[Title 32 CFR 536]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 32 - NATIONAL DEFENSE]
[Chapter V - DEPARTMENT OF THE ARMY]
[Subchapter B - CLAIMS AND ACCOUNTS]
[Part 536 - CLAIMS AGAINST THE UNITED STATES]
[From the U.S. Government Printing Office]
32NATIONAL DEFENSE32002-07-012002-07-01falseCLAIMS AGAINST THE UNITED STATES536PART 536NATIONAL DEFENSEDEPARTMENT OF THE ARMYCLAIMS AND ACCOUNTS
PART 536--CLAIMS AGAINST THE UNITED STATES--Table of Contents
Subpart A--General Provisions
Sec.
536.1 Purpose and scope.
536.2 Information and assistance.
536.3 Definitions and explanations.
536.4 Treaties and international agreements.
536.5 Claims.
536.6 Determination of liability.
536.7 Incident to service exclusionary rule.
536.8 Use of appraisers and independent medical examinations.
536.9 Effect on award of other payments to claimant.
536.10 Settlement agreement.
536.11 Appeals and notification to claimant as to denial of claims.
536.12 Effect of payment.
536.13 Advance payments.
Subpart B--Claims Arising From Activities of Military or Civilian
Personnel or Incident to Noncombat Activities
536.20 Statutory authority.
536.21 Definitions.
536.22 Scope.
536.23 Claims payable.
536.24 Claims not payable.
536.25 Claims also cognizable under other statutes.
536.26 Presentation of claims.
536.27 Procedures.
536.28 Law applicable.
536.29 Compensation for property damage, personal injury, or death.
536.30 Structured settlements.
536.31 Claims over $100,000.
536.32 Settlement procedures.
536.33 Attorney fees.
536.34 Payment of costs, settlements, and judgments related to certain
medical and legal malpractice claims.
536.40 Claims under Article 139, Uniform Code of Military Justice.
536.50 Claims based on negligence of military personnel or civilian
employees under the Federal Tort Claims Act.
536.60 Maritime claims.
Subpart C--Claims Arising From Activities of National Guard Personnel
While Engaged in Duty or Training
536.70 Statutory authority.
536.71 Definitions.
536.72 Scope.
536.73 Claims payable.
536.74 Claims not payable.
536.75 Notification of incident.
536.76 Claims in which there is a State source of recovery.
536.77 Claims against the ARNG tortfeasor individually.
536.78 When claim must be presented.
536.79 Where claim must be presented.
536.80 Procedures.
536.81 Settlement agreement.
Subpart D--Claims Incident to Use of Government Vehicles and Other
Property of the United States Not Cognizable Under Other Law
536.90 Statutory authority.
536.91 Scope.
536.92 Claims payable.
536.93 Claims not payable.
536.94 When claim must be presented.
536.95 Procedures.
536.96 Settlement agreement.
536.97 Reconsideration.
Authority: 10 U.S.C. 939, 2733, 2734, 2734a, 2736, 2737, 3012, 4801
through 4804, and 4806; 28 U.S.C. 1346(b), 2401(b), 2402, 2671 through
2680; and 32 U.S.C. 715.
Source: 54 FR 43892, Oct. 27, 1989, unless otherwise noted.
Subpart A--General Provisions
Sec. 536.1 Purpose and scope.
(a) Purpose. Part 536 prescribes policies and procedures to be
followed in the filing, investigation, processing and administrative
settlement of Department of Army (DA) generated noncontractual claims.
Sections 536.1 through 536.13 contain general instructions and guidance
for the investigation and processing of claims and apply to all claims
unless other laws or regulations specify other procedures. They are
intended to ensure that incidents that may result in claims are promptly
and efficiently investigated under supervision adequate to ensure a
sound basis for official action and that all claims resulting from such
incidents are expeditiously settled. The Secretary of the Army has
delegated authority to The Judge Advocate General
[[Page 237]]
(TJAG) to assign areas of responsibility and designate functional
responsibility for claims purposes. TJAG has delegated authority to the
Commander, U.S. Army Claims Service (USARCS) to carry out these
responsibilities. USARCS is the agency through which the Secretary of
the Army and TJAG discharge their responsibilities for claims
administration. The proper mailing address of USARCS is Commander, U.S.
Army Claims Service, Office of The Judge Advocate General, Fort George
G. Meade, Maryland 20755-5360.
(b) Scope--(1) Applicability. (i) Sections 536.20 through 536.35
apply in the settlement of claims under the Military Claims Act (MCA)
(10 U.S.C. 2733) for personal injury, death or property damage that was
either caused by members or employees of the DA acting within the scope
of their employment or otherwise incident to noncombat activities of the
DA.
(ii) Section 536.40 sets forth the procedures to be followed and the
standards to be applied in the processing of claims cognizable under
Article 139, Uniform Code of Military Justice (UCMJ) (10 U.S.C. 939) for
property willfully damaged or wrongfully taken or withheld by members of
the DA.
(iii) Section 536.50 governs the administrative settlement of claims
under the Federal Tort Claims Act (FTCA) (28 U.S.C. 1346(b), 2671-2680)
for personal injury, death or property damage caused by the negligent
act or omissions of members or employees of the DA while acting within
the scope of their employment.
(iv) Section 536.60 provides the procedures to be followed in the
settlement of claims under the Army Maritime Claims Settlement Act (10
U.S.C. 4801-4804, 4806) for damage caused by a vessel of or in the
service of the Army.
(v) Sections 536.70 through 536.81 provide instructions for
settlement of claims under the National Guard Claims Act (NGCA) (32
U.S.C. 715) for personal injury, death or property damage that was
either caused by a member or employee of the Army National Guard (ARNG)
while in training or duty under Federal law, and acting within the scope
of their employment; or otherwise incident to noncombat activities of
the ARNG not in active Federal service.
(vi) Sections 536.90 through 536.97 provide instructions for
settlement of claims under 10 U.S.C. 2737 for personal injury, death or
property damage (not cognizable under any other law) incident to the use
of Government property by members or employees of the DA.
(2) Nonappropriated fund activities. Claims arising from acts or
omissions of employees of nonappropriated fund activities within the
United States, its Territories, and possessions, are processed in the
manner prescribed by applicable regulations. In oversea areas, such
claims will be processed in accordance with treaties or agreements
between the United States and foreign countries with respect to the
settlement of claims arising from acts or omissions of military and
civilian personnel of the United States in such countries, or in
accordance with applicable regulations as appropriate.
(3) Nonapplicability. Sections 536.1 through 536.13 do not apply to:
(i) Contractual claims which are under the provisions of Public Law
85-804, 28 August 1958 (72 Stat. 972) and AR 37-103, AR 37-103 and other
Army Regulations referenced herein are available thru: National
Technical Information Services, U.S. Department of Commerce, 5285 Port
Royal Road, Springfield, VA 22161, or other regulations including
acquisition regulations.
(ii) Maritime claims (Sec. 536.60).
Sec. 536.2 Information and assistance.
(a) Government personnel may not represent any claimant or receive
any payment or gratuity for services rendered. They may not accept any
share or interest in a claim or assist in its presentation, under
penalty of Federal criminal law (18 U.S.C. 203, 205). They are
prohibited from disclosing information which may be the basis of a
claim, or any evidence of record in any claims matter, except as
prescribed in Secs. 518.1 through 518.4 of this chapter or other
pertinent regulations. A person lacking authority to approve or
disapprove a claim may not advise a claimant or his representative as to
the disposition recommended.
[[Page 238]]
(b) The prohibitions against furnishing information and assistance
do not apply to the performance of official duty. Any person who
indicates a desire to file a claim against the United States will be
instructed concerning the procedure to follow. He will be furnished
claim forms, and, when necessary, will be assisted in completing the
forms and assembling evidence. He will not be assisted in determining
what amount to claim. In the vicinity of a field exercise, maneuver, or
disaster, information may be disseminated concerning the right to
present claims, the procedure to be followed, and the names and
locations of claims officers, and engineer repair teams. When the
government of a foreign country in which the U.S. Armed Forces are
stationed has assumed responsibility for the settlement of certain
claims against the United States, officials of that country will be
furnished pertinent information and evidence so far as security
considerations permit.
Sec. 536.3 Definitions and explanations.
The following terms as used in Secs. 536.1 through 536.13 and the
matters referred to in Sec. 536.1(b) will have the meanings here
indicated:
(a) Affirmative Claims. The government's statutory right to recover
money, property, or repayment in kind incurred as a result of property
loss, damage, or destruction by any individual, partnership, association
or other legal entity, foreign or domestic, except an instrumentality of
the United States. Also, the Government's statutory right to recover the
reasonable medical costs expended for hospital, medical, surgical, or
dental care and treatment (including prostheses and medical appliances)
incurred under circumstances creating tort liability upon some third
person.
(b) Civilian Employees. Civilian employee means a person whose
activities the Government has the right to direct and control, not only
as to the result to be accomplished but also as to the means used; this
includes, but is not limited to, full-time Federal civilian officers and
employees. The term should be distinguished from the term ``independent
contractor'' for whose actions the Government generally is not liable.
The determination of who is a civilian employee is a Federal question
determined under Federal law and not under local law.
(c) Claim. A demand for payment of a specified sum of money (other
than the ordinary obligations incurred for services, supplies or
equipment) and, unless otherwise specified in this regulation, in
writing and signed by the claimant or a properly designated
representative.
(d) Claim file. The claim, report of the claims officer or other
report of investigation, supporting documentation, and pertinent
correspondence.
(e) Claim approval authority. Except for claims under 10 U.S.C. 939,
31 U.S.C. 3721, and treaties or international agreements such as the
North Atlantic Treaty Organization (NATO), Status of Forces Agreement
(SOFA), and subject to any limitations found in specific provisions of
these regulations, the authority to approve and pay a claim in the
amount presented or in a lesser amount upon the execution of a
settlement agreement by the claimant. A person with approval authority
may not disapprove a claim in its entirety nor make a final offer,
subject to any limitations found in specific provisions of this
regulation.
(f) Claim settlement authority. The authority to approve a claim, to
deny a claim in its entirety, or to make a final offer subject to any
limitations found in specific provisions of this regulation.
(g) Claims attorney. DA or DOD civilian attorney assigned to a judge
advocate or legal office, who has been designated by the Commander,
USARCS.
(h) Claims judge advocate. An officer of the Judge Advocate
General's Corps designated by a command or staff judge advocate (SJA) to
be in immediate charge of claims activities of the command.
(i) Claims Officer. A commissioned officer, warrant officer, or
qualified civilian employee detailed by the commander of an installation
or unit who is trained or experienced in the investigation of claims.
(j) Claimant. An individual, partnership, association, corporation,
country,
[[Page 239]]
state, territory, or other political subdivision of such country; does
not include the U.S. Government or any of its instrumentalities, except
as prescribed by statute. Indian tribes are not proper party claimants
but individual Indians can be claimants.
(k) Combat activities. Activities resulting directly or indirectly
from action by the enemy, or by U.S. Armed Forces engaged in, or in
immediate preparation for, impending armed conflict.
(l) Disaster. A sudden and extraordinary calamity occasioned by
activities of the Army, other than combat, resulting in extensive
civilian property damage or personal injuries and creating a large
number of potential claims.
(m) Federal agency. A federal agency includes the executive
departments and independent establishments of the United States and
corporations acting as instrumentalities or agencies of the United
States but does not include any contractor with the United States.
(n) Final offer. An offer of payment by a settlement authority in
full and final settlement of a claim which, if not accepted, constitutes
a final action for purposes of filing suit under Sec. 536.50 or filing
an appeal under Secs. 536.20 through 536.35 and 536.70 through 536.81,
provided such offer is made in writing and meets the other requirements
of a final action as set forth in this regulation.
(o) Government vehicle. A vehicle owned or on loan to any agency of
the Government of the United States or privately owned, and operated by
members or civilian employees of the DA in the scope of their office or
employment with the Government of the United States including vehicles
being operated on joint operations of the U.S. Armed Forces.
(p) Medical claims judge advocate. A judge advocate (JA) assigned to
an Army Medical Center, under an agreement between TJAG and The Surgeon
General, to perform the primary duty of investigating and processing
medical malpractice claims.
(q) Medical claims investigator. A senior legal specialist or
qualified civilian assigned to assist a medical claims JA on a full-time
basis. A medical claims investigator is authorized to administer oaths
under the provisions of Article 136(b)(6), UCMJ, 10 U.S.C. 936(b)(6)
when performing investigative duties.
(r) Medical malpractice claim. A claim arising out of substandard or
inadequate care of an Army patient.
(s) Military personnel. Military personnel means members of the DA
on active duty for training, or inactive duty training as defined in AR
310-25 and 10 U.S.C. 101(22), 101(23), and 101(30). This includes
members of the District of Columbia ARNG while performing active duty or
training under 32 U.S.C. 316, 502, 503, 504 or 505.
(t) Noncombat activities. A noncombat activity arises from
authorized activities essentially military in nature, having little
parallel in civilian pursuits and which historically have been
considered as furnishing a proper basis for payment of claims, such as
practice firing of missiles and weapons, training and field exercises,
and maneuvers, including, in connection therewith, the operation of
aircraft and vehicles, and use and occupancy of real estate, and
movement of combat or other vehicles designed especially for military
use. Activities incident to combat, whether in time of war or not, and
use of military personnel and civilian employees in connection with
civil disturbances, are excluded.
(u) Personal property. Property consisting solely of corporeal
personal property, that is, tangible things. Personal property does not
consist of the loss or forfeiture of a security deposit or a contingent
financial benefit.
Sec. 536.4 Treaties and international agreements.
(a) The governments of some foreign countries have by treaty or
agreement waived or assumed, or may hereafter waive or assume, certain
claims against the United States. In such instances claims will not be
settled under laws or regulations of the United States.
(b) The prohibition stated in paragraph (a) of this section is not
applicable to claims within the purview of Article VIII of the Agreement
Regarding the Status of Forces of Parties to the North Atlantic Treaty
or similar type
[[Page 240]]
agreements which normally will be investigated and settled as therein
provided.
Sec. 536.5 Claims.
(a) Who may present. (1) A claim may be presented by the owner of
the property, or in his name by a duly authorized agent or legal
representative. As used in this regulation an owner includes the
following:
(i) For real property. The mortgagor, or the mortgagee, if he or she
can maintain a cause of action in the local courts involving a tort to
that specific property. When notice of divided interests in real
property is received, the claim should, if feasible, be treated as a
single claim or a release from all interests must be obtained.
(ii) For personal property. A bailee, leasee, mortgagee, and
conditional vendor, or others having title for purposes of security
only, are not proper claimants unless specifically authorized by the
statute and implementing regulations in question. If more than one party
has a real interest in the property, all must join in the claim or a
release from all interests must be obtained.
(2) A claim for personal injury may be presented by the injured
person or duly authorized agent or legal representative.
(3) A claim based on death may be presented by the executor or
administrator of the deceased's estate, or by any person determined to
be legally or beneficially entitled. The amount allowed will, to the
extent practicable, be apportioned among the beneficiaries in accordance
with the law applicable to the incident.
(4) A claim for medical, hospital, or burial expenses may be
presented by any person who by reason of family relationship has in fact
incurred the expenses for which the claim is made. However, for claims
cognizable under the provisions of the FTCA, see Sec. 536.50, and for
claims cognizable under the provisions of the Nonscope of Employment
Claims Act, see Secs. 536.90 through 536.97.
(5) A claim presented by an agent or legal representative will be
made in the name of the claimant and signed by the agent or legal
representative showing the title or capacity. Written evidence of the
authority of such person to act is mandatory except when controlling law
does not require such evidence.
(6) A claim normally will include all damages that accrue by reason
of the incident. Where the same claimant has a claim for damage to or
loss of property and a claim for personal injury or a claim based on
death arising out of the same incident, each of the foregoing or any
combination of them ordinarily represent only an integral part or parts
of a single claim or cause of action. Under Secs. 536.20 through 536.35
and the Foreign Claims Act (FCA) (10 U.S.C. 2734), a single claimant is
entitled to be compensated only one time for all damages or injuries
arising out of an incident.
(b) Subrogation. A claim may be presented by a subrogee in his own
name if authorized by the law of the place where the incident giving
rise to the claim occurred, provided subrogation is not barred by the
regulation applicable to the type of claim involved.
(1) The claims of the subrogor (insured) and subrogee (insurer) for
damages arising out of the same incident constitute separate claims, and
it is permissible for the aggregate of such claims to exceed the
monetary jurisdiction of the approving or settlement authority.
(2) A subrogor and a subrogee may file a claim jointly or
individually. A fully subrogated claim will be paid only to the
subrogee. Whether a claim is fully subrogated is a matter to be
determined by local law. Some jurisdictions permit the property owner to
file for property damage even though the owner has been compensated for
the repairs by an insurer. In such instances a release should be
obtained from both parties in interest or be released by both of them.
The approved payment in a joint claim will be by joint check which will
be sent to the subrogee unless both parties specify otherwise. If
separate claims are filed, payment will be by check issued to each
claimant to the extent of his undisputed interest.
(3) Where a claimant has made an election and accepted workmen's
compensation benefits, both statutory and case law of the jurisdiction
should be
[[Page 241]]
scrutinized to determine to what extent the claim of the injured party
against third parties has been extinguished by acceptance of
compensation benefits. While it is infrequent that the claim is fully
extinguished, it is true in some jurisdictions, and the only proper
party claimant is the workmen's compensation carrier. Even where the
injured party's claim has not been fully extinguished, most
jurisdictions provide that the compensation insurance carrier has a lien
on any recovery from the third party, and no settlement should be
reached without approval by the carrier where required by local law.
Additionally, claims from the workmen's compensation carrier as subrogee
or otherwise will not be considered payable where the United States has
paid the premiums, directly or indirectly, for the workmen's
compensation insurance. Applicable contract provisions holding the
United States harmless should be utilized.
(4) Whether medical payments paid by an insurer to its insured can
be subrogated depends on local law. Some jurisdictions prohibit these
claims to be submitted by the insurer notwithstanding a contractual
provision providing for subrogation. Therefore, local law should be
researched prior to deciding the issue, and claims forwarded to higher
headquarters for adjudication should contain the results of said
research. Such claims, where prohibited by state law, will also be
barred by the Antiassignment Act.
(5) Care will be exercised to require insurance disclosure
consistent with the type of incident generating the claim. Every
claimant will, as a part of his claim, make a written disclosure
concerning insurance coverage as to:
(i) The name and address of every insurer;
(ii) The kind and amount of insurance;
(iii) Policy number;
(iv) Whether a claim has been or will be presented to an insurer,
and, if so, the amount of such claims; and
(v) Whether the insurer has paid the claim in whole or in part, or
has indicated payment will be made.
(6) Each subrogee must substantiate his interest or right to file a
claim by appropriate documentary evidence and should support the claim
as to liability and measure of damages in the same manner as required of
any other claimant. Documentary evidence of payment to a subrogor does
not constitute evidence either of liability of the Government or of the
amount of damages. Approving and settlement authorities will make
independent determinations upon the evidence of record and the law.
(7) Subrogated claims are not cognizable under Secs. 536.90 through
536.97 and the FCA (10 U.S.C. 2734).
(c) Transfer and assignments. (1) Except as they occur by operation
of law or after a voucher for the payment has been issued, unless within
the exceptions set forth by statute (see 31 U.S.C. 3727 and AR 37-107),
the following are null and void--
(i) Every purported transfer or assignment of a claim against the
United States, or of any part of or interest in a claim, whether
absolute or conditional.
(ii) Every power of attorney or other purported authority to receive
payment of all or part of any such claim.
(2) The purposes of the Antiassignment Act are to eliminate multiple
payment of claims, to cause the United States to deal only with original
parties, and to prevent persons of influence from purchasing claims
against the United States.
(3) In general, this statute prohibits voluntary assignments of
claims with the exception of transfers or assignments made by operation
of law. The operation of law exception has been held to apply to claims
passing to assignees because of bankruptcy proceedings, assignments for
the benefit of creditors, corporate liquidations, consolidations or
reorganizations, and where title passes by operation of law to heirs or
legatees. Subrogated claims which arise under a statute are not barred
by the Antiassignment Act. For example, subrogated worker's compensation
claims are cognizable when presented by the insurer.
(4) Subrogated claims which arise pursuant to contractual provisions
may be paid to the subrogee if the subrogated claim is recognized by
state statute or decision. For example, an insurer under an automobile
insurance
[[Page 242]]
policy becomes subrogated to the rights of a claimant upon payment of a
property damage claim. Generally, such subrogated claims are authorized
by state law and are therefore not barred by the Antiassignment Act.
(5) Before claims are paid, it is necessary to determine whether
there may be a valid subrogated claim under Federal or State statute or
subrogation contract held valid by State law. If there may be a valid
subrogated claim forthcoming, payment should be withheld for this
portion of the claim. If it is determined that claimant is the only
proper party, full settlement is authorized.
(d) Action by claimant--(1) Form of claim. The claimant will submit
his claim using authorized official forms whenever practicable. A claim
is filed only when the elements indicated in Sec. 536.3(c) have been
supplied in writing by a person authorized to present a claim, unless
the claim is cognizable under a regulation that specifies otherwise. A
claim may be amended by the claimant at any time prior to final agency
action or prior to the exercise of the claimant's option under 28 U.S.C.
2675(a).
(2) Signatures. (i) The claim and all other papers will be signed in
ink by the claimant or by his duly authorized agent. Such signature will
include the first name, middle initial, and surname. A married woman
must sign her claim in her given name, for example, ``Mary A. Doe,''
rather than ``Mrs. John Doe.''
(ii) Where the claimant is represented, the supporting evidence
required by paragraph (a)(5) of this section will be required only if
the claim is signed by the agent or legal representative. However, in
all cases in which a claimant is represented, the name and address of
the representative will be included in the file together with copies of
all correspondence and records of conversations and other contacts
maintained and included in the file. Frequently, these records are
determinative as to whether the statute of limitations has been tolled.
(3) Presentation. The claim should be presented to the commanding
officer of the unit involved, or to the legal office of the nearest Army
post, camp, or station, or other military establishment convenient to
the claimant. In a foreign country where no appropriate commander is
stationed, the claim should be submitted to any attache of the U.S.
Armed Forces. Claims cognizable under Article VIII of the Agreement
Regarding the Status of Forces of Parties to the North Atlantic Treaty,
Article XVIII of the Treaty of Mutual Cooperation and Security between
the United States and Japan regarding facilities and areas and the
Status of United States Armed Forces in Japan (Japan SOFA) or other
similar treaty or agreement are filed with designated claims officials
of the receiving State.
(e) Evidence to be submitted by claimant. The claimant should submit
the evidence necessary to substantiate his claim. It is essential that
independent evidence be submitted which will substantiate the
correctness of the amount claimed.
(f) Statute of limitations--(1) General. Each statute available to
the Department of the Army for the administrative settlement of claims,
except the Maritime Claims Settlement Act (10 U.S.C. 4802), specifies
the time during which the right to file a claim must be exercised. These
statutes of limitations, which are jurisdictional in nature, are not
subject to waiver unless the statute expressly provides for waiver.
Specific information concerning the period for filing under each statute
is contained in the appropriate implementing sections of this
regulation.
(2) When a claim accrues. A claim accrues on the date on which the
alleged wrongful act or omission results in an actionable injury or
damage to the claimant or his decedent. Exceptions to this general rule
may exist where the claimant does not know the cause of injury or death;
that is, the claim accrues when the injured party, or someone acting on
his or her behalf, knows both the existence and the cause of his or her
injury. However, this exception does not apply when, at a later time, he
or she discovers that the acts inflicting the injury may constitute
medical malpractice. (See United States v. Kubrick, 444 U.S. 111, 100 S.
Ct. 352 (1979).) The discovery rule is not limited to medical
malpractice claims; it has been applied to diverse situations
[[Page 243]]
involving violent death, chemical and atomic testing, and erosion and
hazardous work environment. In claims for indemnity or contribution
against the United States, the accrual date is the time of the payment
for which indemnity is sought or on which contribution is based.
(3) Effect of infancy, incompetency or the filing of suit. The
statute of limitations for administrative claims is not tolled by
infancy or incompetency. Likewise, the statute of limitations is not
tolled for purposes of filing an administrative claim by the filing of a
suit based upon the same incident in a Federal, State, or local court
against the United States or other parties.
(4) Amendment of Claims. A claim may be amended by the claimant at
any time prior to final agency action or prior to the exercise of the
claimant's option under 28 U.S.C. 2675(a). A claim may be amended by
changing the amount, the bases of liability, or elements of damages
concerning the same incident. Parties may be added only if the
additional party could have filed a joint claim initially. If the
additional party had a separate cause of action, his claim may not be
treated as an amendment but only as a separate claim and is thus barred
if the statute of limitations has run. For example, if a claim is timely
filed on behalf of a minor for personal injuries, a subsequent claim by
a parent for loss of services is considered a separate claim and is
barred if it is not filed prior to the running of the statute of
limitations. Another example is where a separate claim is filed for loss
of services or consortium by a spouse arising out of injuries to the
husband or wife of the claimant. On the other hand, if a claim is timely
filed by an insured for the deductible portion of the property damage, a
subsequent claim by the insurer based on payment of property damage to
its insured may be filed as an amendment even though the statute of
limitations has run, unless final action has been taken on the insured's
claim.
(5) Date of receipt stops the running of the statute. In computing
the time to determine whether the period of limitations has expired,
exclude the first day and include the last day, except when it falls on
a nonworkday such as Saturday, Sunday, or a legal holiday, in which case
it is to be extended to the next workday.
(g) By the command concerned--(1) General. If the claim is of a type
and amount within the jurisdiction of the claims office of the command
concerned and the claim is meritorious in the amount claimed, it will be
approved and paid. If a claim in an amount in excess of the monetary
jurisdiction of the claims office is meritorious in a lesser amount
within its jurisdiction, the claim may be approved for payment provided
the amount offered is accepted by the claimant in settlement of the
claim. If the claim is not of a type within the jurisdiction of the
claims office, or if the claimant will not accept an amount within its
jurisdiction, the claim with supporting papers and a recommendation for
appropriate action will be forwarded to the next higher claims
authority. If the claim is determined to be not meritorious, it will be
disapproved provided the claims office has settlement authority for
claims of the type and amount involved. Prior to the disapproval of a
claim under a particular statute, a careful review should be made to
ensure that the claim is not properly payable under a different statute
or on another basis.
(2) Claims within settlement authority of USARCS or the Attorney
General. A copy of each of the following types of claims will be
forwarded immediately to the Commander, USARCS:
(i) One that appears to be of a type that must be brought to the
attention of the Attorney General in accordance with his or her
regulations;
(ii) One in which the demand exceeds $15,000; or
(iii) One which is a claim under the FTCA (Sec. 536.50) where the
total of all claims, arising from a single incident, actual or
potential, exceeds $25,000. USARCS is responsible for the monitoring and
settlement of such claims and will be kept informed on the status of the
investigation and processing thereof. Direct liaison and correspondence
between the USARCS and the field claims authority or investigator is
authorized on all claims matters,
[[Page 244]]
and assistance will be furnished as required. The field claims office
will provide USARCS duplicates of all documentation as it is added to
the field file. This will include all correspondence, memoranda, medical
reports, reports, evaluations, and any other material relevant to the
investigation and processing of the claim.
(3) Claims involving privately owned vehicles. In areas where the
FTCA (Sec. 536.50) is applicable, any claim except those under 31 U.S.C.
3721, arising out of an accident involving a privately owned vehicle
driven by a member of the DA, or by ARNG personnel as defined in
Sec. 536.71, based on an allegation that the privately owned vehicle
travel was within the scope of employment, should be forwarded without
adjudication directly to the Commander, USARCS. Additional information
is provided in Secs. 536.20 through 536.35, 536.90 through 536.97.
(4) Claims within the exclusive jurisdiction of USARCS. Authority to
settle the following claims has been delegated to the Commander, USARCS,
only:
(i) Claims of under Article VIII of the Agreement Regarding the
Status of Forces Parties to the North Atlantic Treaty and other treaties
or international agreements where the United States is the Receiving
State;
(ii) Claims under Sec. 536.60 (Maritime claims not arising out of
civil works activities) except as delegated to overseas command claims
services;
(iii) Industrial security claims, DoD Directive 5220.6, 12 August
1985; and
(iv) Claims of the U.S. Postal Service. Files of these claims will
be forwarded directly to the Commander, USARCS, with the report of
investigation and supporting papers, including a memorandum of opinion.
(5) Maritime claims. (i) A copy of a claim arising out of damage,
loss, injury, or death which originates on navigable waters and is not
considered cognizable under the Army Maritime Claims Settlement Act (10
U.S.C. 4802-4804) will be forwarded immediately to the Commander, USARCS
or appropriate overseas command claims service. A determination will be
made as to whether the claim must be processed under the Suits in
Admiralty Act or the Public Vessels Act or may be considered
administratively.
(ii) If a maritime claim cannot be settled administratively, the
claimant will be advised that he must file a suit.
(iii) If it is determined that both administrative and judicial
remedies are available, the claim may be processed administratively and
the claimant advised of the need to file a suit within 2 years of the
date of occurrence if he chooses his judicial remedy.
(iv) If the claim is for damage to property, or injury to person,
consummated on land, a claimant who makes an oral inquiry or demand will
be advised that no suit can be filed until a period of six months has
expired after a claim in writing is submitted.
(v) If it is determined by the Commander, USARCS, that a claim,
apparently maritime in nature, is not within the maritime jurisdiction,
the claimant will be so advised, and the claim will be returned for
processing under the appropriate section of this regulation.
(h) By district or division engineer. The district or division
engineer area claims office will take the action of an initial claims
authority. Files of unpaid claims should be forwarded directly to
USARCS. An information copy will be sent to the next higher engineer
authority unless such requirement is waived.
(i) By higher settlement authority. A higher claims settlement
authority may take action with respect to a claim in the same manner as
the initial claims office. However, if it is determined that any further
attempt to settle the claim would be unwarranted, the claim will be
forwarded to the Commander, USARCS, with recommendations.
Sec. 536.6 Determination of liability.
(a) In the adjudication of tort claims, the liability of the United
States generally is determined in accordance with the law of the State
or country where the act or omission occurred, except that any conflict
between local law and the applicable United States statute will be
resolved in favor of the latter. However, in claims by inhabitants of
the United States arising in
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foreign countries, liability is determined in accordance with general
principles of tort law common to the majority of American jurisdictions
as evidenced by Federal case law and standard legal publications, except
as it applies to absolute liability. Where liability is not clear or
other issues exist, settlements should truly reflect the uncertainties
in the adjudication of such issues. Compromise settlements are
encouraged provided agreement can be reached that reflects the reduced
value of the damages as measured against the full value or range of
value if such uncertainties or issues did not exist and were it possible
for the claimant to successfully litigate the claim.
(b) Quantum exclusion. The costs of filing a claim and similar
costs, for example, court costs, bail, interest, inconvenience expenses,
or costs of long distance telephone calls or transportation in
connection with the preparation of a claim, are not proper quantum
elements and will not be allowed.
Sec. 536.7 Incident to service exclusionary rule.
(a) General. A claim for personal injury or death of a member of the
Armed Forces of the United States or a civilian employee of the United
States that accrued incident to his service is not payable under this
regulation. A claim for property damage that accrued incident to the
service of a member of the Armed Forces may be payable under 31 U.S.C.
3721 or Secs. 536.20 through 536.35 depending on the facts.
(b) Property damage claims. A claim for damage to or loss of
personal property of a claimant who is within one of the categories of
proper party claimants under 31 U.S.C. 3721, which is otherwise
cognizable under 31 U.S.C. 3721, must first be considered thereunder. If
a claim is not clearly compensable under 31 U.S.C. 3721, and it arises
incident to a noncombat activity of the DA or was caused by a negligent
or wrongful act or omission of military personnel or civilian employees
of the Department of Defense (DOD), it may be cognizable under either
Secs. 536.20 through 536.35 or Sec. 536.50. The claim, if meritorious in
fact, will probably be payable under one authorization or another
regardless of whether the claim accrued incident to the service of the
claimant.
(c) Personal injury and death claims. (1) Only after the death or
personal injury (which is the subject of the claim) has been determined
to have not been incurred incident to the member's service should
Secs. 536.20 through 536.35 and Sec. 536.50 be studied to determine
which, if either, provides a proper basis for settlement of the claim.
In any event, the rule in U.S. v. Brooks, 176 F.2d 482 (4th Cir. 1949)
requiring setoff of amounts obtained through military or veterans'
compensation systems against amounts otherwise recoverable will be
followed. Other Government benefits, funded by general treasury revenues
and not by the claimant's contributions, may also be used as a setoff
against the settlement. (See, Overton v. United States, 619 F.2d 1299
(8th Cir. 1980)).
(2) As the incident to service issue is determinative as to whether
this type of claim may be processed administratively at all, the
applicable law and facts should be carefully considered before deciding
that injury or death was not incident to service. Such claims also are
often difficult to settle on the issue of quantum and thus more likely
to end in litigation. Moreover, the United States may well elect to
defend the lawsuit on the basis of the incident to service exclusion,
and this defense could be prejudiced by a contrary administrative
determination that a service member's personal injuries or death were
not incident to service. Doubtful cases will be forwarded to the
Commander, USARCS without action along with sufficient factual
information to permit a determination of the incident to service
question.
Sec. 536.8 Use of appraisers and independent medical examinations.
(a) Appraisers. Appraisers should be used in all claims where an
appraisal is reasonably necessary and useful in effectuating the
administrative settlement of the claims. The decision to use an
appraiser is at the discretion of DA.
(b) Independent medical examinations. In claims involving serious
personal injuries, for example, normally those cases in which there is
an allegation of temporary or permanent disability, the
[[Page 246]]
claimant should be examined by an independent physician, or other
medical specialist, depending upon the nature and extent of the
injuries. The decision to conduct an independent medical examination is
at the discretion of DA.
Sec. 536.9 Effect on award of other payments to claimant.
The total award to which the claimant (and subrogee) may be entitled
normally will be computed as follows:
(a) Determine the total of the loss or damage suffered.
(b) Deduct from the total loss or damage suffered any payment,
compensation, or benefit the claimant has received from the following
sources:
(1) The U.S. or ARNG employee/member who caused the damage.
(2) The U.S. or ARNG employee's/member's insurer.
(3) Any person or agency in a surety relationship with the U.S.
employee; or
(4) Any joint tortfeasor or insurer, to include Government
contractors under contracts or in jurisdictions where it is permissible
to obtain contribution or indemnity from the contractor in settlement of
claims by contractor employees and third parties.
(5) Any advance payment made pursuant to Sec. 536.13.
(6) Any benefit or compensation based directly or indirectly on an
employer-employee relationship with the United States or Government
contractor and received at the expense of the United States including
but not limited to medical or hospital services, burial expenses, death
gratuities, disability payment, or pensions.
(7) The State (Commonwealth, etc.) whose employee or ARNG member
caused or generated an incident that was a proximate cause of the
resulting damages.
(8) Value of Federal medical care.
(9) Benefits paid by the Veterans Administration (VA) that are
intended to compensate the same elements of damage. When the claimant is
receiving money benefits from the VA under 38 U.S.C. 351 for a non-
service connected disability or death based on the injury that is the
subject of the claim, acceptance of a settlement or an award under the
FTCA (Sec. 536.50) will discontinue the VA monetary benefits until the
amount that would have otherwise been received in VA monetary benefits
is equal to the total amount of the agreement or award including
attorney fees. While monetary benefits received under 38 U.S.C. 351 must
be discontinued as above, medical benefits, that is, VA medical care may
continue provided the settlement or award expressly provides for such
continuance and the appropriate VA official is informed of such
continuance.
(10) When the claimant is receiving money benefits under 38 U.S.C.
410(b) for non-service connected death, arising from the injury that is
the subject of the claim, acceptance of a settlement or award under the
FTCA (Sec. 536.50) or under any other tort procedure will discontinue
the VA benefits until the amount that would have otherwise been received
in VA benefits is equal to the amount of the total settlement or award
including attorney fees. The discontinuation of monetary benefits under
38 U.S.C. 410(b) has no effect on the receipt of other VA benefits. The
claimant should be informed of the foregoing prior to the conclusion of
any settlement and thus afforded an opportunity to make appropriate
adjustment in the amount being negotiated.
(11) Value of other Federal benefits to which the claimant did not
contribute, or at least to the extent they are funded from general
revenue appropriation.
(12) Collateral sources where permitted by State law (for example,
State or Federal workers' compensation, social security, private health,
accident, and disability benefits paid as a result of injuries caused by
a health care provider).
(c) No deduction will be made for any payment the claimant has
received by way of voluntary contributions, such as donations of
charitable organizations.
(d) Where a payment has been made to the claimant by his insurer or
other subrogee, or under workmen's compensation insurance coverage, as
to which subrogated interests are allowable, the award based on total
damages will be apportioned as their separate interests are indicated
(see Sec. 536.5(b)).
[[Page 247]]
(e) After deduction of permissible collateral and non-collateral
sources, also deduct that portion of the loss or damage believed to have
been caused by the negligence of the claimant, third parties whose
negligence can be imputed to the claimant, or joint tortfeasors who are
liable for their share of the negligence (for example, where some form
of the Uniform Contribution Among Joint Tortfeasors Act has been
passed).
(f) Claims with more than one potential source of recovery. (1) The
Government seeks to avoid multiple recovery, that is, claimants seeking
recovery from more than one potential source, and to minimize the award
it must make. The claims investigation should therefore identify other
parties potentially liable to the claimant and/or their insurance
carriers; indicate the status of any claims made or include a statement
that none has been made so that it can be assured there is only one
recovery and the Government does not pay a disproportionate share. Where
no claim has been made by the claimant against others potentially
liable, if applicable State law grants the Government the right to
indemnity or contribution, and it is felt the Government may be entitled
to either under the facts developed by the claims investigation, the
claims officer or attorney should formally notify the other parties of
their potential liability, the Government's willingness to share
information, and its expectation of shared responsibility for any
settlement. Furthermore, the claimant may be receiving or entitled to
receive benefits from collateral and non-collateral sources, which can
be deducted from the total loss or damage. Accordingly, a careful review
must be made of applicable State laws regarding joint and several
liability, indemnity, contribution, comparative negligence, and the
collateral source doctrine.
(2) If a demand by a claimant or an inquiry by a potential claimant
is directed solely to the Army, in a situation where it appears that the
responsible Army employee may have applicable insurance coverage,
inquiry should be made of the employee as to whether he has liability
insurance.
(i) If so, determine if the insurer has made or will make any
payment to claimant. Under applicable State law, the United States may
be an additional named insured entitled to coverage under the employee's
liability policy. (See 16 ALR3d 1411; United States v. State Farm Mutual
Ins. Co., 245 F. Supp. 58 (D. Ore. 1965.)) Therefore, where there may be
applicable insurance coverage, there should be a review of the policy
language together with the rules and regulations of the State insurance
regulatory body to determine whether the United States comes within the
definition of ``insured,'' and whether the exclusion of the United
States from policy coverage conforms with state law and policy.
(ii) If the employee refuses to cooperate in providing this
information, he or she should be advised to comply with the notice
requirements of the insurance policy and to request the insurance
carrier contact the claims officer or attorney. In addition, other
sources of information, such as vehicle registration records, will be
checked to ascertain the employee's insurer. The case should be followed
to ascertain whether the employee's insurer has made or will make any
payment to the claimant before deciding whether to settle the claim
against the Government. Normally, the award, if any, to the claimant
will be reduced by the amount of the payment of the employee's insurance
carrier.
(3) If the employee is the sole target of the claim and Army claims
authorities arrange to have the claim made against the Government, the
member or employee should be required to notify his or her insurance
carrier according to the policy and inform DA claims authorities as to
the details of the insurance coverage, including the name of the
insurance carrier. Except when the ``Drivers Act'' is applicable, the
insurance carrier is expected to participate in the negotiation of the
claims settlement and to pay its fair share of any award to the
claimant.
(4) Where the responsible Army employee is ``on loan'' to another
employer other than the United States, for example, civilian institution
for ROTC instructor, or performing duties for a foreign government,
inquiry
[[Page 248]]
should be made to determine whether there is applicable statutory or
insurance coverage concerning the acts of the responsible employee and
contribution or indemnification sought, as appropriate. In the case of
foreign governments, applicable treaties or agreements are considered
controlling.
(5) A great many claims cognizable under the FTCA (Sec. 536.50) are
now settled on a compromise basis. A major consideration in many such
settlements is the identification of other sources of recovery. This is
true in a variety of factual situations where there is a potential joint
tortfeasor; for example, multi-vehicle accidents with multiple drivers
and guest passengers, State or local government involvement, contractors
performing non-routine tasks for the Government, medical treatment
rendered to a claimant by non-Government employees, or incidents caused
by a member or employee of the military department of a State or
Commonwealth with whom the DA does not have a cost-sharing agreement.
The law of the jurisdiction regarding joint and several liability,
indemnity and contribution may permit shared financial responsibility,
but even in jurisdictions which do not permit contribution, a compromise
settlement can often be reached with the other tortfeasor's insurance
company paying a portion of the total amount of the claim against the
Government. For these reasons, every effort should be made to identify
the insurance of all potential tortfeasors involved and the status of
any claims made, and to demand contribution or indemnity where there is
a substantial reason to believe that liability for the loss or damage
should be shared.
(6) Whenever a claim is filed against the Government under a statute
which does not permit the payment of a subrogated interest, it is
important to ensure that full information is obtained from the claimant
regarding insurance coverage, if any, since it is the clear legislative
intent of such statutes that insurance coverage be fully utilized before
using appropriated funds to pay the claims.
Sec. 536.10 Settlement agreement.
(a) General. Except under 31 U.S.C. 3721, if a claim is determined
to be meritorious in an amount less than claimed, or if a claim
involving personal injuries or death is approved in full, a settlement
agreement will be obtained prior to payment. Acceptance by a claimant of
an award constitutes a full and final settlement and release of any and
all claims against the United States and against the military or
civilian personnel whose act or omission gave rise to the claim.
(b) Claims involving workmen's compensation carriers. The settlement
of a claim involving a claimant who has elected to receive workmen's
compensation benefits under local law may require the consent of the
workmen's compensation carrier and in certain jurisdictions the State
agency with authority over workmen's compensation awards. Accordingly,
claims approval and settlement authorities should be aware of local
requirements.
Sec. 536.11 Appeals and notification to claimant as to denial of claims.
(a) General. The nature and extent of the written notification to
the claimant as to the denial of his claim should be based on whether
the claimant has a judicial remedy following denial or whether he has an
administrative recourse to appeal.
(b) Final Actions under the Federal Tort Claims Act (28 U.S.C. 2671-
2680) Sec. 536.50. If the settlement authority has information available
which could possibly be a persuasive factor in the decision of the
claimant as to whether to resort to litigation, such information may be
orally transmitted to the claimant and, in appropriate cases, released
under normal procedures in accordance with AR 340-17. However, the
written notification of the denial should be general in nature; for
example, denial on the weaker ground of contributory negligence should
be avoided, and the inclination should be to deny on the basis that the
claimant was solely responsible for the incident. The claimant will be
informed in writing of his right to bring an action in the appropriate
United States District Court not later than 6 months after the date of
mailing of the notification.
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(c) Denials under the MCA (10 U.S.C. 2733) Secs. 536.20 through
536.35 and the NGCA (32 U.S.C. 715) Secs. 536.70 through 536.81. Claims
disapproved under these statutes are subject to appeal and the claimant
will be so informed. Also, the notice of disapproval will be
sufficiently detailed to provide the claimant with an opportunity to
know and attempt to overcome the basis for the disapproval. The claimant
should not be afforded a valid basis for claiming surprise when an issue
adverse to him is asserted as a basis for denying his appeal.
(d) Denials on jurisdictional grounds. Regardless of the nature of
the claim presented or the statute under which it may be considered,
claims denied on jurisdictional grounds which are valid, certain, and
not easily overcome and in which for this reason no detailed
investigation as to the merits of the claim is conducted, should contain
in the denial letter a general statement to the effect that the denial
on such grounds is not to be construed as an expression of opinion on
the merits of the claim or an admission of liability. If sufficient
factual information is available to make a tentative ruling on the
merits of the claim, liability may be expressly denied.
(e) Where claim may be considered under more than one statute. In
cases in which it is doubtful as to whether the MCA (Secs. 536.20
through 536.35) or the NGCA (Secs. 536.70 through 536.81) or the FTCA
(Sec. 536.50) is the appropriate statute under which to consider the
claim, the claimant will be advised of the alternatives, for example,
the right to sue or the right to appeal. Similarly, a claimant may be
advised of his alternative remedies when the claimant is a military
member and the issue of ``incident to service'' is not clear.
Sec. 536.12 Effect of payment.
Acceptance of an award by the claimant, except for an advance
payment, constitutes for the United States, and for the military member
or civilian employee whose act or omission gave rise to the claim, a
release from all liability to the claimant based on the act or omission.
Sec. 536.13 Advance payments.
(a) Purpose. This section implements the Act of 8 September 1961 (75
Stat. 488, 10 U.S.C. 2736), as amended by Public Law 90-521 (82 Stat.
874), Public Law 98-564 (98 Stat. 2918) and Public Law 100-456. No new
liability is created by 10 U.S.C. 2736, which merely permits partial
advance payments on meritorious claims as specified in this section.
(b) Conditions for advance payment. An advance payment not in excess
of $100,000 is authorized in the limited category of claims resulting in
immediate hardship arising from incidents that are payable under the
provisions of Secs. 536.20 through 536.35, 536.70 through 536.81, or the
FCA (10 U.S.C. 2734). An advance payment is authorized only under the
following circumstances:
(1) The claim must be determined to be cognizable and meritorious
under the provisions of either Secs. 536.20 through 536.35, and 536.70
through 536.81, or the FCA (10 U.S.C. 2734).
(2) There exists an immediate need of the person who suffered the
injury, damage, or loss, or of the family of a person who was killed,
for food, clothing, shelter, medical or burial expenses, or other
necessities, and other resources for such expenses are not reasonably
available.
(3) The payee, so far as can be determined, would be a proper
claimant, as is the spouse or next of kin of a claimant who is
incapacitated.
(4) The total damage sustained must exceed the amount of the advance
payment.
(5) A properly executed advance payment acceptance agreement has
been obtained.
Subpart B--Claims Arising From Activities of Military or Civilian
Personnel or Incident to Noncombat Activities
Sec. 536.20 Statutory authority.
The statutory authority for Secs. 536.20 through 536.35 is contained
in the Act of 10 August 1956 (70A Stat. 153, 10 U.S.C. 2733) commonly
referred to as the Military Claims Act (MCA), as
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amended by Public Law 90-522, 26 September 1968 (82 Stat. 875), Public
Law 90-525, 26 September 1968 (82 Stat. 877), Public Law 91-312, 8 July
1970 (84 Stat. 412) and Public Law 93-336, 8 July 1974 (88 Stat. 291);
and the Act of 8 September 1961 (75 Stat. 488, 10 U.S.C. 2736), as
amended by Public Law 90-521, 26 September 1968 (82 Stat. 874) and
Public Law 98-564, 30 October 1984 (98 Stat. 2918).
Sec. 536.21 Definitions.
The definitions of terms set forth in Sec. 536.3 are applicable to
Secs. 536.20 through 536.35.
Sec. 536.22 Scope.
Sections 536.20 through 536.35 are applicable in all places and
prescribe the substantive bases and special procedural requirements for
the settlement of claims against the United States for death, personal
injury, or damage to or loss or destruction of property caused by
military personnel or civilian employees of the DA acting within the
scope of their employment, or otherwise incident to the noncombat
activities of the DA, provided such claim is not for personal injury or
death of a member of the Armed Forces or Coast Guard or a civilian
officer or employee whose injury or death is incident to service.
Sec. 536.23 Claims payable.
(a) General. Unless otherwise prescribed, a claim for personal
injury, death, or damage to or loss of real or personal property is
payable under Secs. 536.20 through 536.35 when--
(1) Caused by an act or omission determined to be negligent,
wrongful, or otherwise involving fault of military personnel or civilian
officers or employees of the Army acting within the scope of their
employment, or
(2) Incident to the noncombat activities of the Army.
(b) Property. The loss or damage to property which may be the
subject of claims under Secs. 536.20 through 536.35 includes--
(1) Real property used and occupied under a lease, express or
implied, or otherwise (for example, in connection with training, field
exercises, or maneuvers). An allowance may be made for the use and
occupancy of real property arising out of trespass or other tort, even
though claimed as rent.
(2) Personal property bailed to the Government under an agreement,
express or implied, unless the owner has expressly assumed the risk of
damage or loss. Some losses may be payable using Operations and
Maintenance, Army funds. Clothing damage or loss claims arising out of
the operation of an Army Quartermaster laundry are considered to be
incident to service and are payable only if claimant is not a proper
claimant under 31 U.S.C. 3721.
(3) Registered or insured mail in the possession of the Army, even
though the loss was caused by a criminal act.
(c) Effect of FTCA. A claim arising in the United States may be
settled under Secs. 536.20 through 536.35 only if the FTCA (28 U.S.C.
2671-2680), Sec. 536.50, has been judicially determined not to be
applicable to claims of this nature, or if the claim arose incident to
noncombat activities.
(d) Advance payments. Advance payments under 10 U.S.C. 2736, as
amended, in partial payment of meritorious claims to alleviate immediate
hardship are authorized.
Sec. 536.24 Claims not payable.
A claim is not payable under Secs. 536.20 through 536.35 which--
(a) Results wholly from the negligent or wrongful act of the
claimant or agent.
(b) Is for reimbursement for medical, hospital, or burial expenses
furnished at the expense of the United States.
(c) Is purely contractual in nature.
(d) Arises from private as distinguished from Government
transactions.
(e) Is based solely on compassionate grounds.
(f) Is for war trophies or articles intended directly or indirectly
for persons other than the claimant or members of his or her immediate
family, such as articles acquired to be disposed of as gifts or for sale
to another, voluntarily bailed to the Army, or is for precious jewels or
other articles of extraordinary value voluntarily bailed to the Army.
The preceding sentence is not applicable to claims involving registered
or insured mail. No allowance
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will be made for any item when the evidence indicates that the
acquisition, possession, or transportation thereof was in violation of
DA directives.
(g) Is for rent, damage, or other payments involving the
acquisition, use, possession, or disposition of real property or
interests therein by and for the DA, except as authorized by
Sec. 536.23(b)(1). Real estate claims founded upon contract are
generally processed under AR 405-15.
(h) Is not in the best interests of the United States, is contrary
to public policy, or is otherwise contrary to the basic intent of the
governing statute (10 U.S.C. 2733); for example, claims by inhabitants
of unfriendly foreign countries or by or based on injury or death of
individuals considered to be unfriendly to the United States. When a
claim is considered to be not payable for the reasons stated in this
paragraph, it will be forwarded for appropriate action to the Commander,
USARCS, together with the recommendations of the responsible claims
office.
(i) If presented by a national, or a corporation controlled by a
national, or a country at war or engaged in armed conflict with the
United States, or of any country allied with such enemy country unless
the settlement authority having jurisdiction over the claim determines
that the claimant is and, at the time of the incident, was friendly to
the United States. A prisoner of war or an interned enemy alien is not
excluded as to a claim for damage, loss, or destruction of personal
property in the custody of the Government otherwise payable.
(j) Is for personal injury or death of a member of the Armed Forces
or Coast Guard or a civilian employee thereof which is incident to his
or her service (10 U.S.C. 2733(b)(3)).
(k) The types of claims not payable under the FTCA (see
Sec. 536.50(j)) are also not payable under Secs. 536.20 through 536.35
with the following exceptions:
(1) The foreign country exclusion in 28 U.S.C. 2680(k) does not
apply to claims under Secs. 536.20 through 536.35.
(2) The Feres bar in Sec. 536.50(j)(1) does not apply to claims
under Secs. 536.20 through 536.35, but see the exclusion in paragraph
(j) of this section.
Sec. 536.25 Claims also cognizable under other statutes.
(a) General. Claims based upon a single act or incident cognizable
under Secs. 536.20 through 536.35, which are also cognizable under the
FTCA (28 U.S.C. 2671-2680) Sec. 536.50, the Army Maritime Claims
Settlement Act (10 U.S.C. 4801-04, 4806) Sec. 536.60, the FCA (10 U.S.C.
2734), or title 31, U.S.C. section 3721 (Personnel Claims), will be
considered first under the latter statutes. If not payable under any of
those latter statutes, the claim will be considered under Secs. 536.20
through 536.35.
(b) Claims in litigation. Disposition under Secs. 536.20 through
536.35 of any claim of the type covered by this section that goes into
litigation in any State or Federal court under any State or Federal
statute or ordinance will be suspended pending disposition of such
litigation and the claim file will be forwarded to the Commander,
USARCS. The Commander, USARCS, in coordination with the U.S. Department
of Justice, may determine that final disposition under Secs. 536.20
through 536.35 during pendency of the litigation is in the best
interests of the United States. This section will also apply to any
litigation brought against any agent of the United States in his or her
individual capacity which is based upon the same acts or incidents upon
which a claim under Secs. 536.20 through 536.35 is based.
Sec. 536.26 Presentation of claims.
(a) When claim must be presented. A claim may be settled under
Secs. 536.20 through 536.35 only if presented in writing within 2 years
after it accrues, except that if it accrues in time of war or armed
conflict, or if war or armed conflict intervenes within 2 years after it
accrues, and if good cause is shown, the claim may be presented not
later than 2 years after war or armed conflict is terminated. As used in
this section, a war or armed conflict is one in which any Armed Force of
the United States is engaged. The dates of commencement and termination
of an armed conflict must be as established by concurrent resolution of
Congress or by determination of the President.
(b) Where claim must be presented. A claim must be presented to an
agency
[[Page 252]]
or instrumentality of the DA. However, the statute of limitations is
tolled if a claim is filed with another agency of the Government and is
forwarded to the DA within 6 months, or if the claimant makes inquiry of
the DA concerning his or her claim within 6 months after it was filed
with another agency of the Government. If a claim is received by an
official of the DA who is not a claims approval or settlement authority
under Secs. 536.20 through 536.35, the claim will be transmitted without
delay to the nearest claims office or JA office for delivery to such an
authority.
Sec. 536.27 Procedures.
So far as not inconsistent with Secs. 536.20 through 536.35, the
procedures set forth in Secs. 536.1 through 536.13 will be followed.
Subrogated claims will be processed as prescribed in Sec. 536.5(b).
Sec. 536.28 Law applicable.
(a) As to claims arising in the United States, its territories,
commonwealths, and possessions, the law of the place where the act or
omission occurred will be applied in determining liability and the
effect of contributory negligence on claimant's right to recover
damages.
(b) In claims arising in a foreign country, liability of the United
States will be assessed by reference to general principles of tort law
common to the majority of United States jurisdictions. Absolute
liability and similar theories are not a basis for liability under this
section. Damages will be determined under Sec. 536.29. If the negligence
of the claimant was a partial cause of the injury, loss or damage,
recovery will be barred if the negligence of the claimant is greater
than that of the United States. In traffic accident cases, questions of
negligence, and the degree of the claimant's comparative negligence,
will be evaluated based on the traffic and vehicle safety laws and
regulations of the country in which the accident occurred, but only to
the extent they are not specifically superseded or preempted by the
United States military traffic regulations.
Sec. 536.29 Compensation for property damage, personal injury, or death.
(a) Measure of damages for property claims--(1) General. The measure
of damages in property claims arising in the United States or its
possessions will be determined in accordance with the law of the place
where the incident occurred. The measure of damages in property claims
arising overseas will be determined in accordance with general
principles of United States tort law.
(2) Proof of damage. The information listed below (similar to that
required by 28 CFR 14.4(c)) will be submitted by a claimant to
substantiate a claim.
(i) Proof of ownership.
(ii) Detailed statement of amount claimed for each item of property.
(iii) Itemized receipt of estimate for all repairs.
(iv) Statement giving date of purchase, price and, where not
economically repairable, the salvage value.
(3) Appraisals. The assistance of appraisers should be used in all
claims where, in the opinion of the claims officer, an appraisal is
reasonably necessary and useful in reaching an administrative settlement
of claims.
(b) Measure of damages in injury or death claims arising in the
United States or its possessions. Where an injury or an injury resulting
in death arises within the United States or its possessions, the measure
of damages will be determined in accordance with the law of the State or
possession wherein the injury arises.
(1) The information listed below (similar to that required by 28 CFR
14.4(a)) will be submitted by a claimant to substantiate a wrongful
death claim.
(i) Authenticated death certificate or other competent evidence
showing date and cause of death and age of decedent.
(ii) Decedent's employment and occupation at time of death,
including salary or earnings and duration of last employment or
occupation.
(iii) Names, addresses, birthdates, kinship and marital status of
survivors.
(iv) Identification of persons dependent on decedent for support at
time of death and the degree of support provided.
[[Page 253]]
(v) Decedent's general physical and mental condition at time of
death.
(vi) Itemized bills or receipt for medical and burial expenses.
(vii) If damages for pain and suffering are claimed, a physician's
statement specifying the injuries suffered, duration of pain and
suffering, drugs administered and decedent's physical condition between
time of injury and time of death.
(2) The information listed below (similar to that required by 28 CFR
14.4(b)) will be submitted by a claimant to substantiate a personal
injury claim.
(i) Written report by attending the physician or dentist setting
forth the:
(A) Nature and extent of injury;
(B) Nature and extent of treatment;
(C) Degree of temporary or permanent disability;
(D) Prognosis;
(E) Period of hospitalization; and
(F) Diminished earning capacity.
(ii) Itemized bills or receipts for medical, dental and hospital
expenses.
(iii) If the prognosis includes future treatment, a statement of
expected expenses for such treatment.
(iv) If the claim includes lost time from employment, a statement by
the employer showing the actual time lost and wages and/or salary lost.
(v) If the claim includes lost income by a self-employed claimant,
documentary evidence of such loss.
(c) Measure of damages in injury or death claims arising in foreign
countries. (1) Subject to the limitations in Sec. 636.29e, where an
injury, or injury resulting in death arises in a foreign country, the
measure of damages will be determined in accordance with established
principles of general maritime law (see generally, Moragne v. United
States Lines, Inc., 398 U.S. 375 (1970), as interpreted by Federal Court
decisions). Where general maritime law provides no interpretation of
allowable damages under a particular theory of liability (e.g., wrongful
birth), damages will be determined in accordance with general principles
of United States tort law.
(2) The information listed in Sec. 536.29(b) (1) and (2), as
appropriate, will be submitted by the claimant to substantiate a claim.
(3) A claimant who suffers serious personal injury, resulting in
temporary or permanent disability should be examined by an independent
physician or other medical specialist (See Sec. 536.8(b)).
(d) Failure to substantiate a claim. (1) The government is not
obligated to take final action on a claim until it has been supported by
the claimant with specific facts substantiated by appropriate
documentary evidence, reports of investigation, medical records or
witness statements. Upon request, the claimant must:
(i) Provide the documentation required by paragraphs (a), (b) and
(c) of this section;
(ii) Undergo necessary medical examinations;
(iii) Permit questioning of the claimant, his or her witness, and
treating medical personnel;
(iv) Submit an expert opinion in a professional negligence action.
(2) Failure to comply with these requirements may provide a basis
for denial of a claim, in full or in part.
(e) Damages not payable. The following damages are not payable in
any claim arising under the Military Claims Act:
(1) Punitive or exemplary damages, including damages punitive in
nature under 28 U.S.C. 2674.
(2) Interest on any claim settlement.
Sec. 536.30 Structured settlements.
(a) The use of the structured settlement device by approval and
settlement authorities is encouraged in all appropriate cases. A
structured settlement should not be used when contrary to the desires of
the claimant.
(b) Notwithstanding the above, the Commander, USARCS may require or
recommend to higher authority that an acceptable structured settlement
be made a condition of award notwithstanding objection by the claimant
or his or her representative where--
(1) Necessary to ensure adequate and secure care and compensation to
a minor or otherwise incompetent claimant over a period of years;
(2) Where a trust device is necessary to ensure the long-term
availability of funds for anticipated further medical care;
[[Page 254]]
(3) Where the injured party's life expectancy cannot be reasonably
determined.
Sec. 536.31 Claims over $100,000.
Claims cognizable under 10 U.S.C. 2733 and Secs. 536.20 through
536.35, which are meritorious in amounts in excess of $100,000, will be
forwarded to the Commander, USARCS who will negotiate a settlement
subject to approval by the Secretary of the Army or designee, or require
the claimant to state the lowest amount that will be acceptable and
provide appropriate justification. Tender of a final offer by the
Commander, USARCS constitutes an action subject to appeal. The
Commander, USARCS will prepare a memorandum of law with recommendations
and forward the claim to the Secretary of the Army, or designee, for
final action. The Secretary or designee will either disapprove the claim
or approve it in whole or in part.
Sec. 536.32 Settlement procedures.
(a) Procedures. Approval and settlement authorities will follow the
procedures set forth in Secs. 536.1 through 536.13 in paying, denying or
making final offers on claims. A copy of the notification will be
forwarded to Commander, USARCS. The settlement authority will notify the
claimant by certified mail (return receipt registered) of a denial or
final action and the reason therefore. The letter of notification will
inform the claimant of the following:
(1) He or she may appeal, and that no form is prescribed for the
appeal.
(2) The title of the authority who will act on the appeal and that
the appeal will be addressed to the settlement authority who last acted
on the claim.
(3) The claimant must fully set forth the grounds for appeal, or
state that he or she appeals on the basis of the record as it exists at
the time of denial or final offer.
(4) The appeal must be postmarked not later than 60 days after
receipt of notice of action on the claim. If the 60th day falls on a day
on which the post office is closed, the next day on which it is open for
business will be considered the final day of the appeal period. The 60
day appeal period starts on the day following claimant's receipt of the
letter from the settlement authority informing the claimant of the
action taken and of the appellant rights. For good cause shown, the
Commander, USARCS, or designee, or the chief of a command claims service
(if the appellate authority), may extend the time for appeal, but
normally such extension will not exceed 90 days.
(5) Where a claim for the same injury has been filed under the FTCA
and the denial or final offer applies equally to such claim, the letter
of notification must advise the claimant that any suit brought as to any
portion of the claim under the FTCA must be brought not later than 6
months from the date of mailing of the notice of denial or final offer.
Further, the claimant must be advised that if suit is brought, action on
any appeal will be held in abeyance pending final determination of such
suit.
(b) Action on appeal. (1) 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 section. The settlement authority will also examine the claims
investigative file and decide whether additional investigation is
required; ensure all allegations or evidence presented by the claimant,
agent or attorney are documented in the file; and that all pertinent
evidence is included in the file. If the claimant states that he or she
appeals but does not submit supporting materials within the 60 day
appeal period or an approved extension thereof, the appeal will be
treated as being on the record as it existed at the time of denial or
final offer. Unless action under paragraph (b)(2) of this section is
taken; the claim with complete investigative file including any
additional investigation required and a memorandum of opinion will be
forwarded to the appropriate appellate authority for necessary action on
the appeal.
(2) If the evidence in the file, including information submitted by
the claimant with the appeal and 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
[[Page 255]]
or his or her successor will attempt to settle the claim. If settlement
cannot be reached, the appeal will be forwarded in accordance with
paragraph (b)(1) of this section.
(3) As to an appeal that requires action by TJAG, The Assistant
Judge Advocate General (TAJAG), or the Secretary of the Army, or
designee, the Commander, USARCS may take the action in paragraph (b)(2)
of this section or forward the claim together with a recommendation for
action. All matters submitted by the claimant will be forwarded and
considered.
(4) Since an appeal under this authority is not an adversary
proceeding, no form of hearing is authorized. A request by the claimant
for access to documentary evidence in the claims file to be used in
considering the appeal should be granted unless access is not permitted
by law or regulation.
Sec. 536.33 Attorney fees.
In the settlement of any claim under Secs. 536.20 through 536.35,
attorney fees shall not exceed 20 percent of the final cost to the
United States of the award.
Sec. 536.34 Payment of costs, settlements, and judgments related to certain medical and legal malpractice claims.
(a) Costs, settlements, or judgments cognizable under 10 U.S.C.
1089(f) for personal injury or death caused by any physician, dentist,
nurse, pharmacist, or paramedical, or other supporting personnel
(including medical and dental technicians, nurse assistants, and
therapists) of DA should be forwarded to Commander, USARCS, for action
and will be paid, provided:
(1) The alleged negligent or wrongful actions or omissions arose in
performance of medical, dental or related health care functions
(including clinical studies and investigations) within the scope of
employment; and
(2) Such personnel provide prompt notification and delivery of all
process served or received, provide such other documents, information,
and assistance as requested, and cooperate in the defense of the action
on the merits. (See DoD Directive 6000.6.)
(b) Costs, settlements, and judgments cognizable under 10 U.S.C.
1054(f) for damages for injury of loss of property caused by any
attorney, paralegal, or other member of a legal staff within the DA
should be forwarded to Commander, USARCS, for action and will be paid,
provided:
(1) The alleged negligent or wrongful actions or omissions arose in
connection with providing legal services while acting within the scope
of the person's duties or employment, and
(2) Such personnel provide prompt notification and delivery of all
process served or received, provide such other documents, information
and assistance as requested, and cooperate in the defense of the action
on the merits. (See DoD Directive 6000.6.)
Sec. 536.40 Claims under Article 139, Uniform Code of Military Justice.
(a) Statutory authority. The authority for this section is Article
139, Uniform Code of Military Justice (10 U.S.C. 939) which provides for
redress of damage to property willfully damaged or destroyed, or
wrongfully taken, by members of the armed forces of the United States.
(b) Purpose. This section sets forth the standards to be applied and
the procedures to be followed in the processing of claims for damage,
loss or destruction of property owned by or in the lawful possession of
an individual, whether civilian or military, a business, a charity, or a
State or local government, where the property was wrongfully taken or
willfully damaged by military members of DA. Claims cognizable under
other claims statutes may be processed under this section.
(c) Effect of disciplinary action. Administrative action under
Article 139 and this section is entirely separate and distinct from
disciplinary action taken under other articles of the UCMJ or other
administrative actions. Because action under Article 139 and this
section requires independent findings on issues other than guilt or
innocence, the mere fact that a soldier was convicted or acquitted of
charges is not dispositive of a claim under Article 139.
(d) Claims cognizable. Claims cognizable under Article 139, UCMJ are
limited to--
(1) Claims for property willfully damaged. Willful damage is damage
which
[[Page 256]]
is inflicted intentionally, knowingly, and purposefully without
justifiable excuse, as distinguished from damage caused inadvertently or
thoughtlessly through simple or gross negligence. Damage, loss, or
destruction of property caused by riotous, violent, or disorderly acts,
or by acts of depredation, or through conduct showing reckless or wanton
disregard of the property rights of others may be considered willful
damage.
(2) Claims for property wrongfully taken. A wrongful taking is any
unauthorized taking or withholding of property, not involving the breach
of a fiduciary or contractual relationship, with the intent to
temporarily or permanently deprive the owner or person lawfully in
possession of the property. Damage, loss, or destruction of property
through larceny, forgery, embezzlement, fraud, misappropriation, or
similar offense may be considered wrongful taking.
(e) Claims not cognizable. Claims not cognizable under this section
and Article 139 include--
(1) Claims resulting from negligent acts.
(2) Claims for personal injury or death.
(3) Claims resulting from acts or omissions of military personnel
acting within the scope of their employment.
(4) Claims resulting from the conduct of reserve component personnel
who are not subject to the UCMJ at the time of the offense.
(5) Subrogated claims, including claims by insurers.
(f) Limitations on assessments--(1) Time Limitations. To be
considered, a claim must be submitted within 90 days of the incident out
of which the claim arose, unless the special court-martial convening
authority (SPCMCA) acting on the claim determines that good cause has
been shown for the delay.
(2) Limitations on amount. No soldier's pay may be assessed more
than $5,000 on a single claim without the approval of the Commander,
USARCS, or designee. If the commander acting on the claim determines
that an assessment against a soldier in excess of $5,000 is meritorious,
he or she will assess the pay of that soldier in the amount of $5,000
and forward the claim to the Commander, USARCS, with his or her
recommendation as to the additional amount which should be assessed.
(3) Direct damages. Assessments are limited to direct damages for
the loss of or damage to property. Indirect, remote, or consequential
damages may not be considered under this section.
(g) Procedure. Area claims offices and claims processing offices
with approval authority are responsible for publicizing the Article 139
program and maintaining a log for Article 139 claims presented in their
areas (see Personnel Claims Adjudication appendix G, Claims Manual).
Area claims offices and claims processing offices with approval
authority are required to monitor action taken on Article 139 claims and
ensure that time requirements are met. If assessment action on a
particular claim will be unduly delayed, the office may consider the
claim under 31 U.S.C. 3721 and chapter 11 of this regulation if it is
otherwise cognizable under the authority. The office will counsel the
claimant to repay any overpayment if the Article 139 claim is later
successful (see para 11-2e).
(1) Form of a claim and presentment. A claim must be presented by
the claimant or his or her authorized agent orally or in writing. The
claim must be reduced to writing, signed, and for a definite sum in U.S.
dollars within 10 days after oral presentment.
(2) Action upon receipt of a claim. Any officer receiving a claim
will forward it within 2 working days to the SPCMCA over the soldier or
soldiers against whom the claim is made. If the claim is made against
soldiers under the jurisdiction of more than one such convening
authority who are under the same general court-martial convening
authority, the claim will be forwarded to that general court-martial
convening authority, who will designate one SPCMCA to investigate and
act on the claim as to all soldiers involved. If the claim is made
against soldiers under the jurisdiction of more than one SPCMCA at
different locations and not under the same general court-martial
convening authority, the claim will be forwarded to the SPCMCA whose
headquarters is closest to the situs of the incident, who will
investigate and act
[[Page 257]]
on the claim as to all soldiers involved. If a claim is made against a
member of one of the other military Services, the claim will be
forwarded to the commander of the nearest major Army command (MACOM) of
that Service.
(3) Action by the SPCMCA. Within 4 working days of receipt of a
claim, the SPCMCA will appoint an investigating officer to investigate
the claim, using the procedures of this section supplemented by the
procedures of AR 15-6. The claims officer of a command, if he or she is
a commissioned officer, may be appointed as the investigating officer.
(4) Action by the investigating officer. The investigating officer
will provide notification to the soldier against whom the claim is made.
(i) If the soldier indicates a desire to make voluntary restitution,
the investigating officer may, with the convening authority's
concurrence, delay proceedings until the end of the next pay period to
accomplish this. If the soldier makes payment to the claimant's full
satisfaction, the claim will be dismissed.
(ii) In the absence of full restitution, the investigating officer
will determine whether the claim is cognizable and meritorious under the
provisions of Article 139 and this chapter and the amount to be assessed
each offender. This amount will be reduced by any restitution accepted
by the claimant from an offender in partial satisfaction. Within 10
working days or such time as the SPCMCA may provide, the investigating
officer will make findings and recommendations and submit these to the
SPCMCA. The investigating officer will also provide a copy of his or her
findings and recommendations to any soldier against whom an assessment
is recommended.
(iii) If the soldier is absent without leave so that he or she
cannot be provided with notification, the Article 139 claim may be
processed in the soldier's absence. If an assessment is approved, a copy
of the claim and SPCMCA approval will be forwarded by transmittal letter
to the servicing finance and accounting office (FAO) for offset input
against the soldier's pay account. In the event the soldier is dropped
from the rolls, the servicing FAO will forward the assessment documents
to Commander, U.S. Army Finance and Accounting Center, attn: Department
40, Indianapolis, Indiana 46249.
(5) Legal review. After completion of the investigating officer's
report, the SPCMCA will refer the claim to the area claims office or
claims processing office servicing his or her command to review for
legal sufficiency and advice. That office will furnish within 5 working
days or such time as the SPCMCA will provide a written opinion as to--
(i) Whether the claim is cognizable under the provisions of Article
139 and this chapter.
(ii) Whether the findings and recommendations are supported by
evidence.
(iii) Whether there has been substantial compliance with the
procedural requirements of Article 139, this chapter, and AR 15-6.
(6) Final action. After considering the advice of the claims office,
the SPCMCA will disapprove the claim or approve the claim in an amount
equal to or less than the amount recommended by the investigating
officer. The SPCMCA will notify the claimant, and any soldier subject to
his or her jurisdiction, of the determination and the right to request
reconsideration. The SPCMCA will then suspend action on the claim for 10
working days pending receipt of a request for reconsideration unless he
or she determines that this delay will result in substantial injustice.
The SPCMCA will direct the servicing finance officer for the soldier or
soldiers against whom assessments are approved to withhold such amount
from the soldier or soldiers up to $5000. For any soldier not subject to
the SPCMCA's jurisdiction, the SPCMCA will forward the claim to that
commander who does exercise special court-martial jurisdiction over the
soldier for collection action.
(7) Assessment. Subject to any limitations provided in appropriate
regulations, the servicing finance officer will withhold the amount
directed by the SPCMCA and pay it to the claimant. The SPCMCA's
assessment is not subject to appeal and is conclusive on any finance
officer. If the servicing finance officer finds that the required amount
cannot be withheld because he or she
[[Page 258]]
does not have custody of the soldier's pay record or because the soldier
is in a no pay due status, the servicing finance officer will promptly
notify the SPCMCA of this in writing.
(8) Post settlement action. After action on the claim is completed,
the claims office servicing the command which took final action will
forward one copy of the claim together with a cover sheet and all
attachments, to include information that money has or has not been
withheld and paid to the claimant by the servicing finance officer,
through any command claims service, to the Commander, USARCS.
(9) Remission of indebtedness. Title 10, United States Code, section
4837(d), which authorizes the remission and cancellation of indebtedness
of an enlisted person to the United States or its instrumentalities, is
not applicable and may not be used to remit and cancel indebtedness
determined as a result of action under Article 139.
(h) Reconsideration--(1) General. Although Article 139 does not
provide for a right of appeal, either the claimant or a soldier whose
pay is assessed may request the SPCMCA or a successor in command to
reconsider the action. A request for reconsideration will be submitted
in writing and will clearly state the factual or legal basis for the
relief requested. The SPCMCA may direct that the matter be
reinvestigated.
(2) Reconsideration by the original SPCMCA. The original SPCMCA may
reconsider the action so long as he occupies that position, regardless
of whether a soldier whose pay was assessed has been transferred. If the
original SPCMCA determines that the action was incorrect, he or she may
modify it subject to paragraph (h)(4) of this section. If a request for
reconsideration is submitted more than 15 days after notification was
provided, however, the SPCMCA should only modify the action on the basis
of fraud, substantial new evidence, errors in calculation, or mistake of
law.
(3) Reconsideration by a successor in command. Subject to paragraph
(h)(4) of this section, a successor in command may only modify an action
on the basis of fraud, substantial new evidence, errors in calculation
or mistake of law apparent on the face of the record.
(4) Legal review and action. Prior to modifying the original action,
the SPCMCA will have the claims office render a legal opinion and fully
explain his or her basis for modification as part of the file. If a
return of assessed pay is deemed appropriate, the SPCMCA should request
the claimant to return the money, setting forth the basis for the
request. There is no authority for repayment from appropriated funds.
(5) Disposition of files. After completing action on
reconsideration, the SPCMCA will forward a copy of the reconsideration
action to the Commander, USARCS, and retain one or more additional
copies with the claim file.
Sec. 536.50 Claims based on negligence of military personnel or civilian employees under the Federal Tort Claims Act.
(a) Authority. The statutory authority for this chapter is the FTCA
(60 Stat. 842, 28 U.S.C. 2671-2680), as amended by the Act of 18 July
1966 (Pub. L. 89-506; 80 Stat. 306), the Act of 16 March 1974 (Pub. L.
93-253; 88 Stat. 50), and the Act of 29 December 1981 (Pub. L. 97-124),
and as implemented by the Attorney General's Regulations (28 CFR 14.1-
14.11).
(b) Scope. This section prescribes the substantive basis and special
procedural requirements for the administrative settlement of claims
against the United States under the FTCA and the implementing Attorney
General's Regulations based on death, personal injury, or damage to or
loss of property which accrue on or after 18 January 1967. If a conflict
exists between the provisions of this section and the provisions of the
Attorney General's Regulations, the latter govern.
(c) Claims payable. Unless otherwise prescribed, claims for death,
personal injury, or damage to or loss of property (real or personal) are
payable under this section when the injury or damage is caused by
negligent or wrongful acts or omissions of military personnel or
civilian employees of the DA or the DoD while acting within the scope of
their employment under circumstances in which the United States, if a
private person, would be liable to the claimant in accordance with the
law of the place
[[Page 259]]
where the act or omission occurred. The FTCA is a limited consent to
liability without which the United States is immune. Similarly, there is
no Federal cause of action created by the Constitution which would
permit a damage recovery because of the Fifth Amendment or any other
constitutional provision. Immunity must be expressly waived, as by the
FTCA.
(d) ``Employee of the Government'' (28 U.S.C. 2671) includes the
following categories of tortfeasors for which the DA is responsible:
(1) Military personnel (members of the Army), including but not
limited to:
(i) Members on full-time active duty in a pay status, including--
(A) Members assigned to units performing active service.
(B) Members serving as ROTC instructors. (Does not include Junior
ROTC instructors unless on active duty.)
(C) Members serving as National Guard instructors or advisors.
(D) Members on duty or in training with other Federal agencies, for
example, Nuclear Regulatory Commission, National Aeronautics and Space
Administration, Departments of Defense, State, Navy, or Air Force.
(E) Members assigned as students or ordered into training at a non-
Federal civilian educational institution, hospital, factory, or other
industry. This does not include members on excess leave.
(F) Members on full-time duty at nonappropriated fund activities.
(G) Members of the ARNG of the United States on active duty.
(ii) Members of reserve units during periods of inactive duty
training and active duty training, including ROTC cadets who are
reservists while they are at summer camp.
(iii) Members of the ARNG while engaged in training or duty under 32
U.S.C. 316, 502, 503, 504, or 505 for claims arising on or after 29
December 1981.
(2) Civilian officials and employees of both the DOD and the DA
(there is no practical significance to the distinction between the terms
``official'' and ``employee'') including but not limited to--
(i) Civil Service and other full-time employees of both DOD and DA
paid from appropriated funds.
(ii) Contract surgeons (10 U.S.C. 1091, 4022) and consultants (10
U.S.C. 1091) where ``control'' is exercised over physician's day to day
practice.
(iii) Employees of nonappropriated funds if the particular fund is
an instrumentality of the United States and thus a Federal agency. In
determining whether or not a particular fund is a ``Federal agency,''
consider whether the fund is an integral part of the DA charged with an
essential DA operational function and the degree of control and
supervision exercised by DA personnel. Members or users, as
distinguished from employees of nonappropriated funds, are not
considered Government employees. The same is true of family child care
providers. However, claims arising out of the use of certain
nonappropriated fund property or the acts or omissions of family child
care providers, may be payable from such funds under chapter 12, AR 27-
20, as a matter of policy, even when the user is not within the scope of
employment and the claim is not otherwise cognizable under any other
claims authorization.
(iv) Prisoners of war and interned enemy aliens.
(v) Civilian employees of the District of Columbia National Guard,
including those paid under ``service contracts'' from District of
Columbia funds.
(vi) Civilians serving as ROTC instructors paid from Federal funds.
(vii) National Guard technicians employed under 32 U.S.C. 709(a) for
claims accruing on or after 1 January 1969 (Pub. L. 90-486, 13 August
1968; 82 Stat. 755).
(3) Persons acting in an official capacity for the DOD or the DA
whether temporarily or permanently in the service of the United States
with or without compensation including but not limited to--
(i) ``Dollar a year'' personnel.
(ii) Members of advisory committees, commissions, boards or the
like.
(iii) Volunteer workers in an official capacity acting in
furtherance of the business of the United States. The general rule with
respect to volunteers is
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set forth in 31 U.S.C. 665(b), which provides that, ``No officer or
employee of the United States shall accept voluntary service for the
United States or employ personal service in excess of that authorized by
law, except in cases of emergency involving the safety of human life or
the protection of property.'' (5 U.S.C. 3111(c) specifically provides
that student volunteers employed thereunder shall be considered Federal
employees for purposes of claims under the FTCA. The same classification
is applied by 10 U.S.C. 1588 to museum and family support program
volunteers.) The DA is permitted to accept and use certain volunteer
services in Army family support programs. (10 U.S.C. 1588).
(iv) Loaned servants. Employees who are permitted to serve another
employer may be considered ``loaned servants,'' provided the borrowing
employer has the power to discharge the employee, to control and direct
the employee, and to decide how he will perform his tasks. Whoever has
retained those powers is liable for the employee's torts under the
principle of respondeat superior. Where those elements of direction and
control have been found, the United States has been liable, for example,
for the torts of Government employees loaned for medical training and
emergency assistance, and county and state employees discharging Federal
programs.
(e) ``Scope of employment'' means acting in ``line of [military]
duty'' (28 U.S.C. 2671) and is determined in accordance with principles
of respondeat superior under the law of the jurisdiction in which the
act or omission occurred. Determination as to whether a person is within
a category listed in paragraph (d)(3) of this section will usually be
made together with the scope determination. Local law should always be
researched, but the novel aspects of the military relationship should be
kept in mind in making a scope determination.
(f) ``Line of duty'' determinations under AR 600-8-1 are not
determinative of scope of employment. ``Joint venture'' situations are
likely to be frequent where the Federal employee is performing federally
assigned duties but is under actual direction and control of a non-
Federal entity, for example, a Federal employee in training at a non-
Federal entity or ROTC instructors at civilian institutions. This could
also occur where the employee is working for another Federal agency.
Furthermore, dual purpose situations are commonplace where benefits to
the Government and the member or employee may or may not be concurrent,
for example, use of privately owned vehicles at or away from assigned
duty station, or permanent change of station with delay en route. (See
Secs. 536.90 through 536.97 for the handling of certain claims arising
out of nonscope activities of members of the Army.)
(g) Law applicable. The whole law of the place where the act or
omission occurred, including choice of law rules, will be applied in the
determination of liability and quantum. Where there is a conflict
between the local law and an express provision of the FTCA, the latter
governs.
(h) Subrogation. Claims involving subrogation will be processed as
prescribed in Sec. 536.5(b), except where inconsistent with the
provisions of this section or the Attorney General's regulations.
(i) Indemnity or contribution--(1) Sought by the United States. If
the claim arises under circumstances in which the Government is entitled
to contribution or indemnity under a contract of insurance or the
applicable law governing joint tortfeasors, the third party will be
notified of the claim, and will be requested to honor its obligation to
the United States or to accept its share of joint liability. If the
issue of indemnity or contribution is not satisfactorily adjusted, the
claim will be compromised or settled only after consultation with the
Department of Justice as provided in 28 CFR 14.6.
(2) Claims for indemnity or contribution. Claims for indemnity or
contribution from the United States will be compromised or settled under
this section, if liability exists under the applicable law, provided the
incident giving rise to such claim is otherwise cognizable under this
section. As to such claims where the exclusivity of the FECA may be
applicable, see 5 U.S.C. 8101-8150.
(3) ARNG vehicular claims. When a vehicle used by the ARNG, or a
privately
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owned vehicle operated by a member or employee of the ARNG, is involved
in an incident under circumstances which make this section applicable to
the disposition of administrative claims against the United States and
results in personal injury, death, or property damage, and a remedy
against the State or its insurer is indicated, the responsible area
claims authority will monitor the action against the State or its
insurer and encourage direct settlement between the claimant and the
State or its insurer. Where the State is insured, direct contact with
State or ARNG officials rather than the insurer is desirable. Regular
procedures will be established and followed wherever possible. Such
procedures should be agreed on by both local authorities and the
appropriate claims authorities subject to concurrence by Commander,
USARCS. Such procedures will be designed to ensure that local
authorities and United States authorities do not issue conflicting
instructions for processing claims and that whenever possible and in
accordance with governing local and Federal law, a mutual arrangement
for disposition of such claims as in paragraph (i)(4) of this section is
worked out. Amounts recovered or recoverable by claimant from any
insurer (other than claimant's insurer who has obtained no subrogated
interest against the United States) will be deducted from the amount
otherwise payable.
(4) Claims arising out of training activities of ARNG personnel.
Contribution may be sought from the state involved where it has waived
sovereign immunity or has private insurance which would cover the
incident giving rise to the particular claim. Where the state involved
rejects the request for contribution, the file will be forwarded to the
Commander, USARCS. The Commander, USARCS, is authorized to enter into an
agreement with a State, territory, or commonwealth to share settlement
costs of claims generated by the ARNG personnel or activities of that
political entity.
(j) Claims not payable. The exclusions contained in 28 U.S.C. 2680
are applicable to claims herein. Other types of claims are excluded by
statute or court decisions, including, but not limited to, the
following:
(1) Claims for the personal injury or death of a member of the Armed
Forces of the United States incurred incident to service, or for damage
to a member's property incurred incident to service. Feres v. United
States, 340 U.S. 135 (1950). Currently the most significant
justification for the incident to service doctrine is the availability
of alternative compensation systems, and the fear of disrupting the
military command relationship. Other supportive factors often cited by
the courts are the service member's duty status, location, and receipt
of military benefits at the time of the incident.
(i) The exception applies to members of the Army, Navy, Air Force,
Marine Corps, and Coast Guard, including the Reserve Components of the
Armed Forces. (See 10 U.S.C. 261.) The exception also applies to service
members on the Temporary Disability Retired List, and on convalescent
leave, to service academy cadets, to members of visiting forces in the
United States under the SOFA between the parties to the North Atlantic
Treaty Organization or similar international agreements, and to service
members on the extended enlistment program.
(ii) The incident to service doctrine has been extended to
derivative claims where the directly injured party is a service member.
Third party indemnity claims are barred.
(2) Claims for the personal injury or death of a Government employee
for whom benefits are provided by the Federal Employees Compensation Act
(5 U.S.C. 8101-8150). Who is a government employee under the Act is
defined in the Act itself (5 U.S.C. 8101), but is not limited to Federal
Civil Service employees. The term ``government employee'' can include
certain ROTC cadets (5 U.S.C. 8140) and state or local law enforcement
officers engaged in apprehending a person for committing a crime against
the United States (5 U.S.C. 8191), certain nurses, interns or other
health care personnel, e.g., student nurses, etc. (5 U.S.C. 5351, 8144)
and certain Army Community Service Volunteers (10 U.S.C. 1588). This Act
provides that benefits paid under the Act are exclusive and instead of
all
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other liability of the United States, including that under a Federal
tort liability statute (5 U.S.C. 8116(c)). It extends to derivative
claims, to subsequent malpractice for treatment of a covered injury, to
injuries for which there is no scheduled compensation, and to employee
harassment claims for which other remedies are available (42 U.S.C.
2000e). The exception does not bar third party indemnity claims. When
there is doubt as to whether or not this exception applies, the claim
should be forwarded through claims channels to the Commander, USARCS,
for an opinion.
(3) Claims for the personal injury or death of an employee,
including nonappropriated fund employees, for whom benefits are provided
by the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C.
901-950). An employee of a nonappropriated fund instrumentality is
covered by that Act (5 U.S.C. 8171). This is the exclusive remedy for
covered employees, similar to the exclusivity of the FECA.
(4) Claims for the personal injury or death of any employee for whom
benefits are provided under any workmen's compensation law, if the
premiums of the workmen's compensation insurance are retrospectively
rated and charged as an allowable, allocable expense to a cost-type
contract. If, in the opinion of an approval or settlement authority, the
claim should be considered payable, for example, the injuries did not
result from a normal risk of employment or adequate compensation is not
payable under workmen's compensation laws, the file will be forwarded
with recommendations through claims channels to the Commander, USARCS,
who may authorize payment of an appropriate award.
(5) Claims for damage from or by flood or flood waters at any place.
33 U.S.C. 702c. This exception is broadly construed and includes multi-
purpose projects and all phases of construction and operation.
(6) Claims based solely upon a theory of absolute liability or
liability without fault. Either a ``negligent'' or ``wrongful'' act is
required by the FTCA, and some type of malfeasance or nonfeasance is
required. Dalehite v. United States, 346 U.S. 15 (1953); Laird v. Nelms,
406 U.S. 797 (1972). Thus, liability does not arise by virtue either of
United States ownership of an inherently dangerous commodity or of
engaging in extra-hazardous activity.
(k) Procedures--(1) General. Unless inconsistent with the provisions
of this section, the procedures for the investigation and processing of
claims set forth in Secs. 536.1 through 536.13 will be followed.
(2) Claims arising out of tortious conduct by ARNG personnel as
defined in paragraph (d)(1)(iii) of this section--(i) Notification. The
procedures prescribed in Sec. 536.75, will be followed in ARNG claims
arising under the FTCA.
(ii) Claims against the U.S. Government received by agencies of the
State. These claims will be expeditiously forwarded through the State
adjutant general to the appropriate U.S. Army area claims office in
whose geographic area the incident occurred.
(3) Statute of Limitations. (i) To be settled under this section, a
claim against the United States must be presented in writing to the
appropriate Federal agency within 2 years of its accrual.
(ii) For statute of limitations purposes, a claim will be deemed to
have been presented when the appropriate Federal agency as defined in
Sec. 536.3(m) receives from a claimant, his or her duly authorized
agent, or legal representative an executed SF 95 or written notification
of an incident, together with a claim for money damages, in a sum
certain, for damage to or loss of property or personal injury or death.
For Federal tort claims arising out of activities of the ARNG, receipt
of a written claim by any fulltime officer or employee of the ARNG will
be considered proper receipt.
(iii) A claim received by an official of the DOD will be transmitted
without delay to the nearest Army claims processing office or area
claims office. Inquiries concerning applicability of the statute of
limitations to claims filed with the wrong Federal agency will be
referred to USARCS for resolution.
(4) Claims within settlement authority of USARCS or the Attorney
General. A copy of each claim which must be brought to the attention of
the Attorney General in accordance with his or
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her regulations (28 CFR 14.6), or one in which the demand exceeds
$15,000 or the total amount of all claims, actual or potential, from a
single incident exceeds $25,000, will be forwarded immediately to the
Commander, USARCS. Subsequent documents should be forwarded or added in
accordance with Sec. 536.5(h)(2). USARCS is responsible for the
monitoring and settlement of such claims and will be kept informed of
the status of the investigation and processing thereof. Direct liaison
and correspondence between USARCS and the field claims authority or
investigator is authorized on all claims matters, and assistance will be
furnished as required.
(5) Non-Army claims. Claims based on acts or omissions of employees
of the United States, other than military and civilian personnel of the
DA, civilian personnel of the DOD, and employees of nonappropriated fund
activities of the DA, will be transmitted forthwith to the nearest
official of the employing agency, and the claimant will be advised of
the referral.
(6) Acknowledgment of claim. (i) The claimant and his or her
attorney will be kept informed by personal contact, telephonic contact,
or mail of the receipt of his or her claim and the status of the claim.
Formal acknowledgment of the claim in writing is required only where the
claim is likely to result in litigation or is presented in an amount
exceeding $15,000. In this event, the letter of acknowledgment will
state the date of receipt of the claim by the first agency of the Army
receiving the claim.
(ii) If it is reasonably clear to the office acknowledging receipt
that a claim filed under the FTCA is not cognizable thereunder; for
example, it is a maritime claim under Sec. 536.60, or it falls under
Secs. 536.20 through 536.35 or Secs. 536.70 through 536.81, the
acknowledgment will contain a statement advising the claimant of the
statute under which his or her claim will be processed. If it is not
clear which statute applies, a statement to that effect will be made,
and the claimant will be promptly advised on his or her remedy when a
decision is made. However, all potential maritime claims will be handled
in accordance with Sec. 536.5(h)(5).
(iii ) When a claim has been amended as set forth in
Sec. 536.5(f)(4), the amendment will be acknowledged in all cases.
Additionally, the claimant will be informed that the amendment
constitutes a new claim insofar as concerns the 6 months in which the DA
is granted the authority to make a final disposition under 28 U.S.C.
2675(a) and the claimant's option thereunder will not accrue until 6
months after the filing of the amendment.
(iv) When a claim is improperly presented, is incomplete or
otherwise does not meet the requirements set forth in Sec. 536.5(d), the
claimant or his or her representative will be promptly informed in
writing of the deficiencies and advised that a proper claim must be
filed within the 2 year statute of limitations.
(7) Investigation. Claims cognizable under this section will be
investigated and processed on a priority basis in order that settlement
if indicated may be accomplished within the 6 months prescribed by
statute.
(8) Advice to claimant. (i) A full explanation of claims procedures
and of the rights of the claimant will be made to the extent
necessitated by the amount and nature of the claim.
(ii) In a case where litigation is likely, or where this course of
action is preferred by the claimant, and it appears to be a proper case
for administrative settlement, the claimant will be advised as to the
advantages of administrative settlement. If the claim is within the
jurisdiction of a higher settlement authority, the claim will be
discussed with such authority prior to the furnishing of such advice.
The claimant should be familiarized with all aspects of administrative
settlement procedures including the administrative channels through
which his claim must be processed for approval. He or she may be advised
that administrative processing can result in more expeditious
processing, whereas litigation may take considerable time, particularly
in jurisdictions with crowded dockets.
(iii) If appropriate, he or she may be informed that a tentative
settlement can be reached for any amount above
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$25,000, subject to approval by the Attorney General. He or she should
be advised that administrative filing of the claim protects him under
the statute of limitations for purpose of litigation; suit can be filed
within 6 months after the date of mailing of notice of final denial by
the DA, thus potentially allowing negotiations to continue indefinitely.
An attorney representing a claimant should be advised of the limitations
on fees for purposes of administrative settlement (20 percent) and
litigation (25 percent). The attorney may also be advised that there is
no jury trial under the FTCA.
(9) Notification to claimant of action on claim. (i) The filing of
an administrative claim and its denial are prerequisite to filing suit.
Any suit must be filed not later than 6 months after notification by
certified or registered mail of the denial of the administrative claim.
Failure of a settlement authority to take final action on a properly
filed claim within 6 months may be treated by the claimant as a final
denial for the purposes of filing suit. If the claimant has provided
insufficient documentation to permit evaluation of the claim, written
notice should be given to this effect. Since administrative settlements
are a voluntary process, the preferred method of negotiating is to
attempt to exchange information on an open basis.
(ii) Upon final denial of a claim, or upon rejection by the claimant
of a partial allowance, and further efforts to reach a settlement are
not considered feasible (Sec. 536.5(h)(1)), the settlement authority
will inform the claimant of the action on his claim by certified or
registered mail. Notification will be made as set forth in
Sec. 536.11(b).
(iii) If a claim has been presented to the DA and, also, to other
Federal agencies, without any notification to the DA of this fact, final
action taken by the DA prior to that of any other agency is conclusive
on a claim presented to other agencies, unless another agency decides to
take further action to settle the claim. Such agency may treat the
matter as a reconsideration under 28 CFR 14.9(b), unless suit has been
filed. The foregoing applies likewise to DA claims in which another
Federal Agency has already taken final action.
(iv) If, after final denial by another agency, a claim is filed with
the DA, the new submission will not toll the 6 months limitation for
filing suit, unless the DA treats the second submission as a request for
reconsideration under paragraph (k)(9)(iv)(A) of this section.
(A) Reconsideration. (1) While there is no appeal from the action of
an approving or settlement authority under the FTCA and this section, an
approving or settlement authority may reconsider a claim upon request of
the claimant or someone acting in his behalf. Even in the absence of
such a request, an approving or settlement authority may on his own
initiative reconsider a claim. He may reconsider a claim which he
previously disapproved in whole or in part (even where a settlement
agreement has been executed) when it appears that his original action
was incorrect in law or fact based on the evidence of record at the time
of the action or subsequently received. If he determines that his
original action was incorrect, he 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.
(2) A successor approving or settlement authority may also
reconsider the original action on a claim but only on the basis of
fraud, substantial new evidence, errors in calculation or mistake
(misinterpretation) of law.
(3) A request for reconsideration must be submitted prior to the
commencement of suit and prior to the expiration of the 6-month period
provided in 28 U.S.C. 2401(b). Upon timely filing, the appropriate
authority shall have 6 months from the date of filing in which to make a
final disposition of the request, and the claimant's option under 28
U.S.C. 2675(a) shall not accrue until 6 months after the filing of the
request.
(4) A request for reconsideration should indicate fully the legal or
factual basis asserted as grounds for relief. Following completion of
any investigation or other action deemed necessary for an informed
disposition of the request, the approving or settlement authority will
reconsider the
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claim and attempt to settle it by granting such relief as may appear
warranted. When further settlement efforts appear unwarranted, the
entire file with a memorandum of opinion will be referred through claims
channels to the Commander, USARCS, and the claimant informed of such
referral.
(B) [Reserved]
Sec. 536.60 Maritime claims.
(a) Statutory authority. Administrative settlement or compromise of
admiralty and maritime claims in favor of and against the United States
by the Secretary of the Army or his designee is authorized by the Army
Maritime Claims Settlement Act (10 U.S.C. 4801-04, 4806, as amended).
(b) Related statutes. The Army Maritime Claims Settlement Act is
supplemented by the following statutes under which suits in admiralty
may be brought: the Suits in Admiralty Act of 1920 (41 Stat. 525, 46
U.S.C. 741-752); the Public Vessels Act of 1925 (43 Stat. 1112, 46
U.S.C. 781-790); the Act of 1948 Extending the Admiralty and Maritime
Jurisdiction (62 Stat. 496, 46 U.S.C. 740). Similar maritime claims
settlement authority is exercised by the Department of the Navy under 10
U.S.C. 7365, 7621-23 and by the Department of the Air Force under 10
U.S.C. 9801-9804, 9806.
(c) Scope. 10 U.S.C. 4802 provides for the settlement or compromise
of claims for--
(1) Damage caused by a vessel of, or in the service of, the DA or by
other property under the jurisdiction of the DA;
(2) Compensation for towage and salvage service, including contract
salvage, rendered to a vessel of, or in the service of, the DA or to
other property under the jurisdiction of the DA; or
(3) Damage caused by a maritime tort committed by any agent or
employee of the DA or by property under the jurisdiction of the DA.
(d) Claims exceeding $500,000. Claims against the United States
settled or compromised in a net amount exceeding $500,000 are not
payable hereunder, but will be investigated and processed under this
section, and, if approved by the Secretary of the Army, will be
certified by him to Congress.
(e) Claims not payable. A claim is not allowable under this section
which:
(1) Is for damage to, or loss or destruction of, property, or for
personal injury or death, resulting directly or indirectly from action
by the enemy, or by U.S. Armed Forces engaged in armed combat, or in
immediate preparation for impending armed combat.
(2) Is for personal injury or death of a member of the Armed Forces
of the United States or a civilian employee incurred incident to his
service.
(3) Is for personal injury or death of a Government employee for
whom benefits are provided by the FECA (5 U.S.C. 8101-8150).
(4) Is for personal injury or death of an employee, including
nonappropriated fund employees, for whom benefits are provided by the
Longshoremen's and Harbor Workers' Compensation Act (44 Stat. 1424, 33
U.S.C. 901).
(5) Has been made the subject of a suit by or against the United
States, except as provided in subparagraph (h)(2) of this section.
(6) Arises in a foreign country and was considered by the
authorities of a foreign country and final action taken thereon under
Article VIII of the NATO Status of Forces Agreement, Article XVIII of
the Treaty of Mutual Cooperation and Security between the United States
and Japan regarding facilities and areas and the Status of United States
Armed Forces in Japan, or other similar treaty or agreement, if
reasonable disposition was made of the claim.
(f) Claims under other laws and regulations. (1) Claims of military
personnel and civilian employees of the DOD and the Army, including
military and civilian officers and crews of Army vessels, for damage to
or loss of personal property occurring incident to their service will be
processed under the provisions of the Military Personnel and Civilian
Employees' Claims Act (31 U.S.C. 3721).
(2) Claims which are within the scope of this section and also
within the scope of the FCA (10 U.S.C. 2734) may be processed under that
statute when specific authority to do so has been obtained from the
Commander, USARCS. The request for such authority should be accompanied
by a copy of the report of the incident by the Marine Casualty
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Investigating Officer, or other claims investigator.
(g) Subrogation. (1) An assurer will be recognized as a claimant
under this section to the extent that it has become subrogated by
payment to, or on behalf of, its assured, pursuant to a contract of
insurance in force at the time of the incident from which the claim
arose. An assurer and its assured may file a claim either jointly or
separately. Joint claims must be asserted in the names of, and must be
signed by, or on behalf of, all parties; payment then will be made
jointly. If separate claims are filed, payment to each party will be
limited to the extent of such party's undisputed interest.
(2) For the purpose of determining authority to settle or compromise
a claim, the payable interests of an assurer (or assurers) and the
assured represent merely separable interests, which interests in the
aggregate must not exceed the amount authorized for administrative
settlement or compromise.
(3) The policies set forth in paragraphs (g) (1) and (2) of this
section with respect to subrogation arising from insurance contracts are
applicable to all other types of subrogation.
(h) Limitation of settlement. (1) The period for effecting an
administrative settlement under the Army Maritime Claims Settlement Act
is subject to the same limitation as that for beginning an action under
the Suits in Admiralty Act; that is, a 2-year period from the date of
the origin of the cause of action. The claimant must have agreed to
accept the settlement, and it must be approved for payment by the
Secretary of the Army or his designee prior to the end of such period;
otherwise, thereafter the cause of action ceases to exist, except under
the circumstances set forth in paragraph (h)(2) of this section. The
presentation of a claim, or its consideration by the DA, neither waives
nor extends the 2-year limitation period.
(2) In the event that an action has been filed in a U.S. district
court before the end of the 2-year statutory period, an administrative
settlement may be negotiated by the Commander, USARCS, with the
claimant, even though the 2-year period has elapsed since the cause of
action accrued, provided the claimant obtains the written consent of the
appropriate office of the Department of Justice charged with the defense
of the complaint. Payment may be made upon dismissal of the complaint.
(3) When a claim under this section, notice of damage, invitation to
a damage survey, or other written notice of an intention to hold the
United States liable is received, the receiving installation, office, or
person immediately will forward such document to the Commander, USARCS.
USARCS will promptly advise the claimant or potential claimant in
writing of the comprehensive application of the time limit.
(4) When a claim under this section for less than $10,000 is
presented to a Corps of Engineers office and thus may be appropriate for
action by the Corps of Engineers pursuant to the delegation of authority
set forth in paragraph (i)(2) of this section, the receiving Corps of
Engineers office will promptly advise the claimant in writing of the
comprehensive application of the time limit (unless such has already
been done by USARCS).
(i) Delegation of authority. (1) Where the amount to be paid is not
more than $10,000, claims under this section may be settled or
compromised by the Commander, USARCS, chief of overseas command claims
service, or his designee.
(2) When a claim under this section arises from a civil works
activity of the Corps of Engineers, engineer area claims offices are
delegated authority to approve and pay in full, or in part, subject to
the execution of an appropriate settlement agreement, claims presented
for $10,000 or less, and compromise and pay claims regardless of the
amount claimed, provided an award of $10,000 or less is accepted by the
claimant in full satisfaction and final settlement of the claim, subject
to such limitations as may be imposed by the Chief of Engineers.
Meritorious claims arising from civil works activities of the Corps of
Engineers will be paid from Corps of Engineers funds.
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Subpart C--Claims Arising From Activities of National Guard Personnel
While Engaged in Duty or Training
Sec. 536.70 Statutory authority.
The statutory authority for this chapter is contained in the Act of
13 September 1960 (74 Stat. 878, 32 U.S.C. 715), commonly referred to as
the National Guard Claims Act (NGCA), as amended by Public Law 90-486,
13 August 1968 (82 Stat. 756), Public Law 90-525, 26 September 1968 (82
Stat. 877), Public Law 91-312, 8 July 1970 (84 Stat. 412), and Public
Law 93-336, 8 July 1974, (88 Stat. 291); and the Act of 8 September 1961
(75 Stat. 488, 10 U.S.C. 2736) as amended by Public Law 90-521, 26
September 1968 (82 Stat. 874), Public Law 97-124, 29 December 1981 (95
Stat. 1666), and Public Law 98-564, 30 October 1984 (98 Stat. 2918).
Sec. 536.71 Definitions.
For purposes of Secs. 536.70 to 536.81 the following terminology
applies:
(a) ARNG personnel. A member of the ARNG engaged in training or duty
under 32 U.S.C. 316, 502, 503, 504, 505, or 709.
(b) Claimant. An individual, partnership, association, corporation,
country, State, Commonwealth, territory or a political subdivision
thereof, or the District of Columbia, presenting a claim and meeting the
conditions set forth in Sec. 536.5. The term does not include the U.S.
Government, any of its instrumentalities, except as prescribed by
statute, or a State, commonwealth, territory or the District of Columbia
which maintains the unit to which the ARNG personnel causing the injury
or damage are assigned. This exclusion does not ordinarily apply to a
unit of local government which does not control the ARNG organization
involved. As a general rule, a claim by a unit of local government other
than a State, commonwealth or territory will be entertained unless the
item claimed to be damaged or lost was procured or maintained by State,
commonwealth, or territorial funds.
Sec. 536.72 Scope.
(a) Sections 536.70 through 536.81 apply in all places and set forth
the procedures to be followed in the settlement and payment of claims
for death, personal injury, or damage to or loss or destruction of
property caused by members or employees of the ARNG, or arising out of
the noncombat activities of the ARNG when engaged in training or duty
under 32 U.S.C. 316, 502, 503, 504, 505, or 709, provided such claim is
not for personal injury or death of a member of the Armed Forces or
Coast Guard, or a civilian officer or employee whose injury or death is
incident to service.
(b) A claimant dissatisfied with an administrative settlement under
Secs. 536.70 through 536.81 as the result of activities of the ARNG of a
State, Commonwealth, or territory is not entitled to judicial relief in
an action against the United States. Whether he or she has a legal cause
of action or may file an administrative claim against such a political
entity depends upon controlling local law.
(c) Claims arising out of activities of the ARNG when performing
duties at the call of the governor of a State maintaining the unit are
not cognizable under Secs. 536.70 through 536.81 or any other law,
regulation or appropriation available to the Army for the payment of
claims. Such claims should be returned or referred to the authorities of
the State for whatever action they choose to take, and claimants should
be informed of the return or referral. Care should be taken to determine
the status of the unit and members at the time the claims incident
occurred, particularly in civil emergencies as units called by the
governor are sometimes ``federalized'' during the call-up. If the unit
was ``federalized'' at the time the claim incident occurred, the claim
will be cognizable under Secs. 536.20 through 536.35, 536.50, or 536.90
through 536.97 or other sections pertaining to the Active Army.
Sec. 536.73 Claims payable.
(a) Tort claims. All claims for personal injuries, death, or damage
to or loss of real or personal property, arising out of incidents
occurring on or after 29 December 1981, based on negligent or
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wrongful acts or omissions of ARNG personnel acting within the scope of
employment, within the United States while engaged in training or duty
under 32 U.S.C. 316, 502, 503, 504, 505, or 709 will be processed under
the FTCA, Sec. 536.50. Such claims arising before 29 December 1981 will,
except as modified herein, be processed and settled in accordance with
the provisions of Secs. 536.20 through 536.35.
(b) Noncombat activities. A claim incident to the noncombat
activities of the ARNG while engaged in duty or training under 32 U.S.C.
316, 502, 503, 504, 505, or 709 may be settled under Secs. 536.70
through 536.81. ``Noncombat activities'' are defined in Sec. 536.3.
(c) Subrogated claims. Subrogated claims will be processed as
prescribed in Sec. 536.5(b).
(d) Advance payments. Advance payments in partial settlement of
meritorious claims to alleviate immediate hardship are authorized as
provided in Sec. 536.13.
Sec. 536.74 Claims not payable.
The type of claims listed in Sec. 536.24 as not payable are also not
payable under Secs. 536.70 through 536.81.
Sec. 536.75 Notification of incident.
Except where claims are regularly paid from State sources, for
example, insurance, court of claims, legislative committee, etc., the
appropriate adjutant general will ensure that each incident which may
give rise to a claim cognizable under Secs. 536.70 through 536.81 is
reported immediately by the most expeditious means to the area claims
office in whose geographic area the incident occurs or to a claims
processing office designated by the area claims office. The report will
contain the following information:
(a) Date of incident.
(b) Place of incident.
(c) Nature of incident.
(d) Names and organizations of ARNG personnel involved.
(e) Names of potential claimant(s).
(f) A brief description of any damage, loss, or destruction of
private property, and any injuries or death of potential claimants.
Sec. 536.76 Claims in which there is a State source of recovery.
Where there is a remedy against the State, as a result of either
waiver of sovereign immunity or where there is liability insurance
coverage, the following procedures apply:
(a) Where the State is insured, direct contact with State or ARNG
officials rather than the insurer is desirable. Regular procedures will
be established and followed wherever possible. Such procedures should be
agreed on by both local authorities and the appropriate claims
authorities subject to concurrence by the Commander, USARCS. Such
procedures will be designed to ensure that local authorities and U.S.
authorities do not issue conflicting instructions for processing claims,
and whenever possible and in accordance with governing local and Federal
law, a mutual arrangement for disposition of such claims as in paragraph
(c) of this section is worked out. Amounts recovered or recoverable by
claimant from any insurer (other than claimant's insurer who has
obtained no subrogated interest against the United States) will be
deducted from the amount otherwise payable.
(b) If there is a remedy against the State or its insurer, the
claimant may be advised of that remedy. If the payment by the State or
its insurer does not fully compensate claimant, an additional payment
may be made under Secs. 536.70 through 536.81. If liability is clear and
claimant settles with the State or its insurer for less than the maximum
amount recoverable, the difference between the maximum amount
recoverable from the State or its insurer and the settlement normally
will be also deducted from the payment by the United States.
(c) If the State or its insurer desires to pay less than their
maximum jurisdiction or policy limit on a basis of 50 percent or more of
the actual value of the entire claim, any payment made by the United
States must be made directly to the claimant. This can be accomplished
by either having the United States pay the entire claim and have the
State or its insurer reimburse its portion to the United States, or by
having each party pay its agreed share directly to the claimant. If the
State
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or its insurer desires to pay less than 50 percent of the actual value
of the claim, the procedure set forth in paragraph (d) of this section
will be followed.
(d) If there is a remedy against the State and the State refuses to
make payment, or there is insurance coverage and the claimant has filed
an administrative claim against the United States, forward file with a
memorandum of opinion to the Commander, USARCS, including information as
to the status of any judicial or administrative action the claimant has
taken against the State or its insurer. The Commander, USARCS, will
determine whether the claimant will be required to exhaust his remedy
against the State or its insurer, or whether the claim against the
United States can be settled without such requirement. If the Commander,
USARCS, determines to follow the latter course of action, he will also
determine whether an assignment of the claim against the State or its
insurer will be obtained and whether recovery action will be taken. The
State or its insurer will be given appropriate notification in
accordance with State law necessary to obtain contribution of
indemnification.
Sec. 536.77 Claims against the ARNG tortfeasor individually.
The procedures set forth in Sec. 536.9(f) are applicable. With
respect to claims arising before 29 December 1981, an ARNG driver acting
pursuant to the authorities cited in Sec. 536.73(a) is not protected by
the provisions of the Drivers Act (28 U.S.C. 2670(b)) and the driver may
be sued individually in State court. When this situation occurs, it
should be monitored closely by ARNG authorities. If possible an early
determination will be made as to whether any private insurance of the
ARNG tortfeasor is applicable. Where such insurance is applicable and
the claim against the United States is of doubtful validity, final
actions will be withheld pending resolution of the demand against the
ARNG tortfeasor. If, in the opinion of the claims approving or
settlement authority, such insurance is applicable and the claim against
the United States is payable in full or in a reduced amount, settlement
efforts will be made either together with the insurer or singly by the
United States. Any settlement will not include amounts recovered or
recoverable as in Sec. 536.9. If the insurance is not applicable,
settlement or disapproval action will proceed without further delay.
Sec. 536.78 When claim must be presented.
A claim may be settled under Secs. 536.70 through 536.81 only if
presented in writing within 2 years after it accrues, except that if it
accrues in time of war or armed conflict, or if war or armed conflict
intervenes within 2 years after it accrues, and if good cause is shown,
the claim may be presented not later than 2 years after war or armed
conflict is terminated. As used in this section, a war or armed conflict
is one in which any Armed Force of the United States is engaged. The
dates of commencement and termination of an armed conflict must be
established by concurrent resolution of Congress or by determination of
the President.
Sec. 536.79 Where claim must be presented.
A claim must be presented to the appropriate Federal agency. Receipt
of a written claim by any full time officer or employee of the National
Guard will be considered receipt. However, the statute of limitations is
tolled if a claim is filed with a State agency, the claim purports to be
under the NGCA and it is forwarded to the Army within 6 months, or the
claimant makes inquiry of the Army concerning the claim within 6 months.
If a claim is received by a DA official who is not a claims approval or
settlement authority, the claim will be transmitted without delay to the
nearest approval or settlement authority.
Sec. 536.80 Procedures.
(a) The form of a claim under Secs. 536.70 through 536.81 will be as
described in Sec. 536.5 (d) and (e).
(b) So far as they are not inconsistent with Secs. 536.70 through
536.81, the guidance set forth in Secs. 536.10 through 536.12 will be
followed in processing a claim under Secs. 536.70 through 536.81.
(c) The following provisions are applicable to claims under
Secs. 536.70
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through 536.81 and are hereby incorporated by reference:
(1) Sec. 536.28 (applicable law);
(2) Sec. 536.29 (determination of quantum);
(3) Sec. 536.31 (claims over $100,000);
(4) Sec. 536.32 (settlement procedures);
(5) Sec. 536.33 (attorney fees).
Sec. 536.81 Settlement agreement.
Procedures concerning settlement agreements will be in accordance
with Sec. 536.10, except that the agreement will be modified to include
a State and its National Guard in most cases. A copy of the agreement
will be furnished to State authorities and the individual tortfeasor.
Subpart D--Claims Incident to Use of Government Vehicles and Other
Property of the United States Not Cognizable Under Other Law
Sec. 536.90 Statutory authority.
The statutory authority for Secs. 536.90 through 536.97 is contained
in the act of 9 October 1962 (76 Stat. 767, 10 U.S.C. 2737). This
statute is commonly called the ``Nonscope Claims Act.'' For the purposes
of Secs. 536.90 through 536.97, a Government installation is a facility
having fixed boundaries owned or controlled by the Government, and a
vehicle includes every description of carriage or other artificial
contrivance used, or capable of being used, as a means of transportation
on land (1 U.S.C. 4).
Sec. 536.91 Scope.
(a) Sections 536.90 through 536.97 prescribe the substantive bases
and special procedural requirements for the administrative settlement
and payment, in an amount not more than $1,000, of any claim against the
United States not cognizable under any other provision of law for damage
to or loss of property, or for personal injury or death, caused by
military personnel or civilian employees of the DA or by civilian
employees of the DoD incident to the use of a United States vehicle at
any place or incident to the use of other United States property on a
Government installation.
(b) Any claim in which there appears to be a disputed issue relating
to whether the employee was acting within the scope of employment will
be considered under Secs. 536.20 through 536.35, Sec. 536.50, or
Secs. 536.70 through 536.81 as applicable. Only when all parties, to
include an insurer, agree that there is no ``in scope'' issue will
Secs. 536.90 through 536.97 be used.
Sec. 536.92 Claims payable.
(a) General. A claim for personal injury, death, or damage to or
loss of property, real or personal, is payable under Secs. 536.90
through 536.97 when
(1) Caused by the act or omission, negligent, wrongful, or otherwise
involving fault, of military personnel of the DA or the ARNG, or
civilian employees of the DA or the ARNG--
(i) Incident to the use of a vehicle of the United States at any
place.
(ii) Incident to the use of any other property of the United States
on a Government installation.
(2) The claim may not be settled under any other claims statute and
claims regulation available to the DA for the administrative settlement
of claims.
(3) The claim has been determined to be meritorious, and the
approval or settlement authority has obtained a settlement agreement in
an amount not in excess of $1,000 in full satisfaction of the claim
prior to approval of the claim for payment.
(b) Personal injury or death. A claim for personal injury or death
is allowable only for the cost of reasonable medical, hospital, or
burial expenses actually incurred and not otherwise furnished or paid by
the United States.
(c) Property loss or damage. A claim for damage 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.
A claim is not allowable under Secs. 536.90 through 536.97 that--
(a) Results wholly or partly from the negligent or wrongful act of
the claimant, his or her agent or employee. The doctrine of comparative
negligence is not applicable.
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(b) Is for medical, hospital, and burial expenses furnished or paid
by the United States.
(c) Is for any element of damage pertaining to personal injuries or
death other than provided in Sec. 536.92(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 a substitute
property, for example, a rental.
(e) Is legally recoverable by the claimant under an indemnifying law
or indemnity contract. If the claim is legally recoverable in part, that
part recoverable by the claimant is not payable.
(f) Is a subrogated claim.
Sec. 536.94 When claim must be presented.
A claim may be settled under Secs. 536.90 through 536.97 only if it
is presented in writing within 2 years after it accrues.
Sec. 536.95 Procedures.
So far as not inconsistent with Secs. 536.90 through 536.97, the
procedures for the investigation and processing of claims contained in
Secs. 536.1 through 536.13 will be followed.
Sec. 536.96 Settlement agreement.
A claim may not be paid under Secs. 536.90 through 536.97 unless the
amount tendered is accepted by the claimant in full satisfaction. A
settlement agreement (Sec. 536.10) is required before payment.
Sec. 536.97 Reconsideration.
(a) An approval or settlement authority may reconsider the quantum
of a claim upon request of the claimant or someone acting in his behalf.
In the absence of such a request, an approval or settlement authority
may on his own initiative reconsider the quantum of a claim.
Reconsideration may occur even in a claim which was previously
disapproved in whole or in part (even though a settlement agreement has
been executed) when it appears that his or her original action was
incorrect in law or fact based on the evidence of record at the time of
the action or subsequently received. If he or she determines that the
original action was incorrect, he or she will modify the action and, if
appropriate, make a supplemental payment. If the original action is
determined correct, the claimant will be so notified. The basis for
either action will be stated in a memorandum included in the file.
(b) An approval or settlement authority may reconsider the
applicability of Secs. 536.90 through 536.97 to a claim upon request of
the claimant or someone acting in his behalf, or on his own initiative.
Such reconsideration may occur even though all parties had previously
agreed per Sec. 536.91(b) when it appears that this agreement was
incorrect in law or fact based on the evidence of record at the time of
the agreement or subsequently received. If he or she determines the
agreement to be incorrect, the claim will be reprocessed under the
applicable sections of this regulation. If he or she determines the
agreement to have been correct, that is, that Secs. 536.90 through
536.97 are applicable, he or she will so advise the claimant. This
advice will include reference to any appeal or judicial remedies
available under the section which the claimant alleges the claim should
be processed under.
(c) A successor or higher approval or settlement authority may also
reconsider the original action on a claim as in paragraph (a) or (b) of
this section, but only on the basis of fraud substantial new evidence,
errors in calculation or mistake (misinterpretation) of law.
(d) A request for reconsideration should indicate fully the legal or
factual basis asserted as grounds for relief.