death, personal injury, damage to, or loss or
destruction of property.
(a) Soldiers of the Army National Guard (ARNG) can perform military
duty in an active duty status under the authority of Title 10 of the
United States Code, in a full-time National Guard duty or inactive-duty
training status under the authority of Title 32 of the United States
Code, or in a state active duty status under the authority of a state
code.
(1) When ARNG soldiers perform active duty, they are under federal
command and control and are paid from federal funds. For claims
purposes, those soldiers are treated as active duty soldiers. The NGCA,
32 U.S.C. 715, does not apply.
(2) When ARNG soldiers perform full-time National Guard duty or
inactive-duty training, they are under state command and control and
are paid from federal funds. The NGCA does apply, but as explained in
paragraph (c) of this section it is seldom used.
(3) When ARNG soldiers perform state active duty, they are under
state command and control and are paid from state funds. Federal claims
statutes do not apply, but state claims statutes may apply.
(b) The ARNG also employs civilians, referred to as technicians and
employed under 32 U.S.C. 709. Technicians are usually, but not always,
ARNG soldiers who perform the usual 15 days of annual training (a
category of full-time duty) and 48 drills (inactive-duty training) per
year.
(c) NGCA coverage applies only to ARNG soldiers performing full-
time National Guard duty or inactive-duty training and to technicians.
However, since the NGCA's enactment in 1960, Congress has also extended
Federal Tort Claims Act (FTCA) coverage to these personnel.
(1) In 1968, technicians, who were state employees formerly, were
made federal employees. Along with federal employee status came FTCA
coverage. Technicians no longer have any state status, albeit they are
hired, fired, and administered by a state official, the Adjutant
General, acting as the agent of the federal government.
(2) In 1981, Congress extended FTCA coverage to ARNG soldiers
performing full-time National Guard duty or inactive-duty training
(such as any training or other duty under 32 U.S.C. 316, 502-505).
Unlike making technicians federal employees, this extension of coverage
did not affect their underlying status as state military personnel.
(d) Claims arising from the negligent acts or omissions of ARNG
soldiers performing full-time National Guard duty or inactive-duty
training, or of technicians, will be processed under the FTCA.
Therefore, the NGCA is generally relevant only to claims arising from
noncombat activities or outside the United States. Additionally, claims
by members of the National Guard may be paid for property loss or
damage incident to service if the claim is based on activities falling
under this subpart and is not payable under AR 27-20, chapter 11.
Sec. 536.98 Claims payable under the National Guard Claims Act.
The provisions of Sec. 536.75 apply to claims arising under this
subpart.
[[Page 46291]]
Sec. 536.99 Claims not payable under the National Guard Claims Act.
The provisions of Sec. 536.76 apply to claims arising under this
subpart.
Sec. 536.100 Applicable law for claims under the National Guard
Claims Act.
The provisions of Sec. 536.77 apply to claims arising under this
subpart.
Sec. 536.101 Settlement authority for claims under the National Guard
Claims Act.
The provisions of Sec. 536.78 apply to claims arising under this
subpart.
Sec. 536.102 Actions on appeal under the National Guard Claims Act.
The provisions of Sec. 536.79 apply to claims arising under this
subpart.
Subpart G--Claims Cognizable Under International Agreements
Sec. 536.103 Statutory authority for claims cognizable under
international claims agreements.
The authority for claims presented or processed under this subpart
is set forth in the following federal laws and bi- or multinational
agreements:
(a) 10 U.S.C. 2734a and 10 U.S.C. 2734b (the International
Agreements Claims Act) as amended, for claims arising overseas under
international agreements.
(b) Various international agreements, such as the North Atlantic
Treaty Organization (NATO) Status of Forces Agreement (SOFA) and the
Partnership for Peace (PFP) SOFA.
Sec. 536.104 Current agreements in force.
Current listings of known agreements in force are also posted on
the USARCS Web site; for the address see Sec. 536.2(a).
Sec. 536.105 Responsibilities generally/international agreements
claims.
(a) The Commander USARCS is responsible for:
(1) Providing policy guidance to command claims services or other
responsible judge advocate (JA) offices on SOFA or other treaty
reimbursement programs implementing 10 U.S.C. 2734a and 2734b.
(2) Monitoring the reimbursement system to ensure that programs for
the proper verification and certification of reimbursement are in
place.
(3) Monitoring funds reimbursed to or by foreign governments.
(b) Responsibilities in the continental United States (CONUS)--The
responsibility for implementing these agreements within the United
States has been delegated to the Secretary of the Army (SA). The SA, in
turn, has delegated that responsibility to the Commander USARCS, who is
in charge of the receiving State office for the United States, as
prescribed in DODD 5515.8. The Commander USARCS is responsible for
maintaining direct liaison with sending State representatives and
establishing procedures designed to carry out the provisions of this
subpart.
Sec. 536.106 Definitions for international agreements claims.
(a) ``Force and civilian component of force.'' Members of the
sending State's armed forces on temporary or permanent official duty
within the receiving State, civilian employees of the sending State's
armed forces, and those individuals acting in an official capacity for
the sending State's armed forces. However, under provisions of the
applicable SOFAs the sending State and the receiving State may agree to
exclude from the definition of ``force'' certain individuals, units or
formations that would otherwise be covered by the SOFA. Where such an
exclusion has been created, this subpart will not apply to claims
arising from actions or omission by those individuals, units or
formations. ``Force and civilian component of force'' also includes
claims arising out of acts or omissions made by military or civilian
personnel, regardless of nationality, who are assigned or 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, such as Supreme Allied Command, Atlantic.
(b) Types of claims under agreements. (1) Intergovernmental claims.
Claims of one contracting party against any other contracting party for
damage to property owned by its armed services, or for injury or death
suffered by a member of the armed services engaged in the performance
of official duties, are waived. Claims above a minimal amount for
damage to property owned by a governmental entity other than the armed
services may be asserted. NATO SOFA, Article VIII, paragraph 1-4;
Singapore SOFA, Article XVI, paragraph 2-3.
(2) Third-party scope claims. Claims arising out of any acts or
omissions of members of a force or the civilian component of a sending
State done in the performance of official duty or any other act,
omission, or occurrence for which the sending State is legally
responsible shall be filed, considered and settled in accordance with
the laws and regulations of the receiving State with respect to claims
arising from the activities of its own armed service; see, for example,
NATO SOFA, Article VIII, paragraph 5.
(3) Ex gratia claims. Claims arising out of tortious acts or
omissions not done in the performance of official duties shall be
considered by the sending State for an ``ex gratia'' payment that is
made directly to the injured party; see, for example, NATO SOFA,
Article VIII, paragraph 6.
Sec. 536.107 Scope for international agreements claims arising in the
United States.
This section sets forth procedures and responsibilities for the
investigation, processing, and settlement of claims arising out of any
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 cost sharing reciprocal
international agreements which contain claims settlement provisions
applicable to claims arising in the United States. Article VIII of the
NATO SOFA has reciprocal provisions applying to all NATO member
countries; the Partnership for Peace (PFP) Agreement has similiar
provisions, as do the Singapore and Australian SOFAs.
Sec. 536.108 Claims payable under international agreements (for those
arising in the United States).
(a) Within the United States, Art. VIII, NATO SOFA applies to
claims arising within the North Atlantic Treaty Area, which includes
CONUS and its territories and possessions north of the Tropic of Cancer
(23.5 degrees north latitude). This excludes Puerto Rico, the Virgin
Islands, and parts of Hawaii. Third-party scope claims are payable
under subpart D or, if the claim arises incident to noncombat
activities, under subpart C of this part. Maritime claims are payable
under subpart H of this part. The provisions of these subparts on what
claims are payable apply equally here. The members of the foreign force
or civilian component must be acting in pursuance of the applicable
treaty's objectives.
(b) Within the United States, third-party ex gratia claims are
payable only by the sending State and are not payable under subpart E
of this part.
Sec. 536.109 Claims not payable under international agreements (for
those arising in the United States).
The following claims are not payable:
(a) Claims arising from a member of a foreign force or civilian
component's acts or omissions that do not accord with the objectives of
a treaty
[[Page 46292]]
authorizing their presence in the United States.
(b) Claims arising from the acts or omissions of a member of a
foreign force or civilian component who has been excluded from SOFA
coverage by agreement between the sending State and the United States.
(c) Third-party scope claims arising within the United States that
are not payable under subparts C, D, or H of this part are listed as
barred under those subparts. As sending State forces are considered
assimilated into the U.S. Armed Services for purposes of the SOFAs,
their members are also barred from receiving compensation from the
United States when they are injured incident to their service, Daberkow
v. United States, 581 F.2d 785 (9th Cir. 1978).
Sec. 536.110 Notification of incidents arising under international
agreements (for claims arising in the United States).
To enable USARCS to properly discharge its claims responsibilities
under the applicable SOFAs, it must be notified of all incidents,
including off-duty incidents, in which members of a foreign military
force or civilian component are involved. Any member or employee of the
U.S. armed services who learns of an incident involving a member of a
foreign military force or civilian component resulting in personal
injury, death, or property damage will immediately notify the judge
advocate (JA) or legal officer at the installation or activity to which
such person is assigned or attached. The JA or legal officer receiving
such notification will in turn notify the Commander USARCS. If the
member is neither assigned nor attached to any installation or activity
within the United States, the Commander USARCS, will be notified.
Sec. 536.111 Investigation of claims arising under international
agreements (for those claims arising in the United States).
Responsibility for investigating an incident rests upon the area
claims office (ACO) or claims processing office (CPO) responsible for
the geographic area in which the incident occurred. The Commander
USARCS, an ACO, and a CPO are authorized to designate the legal office
of the installation at which the member of the foreign force or
civilian component is attached, including the legal office of another
armed force, to carry out the responsibility to investigate. The
investigation will comply with the responsible Service's implementing
claims regulation. When the member is neither assigned nor attached
within the United States, the Commander USARCS will furnish assistance.
Sec. 536.112 Settlement authority for claims arising under
international agreements (for those claims arising in the United
States).
Settlement authority is delegated to the Commander USARCS, except
for settlement amounts exceeding the Commander's authority as set forth
in subparts C, D, or H of this part, or in those cases where settlement
is reserved to a higher authority. Pursuant to the applicable SOFA, the
Commander USARCS will report the proposed settlement to the sending
State office for concurrence or objection. See, for example, NATO SOFA,
Article VIII.
Sec. 536.113 Assistance to foreign forces for claims arising under
international agreements (as to claims arising in the United States).
All claims arising from activities of members of NATO, Partnership
for Peace, Singaporean, or Australian forces in the United States are
processed in the same manner as those arising from activities of U.S.
government personnel. All JAs and legal offices will provide assistance
similar to that provided to U.S. armed services personnel.
Sec. 536.114 Scope for claims arising overseas under international
agreements.
(a) This section sets forth guidance on claims arising from any act
or omission of soldiers or members of the civilian component of the
U.S. armed services done in the performance of official duty or arising
from any other act or omission or occurrence for which the U.S. armed
services are responsible under an international agreement. Claims
incidents arising in countries for which the SOFA requires the
receiving State to adjudicate and pay the claims in accordance with its
laws and regulations are subject to partial reimbursement by the United
States.
(b) Claims by foreign inhabitants based on acts or omissions
outside the scope of official duties are cognizable under subpart J of
this part. Claims arising from nonscope acts or omissions by third
parties who are not foreign inhabitants are cognizable under subpart E
but not under subparts C or F of this part.
Sec. 536.115 Claims procedures for claims arising overseas under
international agreements.
(a) SOFA provisions that call for the receiving State to adjudicate
claims have been held to be the exclusive remedy for claims against the
United States, Aaskov v. Aldridge, 695 F. Supp. 595 (D.D.C. 1988);
Dancy v. Department of Army, 897 F. Supp. 612 (D.D.C. 1995).
(b) SOFA provisions that call for the receiving State to adjudicate
claims against the United States usually refer to claims by third
parties brought against members of the force or civilian component.
This includes claims by tourists or business travelers as well as
inhabitants of foreign countries. Depending on how the receiving State
interprets the particular SOFA's class of proper claimants, the
receiving State may also consider claims by U.S. soldiers, civilian
employees, and their family members. Chiefs of command claims services
or other Army JA offices responsible for claims that arise in countries
bound by SOFA or other treaty provisions requiring a receiving State to
consider claims against the United States will ensure that all claims
personnel know the receiving State's policy on which persons or classes
of persons are proper claimants under such provisions. When a claim is
filed both with the receiving State and under either the Military
Claims Act (MCA) or Foreign Claims Act (FCA), the provisions of Sec.
536.76(h) of this part and DA Pam 27-162, paragraph 3-4a apply.
(c) When SOFA provisions provide for receiving State claims
consideration, the time limit for filing such claims may be much
shorter than the two years otherwise allowed under the FCA or MCA. For
example, receiving State claims offices in Germany require that a claim
be filed under the SOFA within three months of the date that the
claimant is aware of the U.S. involvement. If the filing period is
about to expire for claims arising in Germany, have the claimant fill
out a claim form, make two copies, and date-stamp each copy as received
by a sending State claims office. Return the date-stamped original of
the claim to the claimant with instructions to promptly file with the
receiving State claims office. Keep one date-stamped copy as a
potential claim. Forward one date-stamped copy of the claim to the U.S.
Army Claims Service Europe (USACSEUR). This may toll the applicable
German statute of limitations. Additionally, many receiving State
claims offices do not require claimants to demand a sum certain. All
claims personnel must familiarize themselves with the applicable
receiving State law and procedures governing SOFA claims.
(d) All foreign inhabitants who file claims against the United
States that fall within the receiving State's responsibility, such as
claims based on acts or omissions within the scope of U.S. Armed Forces
members' or civilian employees' duties, must file the claim
[[Page 46293]]
with the appropriate receiving State office. Those U.S. inhabitants
whose claims would be otherwise cognizable under the Military Claims
Act (subpart C of this part) and whom the receiving State deems proper
claimants under the SOFA must also file with the receiving State.
(e) A claim filed with, and considered by, a receiving State under
a SOFA or other international agreement claims provision may be
considered under other subparts of this part only if the receiving
State denied the claim on the basis that it was not cognizable under
the treaty or agreement provisions. See DA Pam 27-162, paragraph 3-
4a(2), for conditions of waiver of the foregoing requirement. See also
Sec. Sec. 536.76(h) and 536.138(j) of this part. When a claimant has
filed a claim with a receiving State and received payment, or the claim
has been denied on the merits, such action will be the claimant's final
and exclusive remedy and will bar any further claims against the United
States.
Sec. 536.116 Responsibilities as to claims arising overseas under
international agreements.
(a) Command claims services or other responsible JA offices within
whose jurisdiction SOFA or other treaty provisions provide for a claim
reimbursement system, and where DA has been assigned single-service
responsibility for the foreign country seeking reimbursement (see Sec.
536.17) are responsible for:
(1) Establishing programs for verifying, certifying, and
reimbursing claims payments. Such service or JA office will provide a
copy of its procedures implementing the program to the Commander
USARCS.
(2) Providing the Commander USARCS with budget estimates for
reimbursements in addition to the reports required by AR 27-20,
paragraph 13-7.
(3) Providing the Commander USARCS each month in which payments are
made, with statistical information on 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 classified according to major categories of damage
determined by the Commander USARCS, and an update on major issues or
activities that could affect the reimbursement system's operation or
funding.
(b) Command claims services or other responsible Army JA offices
will ensure that all claims personnel within their areas of
responsibility:
(1) Receive annual training on the receiving State's claims
procedures, including applicable time limitations, procedures and the
responsible receiving State claims offices' locations.
(2) Screen all new claims and inquiries about claims to identify
those claimants who must file with the receiving State.
(3) Ensure that all such claimants are informed of this requirement
and the applicable time limitation.
(4) Ensure that all applicable SOFA claims based on incidents
occurring in circumstances that bring them within the United States'
primary sending State jurisdiction are fully investigated.
Subpart H--Maritime Claims
Sec. 536.117 Statutory authority for maritime claims.
The Army Maritime Claims Settlement Act (AMCSA) (10 U.S.C. 4801-04,
4806, as amended) authorizes the Secretary of the Army or his designee
to administratively settle or compromise admiralty and maritime claims
in favor of, and against, the United States.
Sec. 536.118 Related statutes for maritime claims.
(a) The AMCSA permits the settlement of claims that would
ordinarily fall under the Suits in Admiralty Act (SIAA), 46 U.S.C. app.
741-752; the Public Vessels Act (PVA), 46 U.S.C. app. 781-790; or the
Admiralty Extension Act (AEA), 46 U.S.C. app. 740. Outside the United
States the AMCSA may be used to settle admiralty claims in lieu of the
Military Claims Act or Foreign Claims Act. Within the United States,
filing under the AMCSA is not mandatory for causes of action as it is
for the SIAA or PVA.
(b) Similar maritime claims settlement authority is exercised by
the Department of the Navy under 10 U.S.C. 7363 and 7621-23 and by the
Department of the Air Force under 10 U.S.C. 9801-9804 and 9806.
Sec. 536.119 Scope for maritime claims.
The AMCSA applies worldwide and includes claims that arise on high
seas or within the territorial waters of a foreign country. At 10
U.S.C. 4802 it provides for the settlement or compromise of claims for:
(a) Damage caused by a vessel of, or in the service of, the
Department of Army (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 other
property under the jurisdiction of the DA.
(c) Damage that is maritime in nature and caused by tortious
conduct of U.S. military personnel or federal civilian employees, an
agent thereof, or property under the Army's jurisdiction.
Sec. 536.120 Claims payable as maritime claims.
A claim is cognizable under this subpart if it arises in or on a
maritime location, involves some traditional maritime nexus or
activity, and is caused by the wrongful act or omission of a member of
the U.S. Army, Department of Defense (DOD) or DA civilian employee, or
an agent thereof, while acting within the scope of employment. This
class of claims includes, but is not limited to:
(a) Damage to a ship, boat, barge, or other watercraft;
(b) An injury that involves a ship, boat, barge, or other
watercraft;
(c) Damage to a wharf, pier, jetty, fishing net, farm facilities or
other structures in, on, or adjacent to any body of water;
(d) Damage or injury on land or on water arising under the AEA and
allegedly due to operation of an Army-owned or leased ship, boat,
barge, or other watercraft;
(e) An injury that occurs on board an Army ship, boat, barge or
other watercraft; and
(f) Crash into water of an Army aircraft.
Sec. 536.121 Claims not payable as maritime claims.
Under this subpart, claims are not payable if they:
(a) Are listed in Sec. Sec. 536.42, 536.43, 536.44, 536.45 (except
at (e) and (k)), and 536.46;
(b) Are not maritime in nature;
(c) Are not in the best interests of the United States, are
contrary to public policy, or are otherwise contrary to the basic
intent of the governing statute, for example, claims for property loss
or damage or personal injury or death by inhabitants of unfriendly
foreign countries or by individuals considered to be unfriendly to the
United States. When a claim is considered not payable for the reasons
stated in this section, it will be forwarded for appropriate action to
the Commander USARCS, along with the recommendations of the responsible
claims office.
(d) Are presented by a national, or a corporation controlled by a
national, of a country at war or engaged in armed
[[Page 46294]]
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 incident, was friendly to the
United States. A prisoner of war or an interned enemy alien is not
excluded or barred from bringing a claim for damage, loss, or
destruction of personal property while held in the custody of the
government if the claim is otherwise payable.
(e) Are for damages or injuries that a receiving State should pay
for under an international agreement. See Sec. 536.34(c).
Sec. 536.122 Limitation of settlement of maritime claims.
(a) Within the United States the period of completing an
administrative settlement under the AMCSA is subject to the same time
limitation as that for beginning suit under the SIAA or PVA; that is, a
two-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 two-year
limitation period and the claimant should be so informed, in writing,
when the claim is acknowledged. See Sec. 536.28.
(b) For causes of action under the AEA, filing an administrative
claim is mandatory. However, suit is required under the two-year time
limit applicable to the SIAA and PVA, even though the AEA provides that
no suit shall be filed under six months after filing a claim.
(c) For causes of action arising outside the United States, there
is no time limitation for completing an administrative settlement.
Sec. 536.123 Limitation of liability for maritime claims.
For admiralty claims arising within the United States under the
provisions of the Limitation of Shipowners' Liability Act, 46 U.S.C.
app. 181-188, in cases alleging injury or loss due to negligent
operation of its vessel, the United States may limit its liability to
the value of its vessel after the incident from which the claim arose.
The act requires filing of an action in federal District Court within
six months of receiving written notice of a claim. Therefore, USARCS,
or the Chief Counsel, U.S. Army Corps of Engineers (COE), or his
designee, must be notified within 10 working days 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, including pleasure craft owned by the
United States. USARCS or Chief Counsel, COE will coordinate with the
Department of Justice (DOJ) as to whether to file a limitation of
liability action.
Sec. 536.124 Settlement authority for maritime claims.
(a) The Secretary of the Army, the Army General Counsel as designee
of the Secretary, or other designee of the Secretary may approve any
settlement or compromise of a claim in any amount. A claim settled or
compromised in a net amount exceeding $500,000 will be investigated and
processed and, if approved by the Secretary of the Army or his or her
designee, will be certified to Congress for final approval.
(b) The Judge Advocate General (TJAG), The Assistant Judge Advocate
General (TAJAG), the Commander USARCS, the Chief Counsel COE, or
Division or District Counsel Offices are delegated authority to settle,
such as to deny or approve payment in full or in part, any claim under
this subpart regardless of the amount claimed, provided that any award
does not exceed $100,000.
(c) A Staff Judge Advocate (SJA) or chief of a command claims
service and heads of area claims offices (ACOs) are delegated authority
to pay up to $50,000, regardless of the amount claimed, and to
disapprove or make a final offer on a claim presented in an amount not
exceeding $50,000.
(d) Authority to further delegate payment authority is set forth in
Sec. 536.3(g)(1) of this part. For further discussion also related to
settlement and approval authority see paragraph 2-69 of DA Pam 27-162.
(e) Where the claimed amount or potential claim damage exceeds
$100,000 for COE claims or $50,000 for all others, Commander USARCS
will be notified immediately, and be furnished a copy of the claim and
a mirror file thereafter. See Sec. 536.30 and AR 27-20, paragraph 2-
12.
Subpart I--Claims Cognizable Under Article 139, Uniform Code of
Military Justice
Sec. 536.125 Statutory authority for Uniform Code of Military Justice
(UCMJ) Claims.
The authority for this subpart is Article 139, Uniform Code of
Military Justice (UCMJ) (10 U.S.C. 939, which provides redress for
property willfully damaged or destroyed, or wrongfully taken, by
members of the Armed Forces of the United States.
Sec. 536.126 Purpose of UCMJ claims.
This subpart sets forth the standards to apply and the procedures
to follow in processing claims for the wrongful taking or willful
damage or destruction of property by military members of the Department
of the Army.
Sec. 536.127 Proper claimants; unknown accused--under the UCMJ.
(a) A proper claimant under this subpart includes any individual
(whether civilian or military), a business, charity, or state or local
government that owns, has an ownership interest in, or lawfully
possesses property.
(b) When cognizable claims are presented against a unit because the
individual offenders cannot be identified, this subpart sets forth the
procedures for approval authorities to direct pay assessments,
equivalent to the amount of damages sustained, against the unit members
who were present at the scene and to allocate individual liability in
such proportion as is just under the circumstances.
Sec. 536.128 Effect of disciplinary action, voluntary restitution, or
contributory negligence for claims under the UCMJ.
(a) Disciplinary action. Administrative action under Article 139,
UCMJ, 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 both Article 139, UCMJ,
and this subpart requires independent findings on issues other than
guilt or innocence, a soldier's conviction or acquittal of claim-
related charges is not dispositive of liability under Article 139,
UCMJ.
(b) Voluntary restitution. The approval authority may terminate
Article 139 proceedings without findings if the soldier voluntarily
makes full restitution to the claimant.
(c) Contributory negligence. A claim otherwise cognizable and
meritorious is payable whether or not the claimant was negligent.
Sec. 536.129 Claims cognizable as UCMJ claims.
Claims cognizable under Article 139, UCMJ, are limited to the
following:
(a) Requirement that conduct constructively violate UCMJ. In order
to subject a person to liability under Article 139, the soldier's
conduct must be such as would constitute a violation of one or more
punitive Articles of the UCMJ. However, a referral of charges is not a
prerequisite to action under this subpart.
(b) Claims for property willfully damaged. Willful damage is damage
[[Page 46295]]
inflicted intentionally, knowingly, and purposefully without
justifiable excuse, as distinguished from damage caused inadvertently,
thoughtlessly or negligently. Damage, loss, or destruction of property
caused by riotous, violent, or disorderly acts or acts of depredation,
or through conduct showing reckless or wanton disregard of the property
rights of others, may be considered willful damage.
(c) Claims for property wrongfully taken. A wrongful taking is any
unauthorized taking or withholding of property, with the intent to
deprive, temporarily or permanently, 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. However, mere breach
of a fiduciary or contractual duty that does not involve larceny,
forgery, embezzlement, fraud, or misappropriation does not constitute
wrongful taking.
(d) Definition of property. Article 139 provides compensation for
loss of or damage to both personal property, whether tangible or
intangible, and real property. Contrast this to the Personnel Claims
Act and chapter 11 of AR 27-20, which provides compensation only for
tangible personal property. Monetary losses may fall into the category
of either tangible property (for example, cash), or intangible property
(for example, an obligation incurred by a claimant to a third party as
a result of fraudulent conduct by a soldier), although recovery for
losses of intangible property may be limited by other provisions of
this part, such as the exclusion of theft of services (see Sec.
536.130(f)) or consequential damages (see Sec. 536.130(g)).
(e) Claims cognizable under more than one statute. Claims
cognizable under other claims statutes may be processed under this
subpart.
Sec. 536.130 Claims not cognizable as UCMJ claims.
Claims not cognizable under Article 139, UCMJ, and this subpart,
include the following:
(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, including claims resulting
from combat activities or noncombat activities, as those terms are
defined in the Glossary of AR 27-20.
(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.
(f) Claims for theft of services, even if such theft constitutes a
violation of Article 134 of the UCMJ.
(g) Claims for indirect, remote, or consequential damages.
(h) Claims by entities in conflict with the United States or whose
interests are hostile to the United States.
Sec. 536.131 Limitations on assessments arising from UCMJ claims.
(a) Limitations on amount. (1) A special court-martial convening
authority (SPCMCA) has authority to approve a pay assessment in an
amount not to exceed $5,000 per claimant per incident and to deny a
claim in any amount. If the Judge Advocate responsible for advising the
SPCMCA decides that the SPCMCA's final action under the provisions of
Rule for Courts-Martial 1107 in a court martial arising out of the same
incident would be compromised, the SPCMCA may forward the Article 139
claim to the general court-martial convening authority (GCMCA) for
action.
(2) A GCMCA, or designee, has authority to approve a pay assessment
in an amount not to exceed $10,000 per claimant per incident and to
deny a claim in any amount.
(i) If the GCMCA or designee determines that a claim exceeding
$10,000 per claimant per incident is meritorious, that officer will
assess the soldier's pay in the amount of $10,000 and forward the claim
to the Commander USARCS, with a recommendation to increase the
assessment.
(ii) If the head of the area claims office (ACO) (usually the
GCMCA's Staff Judge Advocate (SJA)) decides that the GCMCA's final
action under the provisions of Rule for Courts-Martial 1107 in a court-
martial arising out of the same incident would be compromised, that
officer may forward the Article 139 claim to USARCS for action.
(3) Only TJAG, TAJAG, the Commander USARCS, or designee has
authority to approve assessments in excess of $10,000 per claimant per
incident.
(b) Limitations on type of damages. Property loss or damage
assessments are limited to direct damages. This subpart does not
provide redress for indirect, remote, or consequential damages.
Sec. 536.132 Procedure for processing UCMJ claims.
(a) Time limitations on submission of a claim. A claim must be
submitted within 90 days of the incident that gave rise to it, unless
the SPCMCA acting on the claim determines there is good cause for
delay. Lack of knowledge of the existence of Article 139, or lack of
knowledge of the identity of the offender, are examples of good cause
for delay.
(b) Form and presentment of a claim. The claimant or authorized
agent may present a claim orally or in writing. If presented orally,
the claim must be reduced to writing, signed, and seek a definite sum
in U.S. dollars within 10 days after oral presentment.
(c) Action upon receipt of a claim. Any officer receiving a claim
will forward it within two working days to the SPCMCA exercising
jurisdiction over the soldier or soldiers against whom the claim is
made. If the claim is made against soldiers under the jurisdiction of
two or more convening SPCMCAs who are under the same GCMCA, forward the
claim to that GCMCA. That GCMCA 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 GCMCA, forward the
claim to the SPCMCA whose headquarters is located nearest the situs of
the alleged incident. That SPCMCA will investigate and act on the claim
as to all soldiers involved. If a claim is brought against a member of
one of the other military services, forward the claim to the commander
of the nearest major command of that service equivalent to a major Army
command (MACOM).
(d) Action by the special court-martial convening authority. (1) If
the claim appears to be cognizable, the SPCMCA will appoint an
investigating officer within four working days of receipt of a claim.
The investigating officer will follow the procedures of this subpart
supplemented by DA Pam 27-162, chapter 9, and AR 15-6, chapter 4, which
applies to informal investigations. The SPCMCA may appoint the claims
officer of a command (if the claims officer is a commissioned officer)
as the investigating officer. In cases where the special court-martial
convening authority is an inactive duty soldier of the United States
Army Reserve, the appointment of an investigating officer will be made
within 30 calendar days.
(2) If the claim is not brought 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 does not appear otherwise cognizable under
Article 139, UCMJ, the SPCMCA
[[Page 46296]]
may refer it for legal review (see paragraph (g) of this section)
within four working days of receipt. If after legal review the SPCMCA
determines that the claim is not cognizable, final action may be taken
disapproving the claim (see paragraph (h) of this section) without
appointing an investigating officer. In claims where the special court-
martial convening authority is an inactive duty soldier of the United
States Army Reserve, the request for a legal review will be made within
30 calendar days.
(e) Expediting payment through Personnel Claims Act and Foreign
Claims Act procedures. When assessment action on a particular claim
will be unduly delayed, the claims office supporting the SPCMA may
consider the claim under the Personnel Claims Act, 31 U.S.C. 3721, and
chapter 11 of AR 27-20, or under the Foreign Claims Act, 10 U.S.C.
2734, and subpart J of this part, as long as it is otherwise cognizable
under that authority. If the Article 139 claim is later successful, the
claims office will inform the claimant of the obligation to repay to
the government any overpayment received under these statutes.
(f) Action by the investigating officer. The investigating officer
will notify the soldier against whom the claim is made.
(1) If the soldier wishes to make voluntary restitution, the
investigating officer may, with the SPCMCA's concurrence, delay
proceedings until the end of the next pay period to permit restitution.
If the soldier makes payment to the claimant's full satisfaction, the
SPCMCA will dismiss the claim.
(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, UCMJ, and this subpart, and the amount
to be assessed against each offender. This amount will be reduced by
any restitution the claimant accepts from an offender in partial
satisfaction. Within 10 working days, or such time as the SPCMCA may
determine, the investigating officer will submit written findings and
recommendations to the SPCMCA.
(3) If the soldier is absent without leave and cannot be notified,
a claims office may process the Article 139 claim in the soldier's
absence. If an assessment is approved, forward a copy of the claim and
the memorandum authorizing pay assessment by transmittal letter to the
servicing Defense Accounting Office (DAO) for offset against the
soldier's pay. If the soldier is dropped from the rolls, the servicing
DAO will forward the assessment documents to: Commander, Defense
Finance and Accounting Service (DFAS), ATTN: Military Pay Operations,
8899 E. 56th Street, Indianapolis, IN 46249.
(g) Legal review. The SPCMCA will refer the claim for legal review
to its servicing legal office upon either completion of the
investigating officer's report or the SPCMCA's determination that the
claim is not cognizable (see paragraph (d)(2) of this section).
(1) Within five working days or such time as the SPCMCA determines,
that office will furnish a written opinion as to:
(i) Whether the claim is cognizable under the provisions of Article
139, UCMJ, and this subpart.
(ii) Whether the findings and recommendations are supported by a
preponderance of the evidence.
(iii) Whether the investigation substantially complies with the
procedural requirements of Article 139, UCMJ; this subpart; DA Pam 27-
162, chapter 9; and AR 15-6, chapter 4.
(iv) Whether the claim is clearly not cognizable (see paragraph
(d)(2) of this section) and final denial action can be taken without
appointing an investigating officer.
(2) If the investigating officer's recommended assessment does not
exceed $5,000, the claims judge advocate (CJA) or claims attorney will,
upon legal review, forward the claim to the SPCMCA for final action.
(3) If the investigating officer's recommended assessment is more
than $5,000, the CJA or claims attorney will, upon legal review,
forward the claim file to the head of the ACO, who will also conduct a
legal review within five working days.
(i) If the recommended assessment does not exceed $10,000, the head
of the ACO will forward the claim file to the GCMCA for final action.
(ii) If the recommended assessment exceeds $10,000, the head of the
ACO will forward the claim file to the GCMCA for approval of an
assessment up to $10,000 and for a recommendation of an additional
assessment. The head of the ACO will then forward the claims file and
the GCMCA's recommendation to the Commander USARCS for approval.
(h) Final action. After consulting with the legal advisor, the
approval authority will disapprove or approve the claim in an amount
equal to, or less than, the amount of the assessment limitation. The
approval authority is not bound by the findings or recommendations of
the investigating officer; AR 15-6, paragraph 2-3a. The approval
authority will notify the claimant, and any soldier subject to that
officer's jurisdiction, of the determination and the right of any party
to request reconsideration (see Sec. 536.133). A copy of the
investigating officer's findings and recommendation 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 the approval authority determines that this
delay will result in substantial injustice. If after this period the
approval authority determines that an assessment is still warranted,
the approval authority will direct the appropriate DAO to withhold such
amount from the soldier's pay account (see Sec. 536.131(a)). For any
soldier not subject to the approval authority's jurisdiction, the
approval authority will forward the claim to the commander who
exercises SPCMCA jurisdiction over the soldier for assessment. The
receiving SPCMCA is bound by the determination of the approval
authority.
(i) Assessment. Subject to any limitations set forth in appropriate
regulations, the servicing DAO will withhold the amount directed by the
approval authority and pay it to the claimant. The assessment is not
subject to appeal and is binding on any finance officer. If the
servicing DAO cannot withhold the required amount because it does not
have custody of the soldier's pay record, the record is missing, or the
soldier is in a no pay due status, that office will promptly notify the
approval authority of this fact in writing.
(j) Remission of indebtedness. 10 U.S.C. 4837, 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, UCMJ.
Sec. 536.133 Reconsideration of UCMJ claims.
(a) General. Although Article 139, UCMJ, does not provide for a
right of appeal, either the claimant or a soldier whose pay is assessed
may request the approval authority (SPCMCA or GCMCA, depending on the
amount assessed) or successor in command to reconsider the action.
Either party must submit such a request for reconsideration in writing
and clearly state the factual or legal basis for the relief requested.
The approval authority may direct that the matter be reinvestigated.
(b) Reconsideration by the original approval authority. The
original approval authority may reconsider the action at any time while
serving as the approval authority for the claim in
[[Page 46297]]
question, even after the transfer of the soldier whose pay was
assessed. The original approval authority may modify the action if it
was incorrect, subject to paragraph (d) of this section. However, the
approval authority should modify the action only because 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 modify an action only
because 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 approval authority will have the servicing claims office
render a legal opinion and fully explain the basis for modification as
part of the file. If the legal review agrees that a return of the
assessed pay is appropriate, the approval authority should request in
writing that the claimant return the money, setting forth in the letter
the basis for the request. There is no authority for repayment from
appropriated funds.
(e) Disposition of files. After completing action on
reconsideration, the approval authority will forward the
reconsideration action to the servicing claims office, which will then
file the action per Sec. 536.132(h).
Sec. 536.134 Additional claims judge advocate and claims attorney
responsibilities (for UCMJ claims).
In addition to the duties set forth in this subpart, the CJA or
claims attorney is responsible for forwarding copies of completed
Article 139 actions to USARCS, maintaining a log, monitoring the time
requirements of pending Article 139 actions, and publicizing the
Article 139 program to commanders, soldiers, and the community.
Subpart J--Claims Cognizable Under the Foreign Claims Act
Sec. 536.135 Statutory authority for the Foreign Claims Act.
(a) The statutory authority for this subpart is the Act of August
10, 1956, 10 U.S.C. 2734 (70 Stat. 154), commonly referred to as the
Foreign Claims Act (FCA), as amended by Public Law 86-223, September
1959 (73 Stat. 453); Public Law 86-411, April 1960 (74 Stat. 16);
Public Law 90-521, September 1968 (82 Stat. 874); Public Law 91-312,
July 1970 (84 Stat. 412); Public Law 93-336, July 1974 (88 Stat. 292);
Public Law 96-513, Title V, section 511 (95), December 1980 (94 Stat.
2928). It is posted on the USARCS Web site; for the address see Sec.
536.2(a).
(b) Claims arising from the acts or omissions of the U.S. Armed
Forces in the Marshall Islands or the Federated States of Micronesia
are settled in accordance with Art. XV, Non-contractual Claims, of the
U.S.-Marshall Islands and Micronesian Status of Forces Agreement (the
``SOFA'') (posted on the USARCS Web site; for the address see Sec.
536.2(a)). This is pursuant to the ``agreed upon minutes'' that are
appended to the SOFA, pursuant to Section 323 of the Compact of Free
Association between the U.S. and the Marshall Islands and the Federated
States of Micronesia, enacted by Public Law 99-239, January 14, 1986.
(The Compact may be viewed at http://www.fm/jcn/compact/relindex.html).
The ``agreed upon minutes'' state that ``all claims within the scope of
paragraph 1 of Article XV [Claims], [of the Compact] * * * shall be
processed and settled exclusively pursuant to the Foreign Claims Act,
10 U.S.C. 2734, and any regulations promulgated in implementation
thereof.'' Therefore, Title I, Article 178 of the Compact, regarding
claims processing, is not applicable to claims arising from the acts or
omissions of the U.S. armed forces, but only to other federal agencies.
Those agencies are required to follow the provisions of the Federal
Tort Claims Act, 28 U.S.C. 2672.
Sec. 536.136 Scope for claims arising under the Foreign Claims Act.
(a) Application. This subpart, which is applicable outside the
United States, its commonwealths, territories and possessions,
including areas under the jurisdiction of the United States, implements
the FCA and prescribes the substantive basis and special procedural
requirements for settlement of claims of inhabitants of a foreign
country, or of a foreign country or a political subdivision thereof,
against the United States for personal injury, death, or property
damage caused by service members or civilian employees, or claims that
arise incident to noncombat activities of the armed forces.
(b) Effect of Military Claims Act (MCA). Claims arising in foreign
countries will be settled under the MCA if the injured party is an
inhabitant of the U.S., for example, a member of the U.S. armed forces,
a U.S. civilian employee, or a family member of either category. In a
wrongful death case, if the decedent is an inhabitant of a foreign
country, even though his survivors are U.S. inhabitants, the FCA will
apply. See Sec. 536.74(c).
(c) Effect of Army Maritime Claims Settlement Act (AMCSA) (10
U.S.C. 4801, 4802 and 4808). A maritime claim may be settled under the
FCA.
Sec. 536.137 Claims payable under the Foreign Claims Act.
(a) A claim for death, personal injury, or loss of or damage to
property may be allowed under this subpart if the alleged damage
results from noncombat activity or a negligent or wrongful act or
omission of soldiers or civilian employees of the U.S. armed forces, as
enumerated in Sec. 536.23(b), regardless of whether the act or
omission was made within the scope of their employment. This includes
non-U.S. citizen employees recruited elsewhere but employed in a
country of which they are not a citizen. However, a claim generated by
non-U.S. citizen employees in the country in which they were recruited
and are employed will be payable only if the act or omission was made
in the scope of employment. But claims arising from the operation of
U.S. armed forces vehicles or other equipment by such employees 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.
(b) Claims generated by officers or civilian employees of the
American Battle Monuments Commission (36 U.S.C. 2110), acting within
the scope of employment, will be paid from American Battle Monuments
Commission appropriations.
(c) Claims for the loss of, or damage to, property that may be
settled under this subpart include the following:
(1) Real property used and occupied under lease, express, implied,
or otherwise. See Sec. 536.34(m) of this part and paragraph 2-15m of
DA Pam 27-162.
(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. 536.138 Claims not payable under the Foreign Claims Act
A claim is not payable if it:
(a) Results wholly from the negligent or wrongful act of the
claimant or agent;
(b) Is purely contractual in nature;
(c) Arises from private or domestic obligations as distinguished
from government transactions;
(d) Is based solely on compassionate grounds;
(e) Is a bastardy claim for child support expenses;
(f) Is for any item whose acquisition, possession, or
transportation is in
[[Page 46298]]
violation of Department of the Army (DA) or Department of Defense (DOD)
directives, such as illegal war trophies.
(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. See Sec. 536.34(m) of this part
and paragraph 2-15m of DA Pam 27-162.
(h) Is not in the best interest of the United States, is contrary
to public policy, or otherwise contrary to the basic intent of the
governing statute (10 U.S.C. Sec. 2734); for example, claims for
property loss or damage, or personal injury or death caused by
inhabitants of unfriendly foreign countries or by individuals
considered to be unfriendly to the United States.
(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 from filing
a claim for damage, loss, or destruction of personal property within
the federal government's custody if the claim is otherwise payable.
(j) Is for damages or injury, the claim for which a receiving State
should adjudicate and pay pursuant to an international agreement,
subject to waiver by the Commander USARCS. See DA Pam 27-162, paragraph
3-4a(2), for a discussion of the conditions of waiver.
(k) Is listed in Sec. Sec. 536.45 and 536.46, except for the
exclusions listed in Sec. Sec. 536.45(e), (h) and (k). Additionally,
the exclusions set forth in Sec. Sec. 536.45(a) and (b) do not apply
to a claim arising incident to noncombat activities.
(l) Is brought by a subrogee.
(m) Is covered by insurance on the involved U.S. Armed Forces'
vehicle or the tortfeasor's privately owned vehicle (POV), in
accordance with requirements of a foreign country, unless the claim
exceeds the coverage or the insurer is insolvent. See Sec. 536.139(c).
(n) Is payable under subpart C of this part or AR 27-20, chapter
11.
(o) Is brought by or on behalf of a member of a foreign military
force for personal injury or death arising incident to service, or
pursuant to combined military operations. Combined military operations
include exercises and United Nations and North Atlantic Treaty
Organization (NATO) peacekeeping and humanitarian missions. Derivative
claims arising from these incidents are also excluded.
Sec. 536.139 Applicable law for claims under the Foreign Claims Act.
(a) Venue of incident and domicile of claimant. In determining an
appropriate award, apply the law and custom of the country in which the
incident occurred to determine which elements of damages are payable
and which individuals are entitled to compensation. However, where the
claimant is an inhabitant of another foreign country and only
temporarily within the country in which 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. Where
the decedent is the subject of a wrongful death case, the quantum will
be determined based on the country of the decedent's permanent
residence regardless of the fact that his survivors live in the U.S. or
a different foreign country than the decedent. See Sec. 536.77 for
further damages guidance.
(b) Other guidance. The guidance set forth in Sec. Sec. 536.77(b)
through (d) as to allowable elements of damages is generally
applicable. Where moral damages, as defined in DA Pam 27-162, paragraph
2-53c(4), are permitted, such damages are payable. In some countries it
is customary to get a professional appraisal to substantiate certain
claims and pass this cost on to the tortfeasor. The Commander USARCS or
the chief of a command claims service may, as an exception to policy,
permit the reimbursement of such costs in appropriate cases. Where
feasible, claimants should be discouraged from incurring such costs.
(c) Deductions for insurance. (1) Insurance coverage recovered or
recoverable will be deducted from any award. In that regard, every
effort will be made to monitor the insurance aspect of the case and
encourage direct settlement between the claimant and the insurer of the
tortfeasor.
(2) When efforts under paragraph (c)(1) of this section are of no
avail, or when it otherwise is determined that an insurance settlement
will not be reasonably available for application to the award, no award
will be made until the chief of the command claims service or the
Commander USARCS, has first granted consent. 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 an insurance settlement is not available due to the
insurer's insolvency or bankruptcy, a report on the bankruptcy will be
forwarded to the Commander USARCS without delay, setting forth all
pertinent information, including the alleged reasons for the bankruptcy
and the facts concerning the licensing of the insurer.
(d) Deductions for amounts paid by tortfeasor. Settlement
authorities will deduct from the damages any direct payments by a
member or civilian employee of the U.S. armed forces for damages (other
than solatia).
Sec. 536.140 Appointment and functions of Foreign Claims Commissions.
(a) Claims cognizable under this subpart will be referred to the
command responsible for claims arising within its geographic area of
responsibility, including claims transferred by agreement between the
services involved. The senior judge advocate of a command having a
command claims service, or his delegee, will appoint a sufficient
number of Foreign Claims Commissions (FCCs) to dispose of the claims.
If there is no command claims service, the responsible commander may
ask the Commander USARCS for permission to establish one. Otherwise,
the Commander USARCS will appoint a sufficient number of FCCs from
personnel furnished by the command involved. See Sec. 576.3(d) of this
chapter for more information about command claims services.
(b) The Commander USARCS will appoint all other FCCs to act on all
other claims, regardless of where such claims arose, unless they arose
in a country for which single-service responsibility has been assigned
to another service. FCCs appointed by the Commander USARCS at units
based in the continental United States (CONUS) may act on any claim
arising out of such unit's operations. Any FCC operating in, or
adjudicating claims arising out of, a geographical area within a
command claims service's jurisdiction, will comply with that service's
legal and procedural rules.
(c) An FCC may operate as an integral part of a command claims
service, which will determine the cases to be assigned to it, furnish
necessary administrative services, and establish and maintain its
records. Where an FCC does not operate as part of a command claims
service, it may operate as part of the office or a division, corps or
higher command staff judge advocate (SJA), which will perform the
foregoing functions.
(d) An appointing authority who appoints or relieves an FCC whom he
or she has appointed will forward one copy of each order addressing an
FCC's appointment, relief, or change of responsibility to the Commander
[[Page 46299]]
USARCS. Upon receipt of an initial appointing order, the Commander
USARCS will assign an office code number to the FCC. Without such a
number the FCC has no authority to approve or pay claims. See AR 27-20,
paragraph 13-1.
(e) Normally, the FCC is responsible for the investigation of all
claims referred to it, using both the procedures set forth in subpart B
of this part and any local procedures established by the appointing
authority or command claims service responsible for the geographical
area in which the claim arose. Chiefs of a command claims service may
request assistance on claims investigation within their geographical
areas from units or organizations other than the FCC. The Commander
USARCS may make the same request for any claim referred to an FCC
appointed under his or her authority.
(f) When an FCC intends to deny a claim, or offer an award less
than the amount claimed, it will notify in writing the claimant, the
claimant's authorized agent, or legal representative of the intended
action on the claim and the legal and factual bases for that action. If
the FCC proposes a partial award, a settlement agreement should be
enclosed with the notice. Claimants will be advised that they may
either accept the FCC action by returning the signed settlement
agreement or, if dissatisfied with the FCC's action, they may submit a
request for reconsideration stating the factual or legal reasons why
they believe the FCC's proposed action is incorrect. This notice serves
to give the claimant an opportunity to request reconsideration of the
FCC action and state the reasons for the request before final action is
taken on the claim. When the FCC intends to award the amount claimed,
or recommend an award equal to the amount claimed to a higher
authority, this procedure is not necessary. However, a settlement
agreement is required for all awards, full or partial. See Sec.
536.63(a).
(1) This notice should be given at least 30 days before the FCC
takes final action, except on small claims processed pursuant to Sec.
536.33. The notice should be mailed via certified or registered mail to
the claimant. The claimant should be informed that any request for
reconsideration should be addressed to the FCC that took final action,
and that all materials the claimant wishes the FCC to consider should
be included with the request for reconsideration.
(2) An FCC may alter its initial decision based on the claimant's
response or proceed with the intended action. If the claimant's
response raises a general policy issue, the FCC may request an advisory
opinion from the Commander USARCS or the chief of the command claims
service while retaining the claim for final action at its level.
(3) Upon completing of its evaluation of the claimant's response,
the FCC will notify the claimant of its final decision and advise the
claimant that its action is final and conclusive as a matter of law (10
U.S.C. 2735), unless the final decision is a recommendation for payment
above its authority. In that case, the FCC will forward any response
submitted by the claimant along with its claims memorandum of opinion
to the approval authority, and will notify the claimant accordingly.
(4) When an FCC determines that a claim is valued at more than
$50,000 or all claims arising out of a single incident are valued at
more than $100,000, the file will be transferred to the Commander
USARCS for further action; see Sec. 536.143(d)(2). Upon request of the
Commander USARCS, the FCC may negotiate a settlement, the amount of
which exceeds the FCC's authority; however, prior approval by a higher
authority is required.
(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 FCC recommends an award in excess of its monetary authority, the
settlement agreement should indicate that its recommendation is
contingent upon approval by higher authority.
(g) The chief of an overseas command claims service may delegate to
a one-member FCC 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 U.S. forces in the
country in which the claim arose. If, after investigation, it appears
that action by a three-member FCC is appropriate, the one-member FCC
should send the claim to the appropriate three-member FCC with a
complete investigation report, including a discussion of the applicable
local law and a recommendation for disposition.
Sec. 536.141 Composition of Foreign Claims Commissions.
(a) Normally, an FCC will be composed of either one or three
members. Alternate members of three-member FCCs may be appointed when
circumstances require, and may be substituted for regular members on
specific cases by order of the appointing authority. The appointing
orders will clearly designate the president of a three-member FCC. Two
members of a three-member FCC will constitute a quorum, and the FCC's
decision will be determined by majority vote.
(b) Upon approval by the Commander USARCS and the appropriate
authority of another uniformed service, the membership may be composed
of one or more members of another uniformed service. If another service
has single-service responsibility over the foreign country in which the
claim arose, that service is responsible for the claim. If requested,
the Commander USARCS may furnish a JAG officer or claims attorney to be
a member of another service's FCC.
Sec. 536.142 Qualification of members of Foreign Claims Commissions.
Normally, a member of an FCC will be either a commissioned officer
or a claims attorney. At least two members of a three-member FCC must
be JAs or claims attorneys. In exigent circumstances, a qualified non-
lawyer employee of the armed forces may be appointed to an FCC, 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 for such appointment (for example, lack of
legally qualified personnel). The FCC 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
FCC only if approved by the Commander USARCS.
Sec. 536.143 Settlement authority of Foreign Claims Commissions.
(a) In order to determine whether the claim will be considered by a
one-member or three-member FCC, the claimed amount will be converted to
the U.S. dollar equivalent (based on the annual Foreign Currency
Fluctuation Account exchange rate, where applicable). However, the
FCC's jurisdiction to approve is determined by the conversion rate on
the date of final action. Accordingly, if the value of the U.S. dollar
has decreased, the FCC will forward the recommendation to a higher
authority, if necessary.
(b) Payment will be made in the currency of the country in which
the incident occurred or in which the claimant resided at the time of
the incident, unless the claimant requests payment in U.S. dollars or
another currency and such request is approved by the chief of a command
claims service or the Commander USARCS.
[[Page 46300]]
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 without the approval of the Commander USARCS.
(c) A one-member FCC may consider and pay claims presented in any
amount provided a mutually agreed settlement may be reached in an
amount not exceeding the FCC's monetary authority. A one-member FCC may
deny any claim when the claimed amount does not exceed its monetary
authority. Unless otherwise restricted by the appointing authority, a
one-member FCC who is a JA or claims attorney has $15,000 monetary
authority, while any other one-member commission has $5,000 monetary
authority.
(d) A three-member FCC, unless otherwise restricted by the
appointing authority, may take the following actions on a claim that is
properly before it:
(1) Disapprove a claim presented in any amount. After following the
procedures in Sec. 536.140, including reconsideration, the disapproval
is final and conclusive under 10 U.S.C. 2735. The FCC will inform the
appointing authority of its action. After it takes final action and
disapproves a claim presented in any amount over $50,000, the FCC will
forward to the appointing authority the written notice to the claimant
required by Sec. 536.140(f), any response from the claimant, and its
notice of final action on the claim.
(2) Approve and pay meritorious claims presented in any amount. (i)
Claims paid in full or in part for an amount not exceeding $50,000 will
be paid after any reconsideration as set forth in Sec. 536.140. This
action is final and conclusive under 10 U.S.C. 2735.
(ii) Claims valued at an amount exceeding $50,000, or multiple
claims arising from the same incident valued at more than $100,000,
will be forwarded through the appointing authority with a memorandum of
opinion to the Commander USARCS for action; see DA Pam 27-162,
paragraph 2-60. The memorandum of opinion will discuss the amount for
which the claimant will settle and include the recommendation of the
FCC.
(e) The Judge Advocate General (TJAG), The Assistant Judge Advocate
General (TAJAG) and the Commander USARCS, or his or her designee
serving at USARCS, may approve and pay, in whole or in part, any claim
as long as the amount of the award does not exceed $100,000; may
disapprove any claim, regardless of either the amount claimed or the
recommendation of the FCC forwarding the claim; or, if a claim is
forwarded to USARCS for approval of payment in excess of $50,000, refer
the claim back to the FCC or another FCC for further action.
(f) Payments in excess of $100,000 will be approved by the
Secretary of the Army, the Army General Counsel as the Secretary's
designee, or other designee of the Secretary.
(g) Following approval where required and receipt of an agreement
by the claimant accepting the specific sum awarded by the FCC, 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 Financial Management Service, Department
of Treasury, with the documents listed in DA Pam 27-162, paragraph 2-
81.
(h) If the settlement authority upholds a final offer or authorizes
an award on appeal from a denial of a claim, the notice of the
settlement authority's action will inform the claimant that he or she
must accept the award within 180 days of the date of mailing of the
notice of the settlement authority's action or the award will be
withdrawn, the claim will be deemed denied, and the file will be closed
without future recourse.
Sec. 536.144 Reopening a claim after final action by a Foreign Claims
Commission.
(a) Original approval or settlement authority (including TAJAG,
TJAG, Secretary of the Army, or the Secretary's designees). (1) An
original settlement authority may reconsider the denial of, or final
offer on a claim brought under the FCA upon request of the claimant or
the claimants authorized agent. In the absence of such a request, the
settlement authority may reconsider a claim on its own initiative.
(2) An original approval or settlement authority may reopen and
correct action on an FCA claim previously settled in whole or in part
(even if a settlement agreement has been executed) when it appears that
the original action was incorrect in law or fact based on the evidence
of record at the time of the action or subsequently received. For
errors in fact, the new evidence must not have been discoverable at the
time of final action by either the Army or the claimant through the
exercise of reasonable diligence. Corrective action may also be taken
when an error contrary to the parties' mutual understanding is
discovered in the original action. If it is determined that the
original action was incorrect, the action will be modified, and if
appropriate, a supplemental payment made. The basis for a change in
action will be stated in a memorandum included in the file. For
example, a claim was 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. A settlement authority who has reason to believe that a
settlement was obtained by fraud on the part of the claimant or the
claimant's legal representative, will reopen action on that claim and,
if the belief is substantiated, correct the action. The basis for
correcting an action will be stated in a memorandum and included in the
file.
(b) A successor approval or settlement authority (including TAJAG,
TJAG, Secretary of the Army, or the Secretary's designees). (1)
Reconsideration. A successor approval or settlement authority may
reconsider the denial of, or final offer on, an FCA claim upon request
of the claimant or the claimant's authorized agent 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 that
was previously settled in whole or in part for the same reasons that an
original authority may do so.
(c) Time requirement for filing request for reconsideration.
Requests postmarked more than five years from the date of mailing of
final notice will be denied based on the doctrine of laches.
(d) Finality of action. Action by the appropriate authority (either
affirming the prior action or granting full or partial relief) is final
under the provisions of 10 U.S.C. 2735. Action upon request for
reconsideration constitutes final administrative disposition of a
claim. No further requests for reconsideration will be allowed except
on the basis of fraud.
Sec. 536.145 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 some
overseas commands. Solatia payments are known to be a custom in the
Federated States of Micronesia, Japan, Korea, and Thailand. In other
countries, the FCC should consult the command claims service or
Commander USARCS for guidance. Such payments are not to be made from
the claims expenditure allowance. These payments are made from local
operation and maintenance
[[Page 46301]]
funds. This applies even where a command claims service is directed to
administer the command's solatia program. See, for example, United
States Forces Korea Regulation 526-11 regarding solatia amounts and
procedures.
Subpart K--Nonappropriated Fund Claims
Sec. 536.146 Claims against nonappropriated fund employees--
generally.
This subpart sets forth the procedures to follow in the settlement
and payment of claims generated by the acts or omissions of the
employees of nonappropriated fund (NAF) activities. NAF activities
include NAF or Army and Air Force Exchange Service (AAFES) facilities,
post exchanges, bowling centers, officers and noncommissioned officers'
clubs, and other facilities located on land or situated in a building
used by an activity that employs personnel compensated from NAFs.
Sec. 536.147 Claims by NAFI 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 AR
27-20, chapter 11 and will be paid from NAFs in accordance with Sec.
536.152.
Sec. 536.148 Claims generated by the acts or omissions of NAFI
employees.
(a) Processing. Claims arising out of acts or omissions of
employees of NAFI activities will be processed and settled in the
manner specified for similar claims against the United States, except
that payment will be made from NAFs in accordance with AR 215-1
(Morale, Welfare, and Recreation Activities and Nonappropriated Fund
Instrumentalites) and Sec. 536.152 of this part.
(b) Procedural requirements. Procedural requirements of this part's
pertinent subparts, as stated below, will be followed except as
provided in Sec. Sec. 536.151 and 536.152. However, when the
Nonappropriated Fund Instrumentality (NAFI) is protected by a
commercial insurer (for example, flying and parachute activities), the
claim will be referred to the insurer as outlined in Sec. 536.148(d).
See Department of Defense Directive (DODD) 5515.6, dated November 3,
1956, posted on the USARCS Web site (see Sec. 536.2(a)).
(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, E, F, H or J of this part, 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 Status of Forces
Agreements (SOFAs) or in the manner prescribed by subparts C, D, E, F,
H or J of this part, as appropriate.
(b) Reporting and investigation. Such claims will be investigated
in accordance with AR 215-1 and subpart B of this part.
(1) Reporting. Personal injury, death, or property damage resulting
from vehicular collisions, falls, falling objects, assaults, or
accidents of similar nature will be reported immediately to the person
in charge of the NAFI or activity at which it occurred. The report
should be made by the employee who initially received notice of the
incident, even if the individual involved denies sustaining personal
injury or property damage. Upon receipt of the report of the incident,
the person in charge of the NAF activity concerned will transmit the
report to the area claims office (ACO) or claims processing office
(CPO) for investigation.
(2) Investigation. Claims arising out of acts or omissions of
employees of NAF activities will be investigated in the manner set
forth in subpart B of this part. A determination as to whether the
claim is cognizable under this section will be made as soon as
practicable.
(c) Customer complaints. AAFES-generated complaints will be handled
in accordance with Exchange Service Manual 57-2. NAFI-generated
complaints will be handled in accordance with AR 215-1, chapter 3.
Complaints generated by appropriated funds laundry and dry-cleaning
operations will be handled in accordance with AR 210-130, chapter 2.
Complaints generated by refunds of sales proceeds will be handled in
accordance with Exchange Operating Procedures (EOP) 57-2.
(d) Commercial insurance. Certain NAFI activities (such as flying
and parachute activities, and all AAFES concessionaires) may have
private commercial insurance.
(1) A claims investigation under subpart B of this part will not be
conducted except when the claim's estimated value may exceed the
insurance policy limits. In that event, the Commander USARCS, will be
notified immediately and an investigation will be conducted with a view
to determining whether the United States may be liable under subparts
C, D, F, H or J of this part. Otherwise, the ACO or CPO will refer the
claim to the insurer and furnish copies to the USARCS AAO, as required
in AR 27-20, paragraph 2-12. Assistance will be furnished to the
insurer as needed. Copies of any other required investigations may be
furnished to the insurer.
(2) The claim will be reviewed at key intervals to ensure that
progress is being made, negotiations are properly conducted, and the
file is closed. The Commander USARCS will be advised of any problems.
(3) If requested by either the insurer or NAFI officials, the
appropriate claims authority will assist in or conduct negotiations.
(4) Where NAFI vehicles are required to be covered by insurance in
foreign countries, the insurer will process the claim. However, if the
policy coverage limit is exceeded or the insurer is insolvent, the
claim may be processed under subpart G, Sec. Sec. 536.114 through
536.116 (Claims arising overseas) or, if subpart G does not apply,
under subparts C or J of this part. See Sec. 536.139(c) for additional
guidance.
Sec. 536.149 Identification of persons whose actions may generate
liability.
Claims resulting from the acts or omissions of members of the
classes of persons listed below may be processed under this section. An
ACO or a CPO 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 one of the following
categories:
(a) Civilian employees of NAFI activities whose salaries are paid
from NAFs.
(b) Active duty military personnel while performing off-duty part-
time work for which they are compensated from NAFIs, not to include
members who are acting in their capacity as an officer or other
official of the NAFI.
(c) Volunteers serving in an official capacity in furtherance of
the business of the United States, limited to those categories set
forth in DA Pam 27-162, paragraph 2-45d.
Sec. 536.150 Claims payable from appropriated funds.
Claims payable from appropriated funds (APFs) will be processed
under the appropriate subpart. Appropriated fund payable claims include
those resulting from:
(a) Acts or omissions of military personnel while performing
assigned military duties in connection with NAFI activities.
(b) Acts or omissions of civilian employees paid from appropriated
funds in connection with NAFI activities.
[[Page 46302]]
(c) Negligent maintenance of an appropriated funds facility used by
a NAFI activity but for which the Department of Defense or Department
of the Army (DA) command concerned is responsible and has been notified
of the deficiency by the NAF. Where liability is determined to exist
for both a NAFI and an appropriated fund activity, liability will be
apportioned between the two activities.
(d) Temporary use of a NAFI facility by an appropriated fund
activity.
(e) Operation of government owned or rented vehicles on authorized
missions for NAFI activities where the driver is a DA soldier or
civilian employee and is paid from APFs.
Sec. 536.151 Settlement authority for claims generated by acts or
omissions of NAFI employees.
(a) Settlement. Claims cognizable under this section and processed
under subparts C, D, E, G, H or J of this part will be settled by
claims authorities authorized to settle claims under those subparts
subject to the same monetary and denial authority limitations, except
that The Judge Advocate General (TJAG), The Assistant Judge Advocate
General (TAJAG), and the Commander USARCS may settle such claims
without regard to monetary limitations. However, the approval of the
Attorney General or Assistant General Counsel may be required for an
apportioned amount to be paid from APFs when subpart D of this part
procedures are used and the amount to be paid from APFs exceeds
$200,000. Similarly, approval of TAJAG, the Attorney General or the
Assistant General Counsel is required when using procedures under
subparts C, F, H, or J of this part and an apportioned amount to be
paid from APFs exceeds the limits set for the Commander, USARCS.
(b) Finality of settlement. A determination made by a claims
settlement authority on a claim processed under subpart D of this part
is subject to suit. A claim processed under subparts C or F of this
part may be appealed. Claims processed under subparts C, D, E, H, or J
of this part, or AR 27-20, chapter 11 may be reconsidered in accordance
with the sections addressing reconsideration in those subparts (or
paragraphs in the case of Chapter 11).
Sec. 536.152 Payment of claims generated by acts or omissions of NAFI
employees.
(a) The settlement or approval authority will forward the
appropriate payment documents to the office listed in DA Pam 27-162,
paragraph 2-80h, for payment.
(b) Reimbursement to a foreign country of the United States' pro
rata share of a claim paid pursuant to an international agreement will
be made from NAFs.
Sec. 536.153 Claims involving tortfeasors other than nonappropriated
fund employees: NAFI contractors.
AAFES concessionaires and NAFI contractors, such as entertainment
performers or groups, carnival operators, and fireworks displayers are
considered independent contractors and claims arising from their
activities should be disposed of as set forth in DA Pam 27-162,
paragraph 2-15f. If a dispute arises as to the availability of
liability or workers compensation insurance the claims should be
referred to AAFES Dallas (see address in Sec. 536.30(e)(4)) or the
Central Insurance Fund, U.S. Army Community and Family Support Agency
as applicable.
Sec. 536.154 Claims involving tortfeasors other than nonappropriated
fund employees: NAFI risk management program (RIMP) claims.
The risk management program (RIMP) is administered by the U.S. Army
Community and Family Support Center under the provisions of AR 215-1
and AR 608-10 (Family Child Care Provider Claims). Providers in order
to encourage authorized personnel, that is, military and civilian
employees, to use the family child care program and sports equipment,
such claims are processed in a manner similar to NAFI claims in
Sec. Sec. 536.146 through 536.152 of this subpart. Certain claims are
payable from nonappropriated funds even though the U.S. is not liable
under the FTCA or the MCA as the tortfeasor is not an appropriated fund
or nonappropriated fund employee.
Sec. 536.155 Claims payable involving tortfeasors other than
nonappropriated fund employees.
(a) Non-NAFI RIMP claims can arise from the activities of:
(1) Members of NAFIs or authorized users of NAFI sports equipment
or devices for recreational purposes, 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.
(2) Family child care providers, authorized members of the
provider's household and approved substitute providers while care under
the family child care 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 family child care program that are caused by the negligence
of authorized providers. Claims arising from the transportation of such
children in motor vehicles and claims involving loss of or damage to
property are not cognizable.
(b) An ACO or a CPO 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 fall clearly within the
categories listed above. 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
family child care program.
(c) Where liability has been determined to exist for both non-NAFI
RIMP and APF activities, liability will be apportioned between the two
activities.
(d) The total payment for all claims (including derivative claims),
arising as a result of injury to, or death of, any one person is
limited to $500,000 for each incident. Continuous or repeated exposure
to substantially the same or similar harmful activity or conditions is
treated as one incident for purposes of determining the limits of
liability.
Sec. 536.156 Procedures for claims involving tortfeasors other than
nonappropriated fund employees.
(a) Reporting. 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 Army Central Insurance Fund
immediately.
(b) Investigation. ACOs and CPOs are responsible for the
investigation of non-NAFI RIMP claims. Such investigation will be
closely coordinated with program managers responsible for the activity
generating the claim. Close coordination with USARCS is also required,
and USARCS will maintain mirror files containing the investigative
materials of all actual and potential claims.
(c) Payment. Non-NAFI RIMP claims will be transmitted for payment
to: The Army Central Insurance Fund, ATTN: CFSC-FM-I, 4700 King Street,
Alexandria, VA 22302-4406.
(d) Commercial insurance. The provisions of Sec. 536.148(d) also
apply to claims arising under this section, except that in claims
involving family child care providers, a claims investigation will be
conducted regardless of whether commercial insurance exists.
[[Page 46303]]
Sec. 536.157 Settlement/approval authority for claims involving
tortfeasors other than nonappropriated fund employees.
(a) Settlement authority. TJAG, TAJAG, and the Commander USARCS are
authorized to approve in full or in part, or deny a non-NAFI RIMP
claim, regardless of the amount claimed, except where an apportioned
amount to be paid from APFs exceeds their monetary authority and the
action of the Attorney General or Assistant General Counsel is required
as set forth in Sec. 536.151(a).
(b) Approval authority. (1) The staff judge advocate, Commander or
chief of a command claims service, and a head of an area claims office
are authorized to approve in full or in part non-NAFI RIMP claims
presented in the amount of $50,000 or less, provided the acceptance is
in full settlement and all claims and potential claims arising out of a
single incident do not exceed $100,000.
(2) The above authorities are not delegated authority to deny or
make a final offer on a claim under this section. Claims requiring such
action will be forwarded to the Commander USARCS with an appropriate
recommendation.
(c) Finality of settlement. A denial or final offer on a non-NAFI
RIMP claim is final and conclusive and is not subject to
reconsideration or appeal.
[FR Doc. 06-6789 Filed 8-10-06; 8:45 am]
BILLING CODE 3710-08-P