[Title 32 CFR 536.40]
[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]
[Subpart B - Claims Arising From Activities of Military or Civilian]
[Sec. 536.40 - Claims under Article 139, Uniform Code of Military Justice.]
[From the U.S. Government Printing Office]


32NATIONAL DEFENSE32002-07-012002-07-01false536.40Sec. 536.40NATIONAL DEFENSEDEPARTMENT OF THE ARMYCLAIMS AND ACCOUNTSCLAIMS AGAINST THE UNITED STATESClaims Arising From Activities of Military or Civilian
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

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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

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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

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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.