[Federal Register Volume 59, Number 52 (Thursday, March 17, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-6019] [[Page Unknown]] [Federal Register: March 17, 1994] _______________________________________________________________________ Part II Department of Defense _______________________________________________________________________ Department of the Army _______________________________________________________________________ 32 CFR Part 536 The Army Claims System; Proposed Rule DEPARTMENT OF DEFENSE Department of the Army 32 CFR Part 536 The Army Claims System AGENCY: Department of the Army, DOD ACTION: Proposed Rule. ----------------------------------------------------------------------- SUMMARY: The Department of the Army announces a revision and consolidation of 32 CFR parts 536, Claims Against the United States and 537, Claims on Behalf of the United States in order to bring them in line with new policies and procedures being promulgated in Army Regulation 27-20, Claims. This revision retains part 536 as The Army Claims System. Part 537 will be removed and held in reserve for future use. This part prescribes the policies, procedures, and responsibilities for investigating, processing, and settling claims against and in favor of the United States under the authority conferred by certain statutes, regulations, international and interdepartmental agreements, and Department of Defense directives. It is intended to ensure that claims are properly investigated, adjudicated objectively and fairly, and either paid or collection action initiated. Because of the complexity and length of changes and consolidation of parts 536 and 537, a breakout of the scope or responsibilities of each subpart to this whole part is listed in the Supplemental Information part of this submission. JAG offices, individuals and/or organizations currently using Army Regulation 27-20 or the current issue of 32 CFR part 536 and 537, dated 1 July 1993, should review this revision against the current versions in order to determine the additions, deletions or other changes being made. By reviewing the supplemental information portion, reading of the complete part becomes necessary in order to understand the entire part. DATES: Comments must be received by the Army Claims Service not later than April 18, 1994. ADDRESSES: Director, U.S. Army Claims Service, Building 4411, Llewellyn Ave., Fort Meade, Maryland 20755-5360. FOR FURTHER INFORMATION CONTACT: LTC Cashiola, (301) 677-7622 or 7960. SUPPLEMENTARY INFORMATION: (Subpart A). Subpart A is the introduction of part 536. (Subpart B). Subpart B describes the investigation and processing of claims investigation and the importance of claims investigation. (Subpart C). This subpart is applicable in all locations and prescribes the substantive bases and special procedural requirements for the settlement of claims against the United States for death; personal injury; or damage, loss, or destruction of property caused by military personnel or civilian employees of the DA acting within the scope of their employment and incident to the noncombat activities of the DA, provided such claim is not for personal injury or death of a member of the Armed Forces or Coast Guard or civilian officer or employee whose injury or death is incident to service. (Subpart D). This subpart prescribes the substantive bases and special procedural requirements for the administrative settlement of claims against the United States under the FTCA and the implementing Attorney General's Regulations based on death, personal injury, or damage to or loss of property that accrues on or after 18 January 1967. (Subpart E). This subpart prescribes the substantive bases and special procedural requirements for the administrative settlement and payment, in an amount not more than $1,000, of any claim against the United States not cognizable under any other provision of law for damage or loss of property, or for personal injury or death caused by a member or employee of the DA incident to the use of a U.S. vehicle at any location or incident to the use of other U.S. property on a Government installation. (Subpart F). This subpart is applicable in all places and sets forth the procedures to be followed in the settlement and payment of claims for death, personal injury, or damage, loss, or destruction of property caused by members or employees of the Army National Guard; noncombat activities of the Army National Guard when engaged in training or duty under 32 U.S.C. provided such claim is not for personal injury or death of a member of the Armed Forces or Coast Guard and an employee whose injury or death is incident to service. (Subpart G). This subpart provides procedures and defines responsibilities for the investigation, processing, and settlement of claims arising out of acts or omissions of members of a foreign military force or civilian component present in the United States, or a territory, commonwealth, or possession thereof under the provisions of reciprocal international agreements which contain claims settlement provisions applicable to claims arising in the United States such as Article VIII of the Agreement Regarding the Status of Forces of Parties to the North Atlantic Treaty. (Subpart H). This subpart deals with claims against the United States. Title 10, U.S.C., section 4802, provides for the settlement or compromise of claims for damage caused by a vessel of, or in the service of, the Department of the Army (DA) or by other property under the jurisdiction of the DA; compensation for towage and salvage service, including contract salvage, rendered to a vessel of, or in the service of, the DA or other property under the jurisdiction of the DA or damage caused by a maritime tort committed by any agent or employee of the DA or by property under the jurisdiction of the DA. (Subpart I). This subpart sets for the standards to be applied and the procedures to be followed in the processing of claims for damage, loss, or destruction of property owned by or in the lawful possession of an individual whether civilian or military, a business, a charity, or a State or local government, where the property was wrongfully taken or willfully damaged by military members of DA. (Subpart J). This subpart implements the Foreign Claims Act (FCA) and authorizes the administrative settlement of claims of inhabitants of a foreign country, or by a foreign country or a political subdivision thereof, against the United States for personal injury or death or property damages caused outside the United States, its territories, commonwealths, or possessions by military personnel or civilian employees of the DA, or claims which arise incident to noncombat activities of the Army. (Subpart K). This subpart deals with personal claims and related recovery actions, delegation of authority and prescribes the substantive bases and special procedural rules for the administrative settlement of claims against the United States submitted by the Active Army, Army National Guard and U.S. Army Reserve personnel, and civilian employees of DOD and DA for damage to or loss of personal property incident to their service. (Subpart L). This subpart sets forth procedures to be followed in the settlement and payment of claims by employees of nonappropriated fund activities for the loss of or damage to personal property incident to their employment, and for claims generated by the acts or omissions of the employees of such funds. (Subpart M). This subpart establishes the authority and responsibility for affirmative claims. This subpart prescribes procedures for the administrative determination, assertion, collection, settlement, and waiver of claims in favor of the United States for damage to, loss, or destruction of Army property, and for the recovery of the reasonable value of medical care furnished or to be furnished by the United States under the statutes cited in section 536.213. (Subpart N). This subpart sets forth procedures for all aspects of records management to include, arrangement of files, file management, maintenance of and retrieval of files, files disposition, etc., and monthly claims reporting system as pertains to Claims Office Administration. Executive Order 12291 This proposed rule has been reviewed under Executive Order 12291. The effect of this proposed rule on the economy will be less than $100 million. Regulatory Flexibility Act This proposed rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980. This action does not have a significant impact on a substantial number of small entities. Paperwork Reduction Act This proposed rule does not contain reporting or recordkeeping requirements subject to approval by the Office of the Management and Budget under the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3507). List of Subjects in 32 CFR Part 536 Claims, Foreign claims, Tort claims. 32 CFR part 536 is proposed to be revised to read as follows: PART 536--THE ARMY CLAIMS SYSTEM Subpart A--The Army Claims System Sec. General 536.1 Purpose. 536.2 References. 536.3 Explanation of abbreviations and terms. 536.4 Types of claims. 536.5 Command and organizational relationships. 536.6 Designation of claims attorneys. Responsibilities, Operations, Policies, and Guidance 536.7 Responsibilities. 536.8 Operations of claims components. 536.9 Claims policies. 536.10 Guidance concerning disclosure of information and assistance. 536.11 Single service claims responsibility (DODD 5515.8). 536.12 Cross-servicing of claims (DODD 5515.3). Subpart B--Investigation and Processing of Claims Investigation 536.13 Importance of the claims investigation. 536.14 Reasons for investigation. 536.15 Immediate investigation requirement. 536.16 Unit claims officers. 536.17 Claims office responsibility. 536.18 Transfer of responsibility. 536.19 Investigative procedures. Claims Receipt and Disposition 536.20 Presentation. 536.21 Disposition of claims. 536.22 Claims memorandum of opinion. 536.23 Actions. Liability and Quantum Determinations 536.24 General considerations. 536.25 Incident to service exclusionary rule. 536.26 Property damage appraisers. 536.27 Independent medical examinations. 536.28 Effect on award of other payments to claimant. 536.29 Claims with more than one potential source of recovery. Settlement Procedures 536.30 Settlement. 536.31 Claims forwarded without settlement. 536.32 Settlement agreement. 536.33 Vouchers. 536.34 Accounting codes. 536.35 Payment. 536.36 Effect of payment. 536.37 Notification as to denial of claims. Small Claims 536.38 General. 536.39 Investigation. 536.40 Report of investigation. 536.41 Processing. 536.42 Settlement agreement. 536.43 Payment. Advance Payments 536.44 Authority. 536.45 Conditions for advance payment. 536.46 Authorization. 536.47 Advance payment acceptance agreement. Subpart C--Claims Cognizable Under the Military Claims Act 536.48 Statutory authority. 536.49 Scope. 536.50 Claims payable. 536.51 Claims not payable. 536.52 Claims having multiple remedies. 536.53 Presentation of claim. 536.54 Procedures. 536.55 Law applicable to liability. 536.56 Measure of damages for property claims. 536.57 Measure of damages in injury or death claims arising in the United States or its possessions. 536.58 Measure of damages in injury or death claims arising in foreign countries. 536.59 Failure to substantiate a claim. 536.60 Structured settlement. 536.61 Settlement authority. 536.62 Claims over $100,000. 536.63 Settlement procedures. 536.64 Action on appeal. 536.65 Cross-servicing of claims. 536.66 Attorney fees. 536.67 Payment of costs, settlements, and judgments related to certain medical malpractice claims. 536.68 Payment of costs, settlements, and judgments related to certain legal malpractice claims. Subpart D--Claims Cognizable Under the Federal Tort Claims Act 536.69 Authority. 536.70 Scope. 536.71 Claims payable. 536.72 Law applicable. 536.73 Subrogation. 536.74 Indemnity or contribution. 536.75 Claims not payable. 536.76 Claims under other laws and regulations. 536.77 Procedures. 536.78 Payment of claims. 536.79 Acceptance of award. 536.80 Delegation of authority. 536.81 Consultation with the Department of Justice. 536.82 Reconsideration. Subpart E--Claims Involving Government Vehicles and Property Not Cognizable Under Other Law 536.83 Statutory authority. 536.84 Scope. 536.85 Claims payable. 536.86 Claims not payable. 536.87 When claim must be presented. 536.88 Procedures. 536.89 Settlement agreement. 536.90 Delegation of authority. 536.91 Reconsideration. Subpart F--Claims Arising from Activities of the Army National Guard 536.92 Statutory authority. 536.93 Scope. 536.94 Claims payable. 536.95 Claims not payable. 536.96 Claims under other subparts. 536.97 Notification of incident. 536.98 Investigation. 536.99 Claims in which there is a State source of recovery. 536.100 Claims against the ARNG tortfeasor individually. 536.101 When claims must be presented. 536.102 Where claims must be presented. 536.103 Procedures. 536.104 Settlement agreement. Subpart G--Claims Under Status of Forces and Other International Agreements General 536.105 Statutory authority. Claims Arising in the United States 536.106 Scope. 536.107 Notification of incidents. 536.108 Liaison with sending State representatives. 536.109 Investigations. 536.110 Claims procedures. 536.111 Settlement authority. 536.112 Advance payments. 536.113 Litigation. 536.114 Assistance to foreign forces. Claims Against the United States Arising Overseas 536.115 Scope. 536.116 Claims procedures. 536.117 Responsibilities. 536.118 Reimbursements for nonappropriated funds. 536.119 Reimbursement for Coast Guard activities. Subpart H--Maritime Claims 536.120 Statutory authority. 536.121 Related statutes. Claims Against the United States 536.122 Scope. 536.123 Claims exceeding $500,000. 536.124 Claims not payable. 536.125 Claims under other laws and regulations. 536.126 Subrogation. 536.127 Limitation of settlement. 536.128 Approval authority. Claims in Favor of the United States 536.129 Scope. 536.130 Claims exceeding $500,000. 536.131 Civil works activities. 536.132 Delegation of authority. 536.133 Demands. Investigations and Reports 536.134 Procedure. 536.135 Reports. 536.136 Form of claim. Subpart I--Claims Under Article 139, Uniform Code of Military Justice 536.137 Statutory authority. 536.138 Purpose. 536.139 Effect of disciplinary action. 536.140 Claims cognizable. 536.141 Claims not cognizable. 536.142 Limitations on assessments. 536.143 Procedure. 536.144 Reconsideration. Subpart J--Claims Cognizable Under the Foreign Claims Act General 536.145 Statutory authority. 516.146 Scope. 536.147 Claims cognizable under other subparts. 536.148 Claims provisions of treaties and agreements. 536.149 Presentation of claims. 536.150 Form of claims. 536.151 Claimants. 536.152 Claims payable. 516.153 Claims not payable. 536.154 Compensation. 536.155 Computation of amount. Foreign Claims Commissions 536.156 Appointment and functions. 536.157 Composition. 536.158 Qualification of members. 536.159 Delegation of authority. 536.160 Advance payments. Subpart K--Personnel Claims and Related Recovery Actions General 536.161 Authority. 536.162 Delegation of authority. 536.163 Scope. 536.164 Claimants. 536.165 Claims cognizable. 536.166 Claims not cognizable. 536.167 Time prescribed for filing. 516.168 Form of claim. 536.169 Presentation. Evaluation, Adjudication, and Settlement of Claims 536.170 Policy. 536.171 Preliminary findings required. 536.172 Guides for computing amounts allowable. 536.173 Ownership or custody of property. 536.174 Determination of compensation. 536.175 Cognizable incidental expenses. 536.176 Property recovered. 536.177 Companion claims. 536.178 Emergency partial payments. 536.179 Personnel claims memorandum. 536.180 Reconsideration. 536.181 Judge advocate procedures responsibilities. 536.182 Finality of settlement. Recovery From Third Party 536.183 Scope. 536.184 Duties and responsibilities. 516.185 Determination of liability. 536.186 Exclusions of liability. 536.187 Limits of liability. 536.188 Settlement procedures in recovery actions. 536.189 Payment to the claimant beyond the statutory limit. 536.190 Reimbursements to claimants and insurers from money received. 536.191 Recovery action against a claimant. 536.192 Claims arising from packing and containerization contract shipments. 536.193 Claims caused by stevedoring contractors. 536.194 Claims arising from intra-theater shipments. 536.195 Claims against ocean carriers. 536.196 Centralized recovery program procedures. 536.197 Offset actions. 536.198 Compromise or termination of recovery actions. 536.199 Terms and abbreviations. 536.200 Required references. Subpart L--Nonappropriated Fund (NAF) Claims Claims Against NAF Activities 536.201 General. 536.202 Claims by employees for losses incident to employment. 536.203 Claims generated by the acts or omissions of employees. 536.204 Persons generating liability. 536.205 Claims payable from appropriated funds. 536.206 Settlement. 536.207 Payment. 536.208 Claims arising from activities of nonappropriated fund contractors. 536.209 Non-NAFI RIMP claims. 536.210 Claims cognizable. 536.211 Procedures. 536.212 Delegation of authority. Subpart M--Affirmative Claims General 536.213 Authority. 536.214 Recovery judge advocate/attorney. 536.215 Purpose and policy. 536.216 Delegation of authority. 536.217 Basic considerations. 536.218 Claims against certain prospective defendants. Property Claims 536.219 General. 536.220 Repayment in kind. 536.221 Property damage predemand procedures. Medical Care Claims 536.222 General. 536.223 Recovery rights under the FMCRA. 536.224 Identification of potential medical care recovery claims. 536.225 Medical care procedures following identification. 536.226 Relations with the injured party. 536.227 The MTF Third Party Recovery Program (TPCP). Recovering and Depositing on Claims 536.228 Post demand procedures. 536.229 Settling affirmative claims. 536.230 Litigation. 536.231 Administrative matters. Subpart N--Claims Office Administration Records and File Management 536.232 Records. 536.233 Arrangement of claims files. 536.234 Disposition of claims files. 536.235 Retrieval of claims files. 536.236 Certified and registered mail. 536.237 Maintenance of claims files. Monthly Claims Reporting System 536.238 General. 536.239 Reporting requirements. 536.240 Error reports. 536.241 Preparation. Management of Claims Expenditure Allowance (CEA) 536.242 General. 536.243 CEA reporting requirements. 536.244 Solatia payment. Appendix A to Part 536--References Appendix B to Part 536--Glossary Authority: 10 U.S.C. 939, 2733, 2734, 2734a, 2736, 2737, 3012, 4801 through 4804, and 4806; 28 U.S.C. 1346(b), 2401(b), 2402, 2671 through 2680; and 32 U.S.C. 715. Subpart A--The Army Claims System General Sec. 536.1 Purpose. This part prescribes the policies, procedures, and responsibilities for investigating, processing, and settling claims against and in favor of the United States under the authority conferred by certain statutes, regulations, international and interdepartmental agreements, and Department of Defense (DOD) directives. It is intended to ensure that claims are properly investigated, adjudicated objectively and fairly, and either paid or collection action initiated. Sec. 536.2 References. Required and related publications and prescribed and referenced forms are listed in appendix A to this part. Sec. 536.3 Explanation of abbreviations and terms. Abbreviations and special terms used in this regulation are explained in appendix B to this part. Sec. 536.4 Types of claims. (a) This regulation covers the following type of claims: (1) Claims cognizable under the following claims settlement authorizations: (i) The Military Claims Act (MCA), 10 U.S.C. 2733. (See subpart C.) (ii) The Federal Tort Claims Act (FTCA), 28 U.S.C. 2671-2680. (See subpart D.) (iii) The Act of 9 October 1962, 10 U.S.C. 2737. (See subpart E.) (iv) The National Guard Claims Act (NGCA), 32 U.S.C. 715. (See subpart F.) (v) Title 10, United States Code (U.S.C.), section 2734a and 2734b. (See subpart G.) (vi) The Maritime Claims Settlement Act, 10 U.S.C. 4801-4804, 4806. (See subpart H.) (vii) Article 139, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 939. (See subpart I.) (viii) The Foreign Claims Act (FCA), 10 U.S.C. 2734. (See subpart J.) (ix) Title 31, U.S.C., section 3721. (See subpart K.) (x) Federal Claims Collection Act, 31 U.S.C. 3711. (See subpart M.) (xi) Federal Medical Care Recovery Act, 42 U.S.C. 2651-53. (See subpart M.) (2) Claims against nonappropriated fund activities and the risk management program (RIMP). (See subpart L.) (3) Claims under industrial security regulations (DOD Directive (DODD) 5220.6) and claims by the U.S. Postal Service for losses or shortages in postal accounts caused by unbonded Army personnel (39 U.S.C 411 and DOD Manual 4525.6-M). (See DA Pam 27-162, chap 5, sec XI.) (b) DA Pam 27-162, chapter 8 lists other laws and regulations under which claims not covered by this regulation may be cognizable. (c) Where a conflict exists between a general provision of this part and a specific provision found in subparts implementing a specific claims statute, the specific provision will control. Sec. 536.5 Command and organizational relationships. (a) The Secretary of the Army has delegated authority to The Judge Advocate General (TJAG) to assign areas of responsibility and designate functional responsibility for claims purposes. TJAG has delegated authority to the Commander, U.S. Army Claims Service (USARCS), to carry out responsibilities assigned in Sec. 536.7(b). (b) USARCS, a field operating agency of the Office of TJAG, is the agency through which the Secretary of the Army and TJAG discharge their responsibilities for the administrative settlement of claims worldwide. (See AR 10-72.) The proper mailing address of USARCS is Commander, U.S. Army Claims Service, Office of The Judge Advocate General, Fort George G. Meade, Maryland 20755-5360. (c) Command claims services. (1) Command claims services exercise general supervisory authority over claims matters arising within their assigned areas of operation. Command claims services will provide-- (i) Effective control and supervision of the investigation of incidents occurring within the geographic area of the command, occurring in other areas for which the command is assigned claims responsibility or occurring in the course of the command's operations. (ii) Services for the processing and settlement of claims for and against the United States. (2) The commander of a major overseas command or other commands that include areas outside the United States, its territories, and possessions, and report directly to the Department of the Army (DA) may be designated by TJAG to establish, a command claims service. (3) A command claims service may be a separate organization with a designated commander or chief. If it is part of the Office of the Staff Judge Advocate (SJA) of the command, the SJA will also be the chief of the command claims service. (d) The following may be designated as area claims offices: (1) An office under the supervision of the senior judge advocate (JA) of each command or organization so designated by the Commander, USARCS. The senior JA is the head of the area claims office. (2) An office under the supervision of the senior JA of each command in the area of operations of a command claims service so designated by the chief of that service after coordination with the Commander, USARCS (see Sec. 536.7(c)(2)). The senior JA in the office is the head of the area claims office. (3) The legal office of each engineer district within the United States and such other engineer commands or agencies as designated by the Commander, USARCS with concurrence of the Chief of Engineers (COE) for all claims generated by such districts, commands, or agencies. The district counsel or the attorney in charge of the legal office of the command or agency is the head of the area claims office. (e) Claims processing offices are normally small legal offices or subordinate elements of area claims offices, which are designated by the Commander, USARCS; a command claims service; or an area claims office. These offices are established for the investigation of all potential and actual claims arising within their jurisdiction, either on an area basis or on a command or agency basis. A claims officer (see appendix B to this part) will not be a claims processing office; his or her role is limited to claims investigation. There are four types of claims processing offices as follows (Sec. 536.8(c)): (1) Claims processing offices without approval authority. (2) Claims processing offices with approval authority. (3) Medical claims processing offices. (4) Special claims processing offices. (f) The chief of a command claims service and the head of an area claims office or a claims processing office with approval authority may delegate, in writing, any portion or all of his or her monetary approval authority to a subordinate JA or claims attorney in his or her service or office. The authority to act upon appeals or requests for reconsideration, to disapprove claims (including disapprovals based on substantial fraud), or to make final offers will not be delegated. Copies of delegations within claims processing offices will be provided to the area claims office and, if so directed, to command claims services. Sec. 536.6 Designation of claims attorneys. (a) The Commander, USARCS, the senior JA of a command having a command claims service or the Commander, USAREUR Claims Service, the head of an area claims office, or the Chief Counsel, COE may designate a qualified attorney other than a Judge Advocate as a claims attorney. The head of an area claims office may designate a claims attorney to act as a claims processing office with approval authority. (b) To be eligible as a claims attorney, an individual must be a civilian employee of the DA or DOD, in grade GS-11 or above; a member of the bar of a State, the District of Columbia, or a jurisdiction where U.S. Federal law applies; and be performing primary duties as a legal adviser. These requirements can be waived by the Commander, USARCS, in appropriate cases. Responsibilities, Operations, Policies, and Guidance Sec. 536.7 Responsibilities. (a) The Judge Advocate General. TJAG has Army Staff responsibility for administrative settlement of claims worldwide by and against the U.S. Government, generated by employees of the U.S. Army and, DOD components other than the Departments of the Air Force and Navy (see DODD 5515.9). Certain claims responsibilities of TJAG are exercised by The Assistant Judge Advocate General (TAJAG), as set forth in this regulation. (b) Commander, USARCS. Commander, USARCS will-- (1) Supervise and inspect U.S. Army claims activities worldwide. (2) Formulate and implement claims policies and uniform standards for claims office operations. (3) Supervise the investigation, processing, and settlement of claims against and on behalf of the United States under the statutes and regulations listed in paragraph 1-4. (4) Designate area claims offices, claims processing offices, and claims attorneys within DA and DOD components other than the Departments of the Navy and Air Force. (5) Designate Continental United States (CONUS) geographic areas of claims responsibility. (6) Recommend action to be taken by the Secretary of the Army or the Attorney General of the United States as appropriate, regarding claims in excess of $100,000 under the FCA, the MCA, and the NGCA and other claims that have been appealed to the Secretary of the Army, or are in excess of $25,000 under the FTCA. (7) Operate the ``receiving State office'' for claims cognizable under Article VIII of the North Atlantic Treaty Organization (NATO) Status of Forces Agreement (SOFA), as implemented by 10 U.S.C 2743b (Subpart G). (8) Settle claims of the U.S. Postal Service for reimbursement under 39 U.S.C 411 (see DOD Manual 4525.6-M) and of DOD under industrial security regulations (DODD 5220.6). (9) Settle claims against carriers, warehouse firms, insurers, and other third parties for loss of, or damage to, personal property of service members incurred while in storage or in transit at Government expense (subpart K). (10) Formulate and recommend proposed legislation for Congressional enactment of new statutes and the amendment of existing statutes considered essential for orderly and expeditious administrative settlement of noncontractual claims. (11) Perform post settlement review of claims. (12) Prepare, justify, and defend estimates of budgetary requirements and administer the Army claims budget. (13) Maintain permanent records of claims for which TJAG is responsible. (14) Assist in developing disaster and maneuver claims plans designed to implement responsibilities set forth in paragraphs (d)(11) of this section and Sec. 536.15(c). (15) Develop and maintain plans for a disaster or civil disturbance for geographic areas not under the jurisdiction of an area claims authority and in which the Army has single service responsibility or in which the Army is likely to be the predominant Armed Force. (16) Take initial action on claims arising in emergency situations as outlined in Sec. 536.15(c). (17) Provide assistance as available or take appropriate action to ensure that command claims services and area claims offices are carrying out their responsibilities as set forth in paragraphs (c) and (d) of this section. (18) Serve as proponent for Claims Legal Automated Information Management System (CLAIMS) and provide standard automated claims data management programs for use worldwide. (19) Ensure proper training of claims personnel. (20) Coordinate claims activities with the Air Force, Navy, Marine Corps, and other DOD agencies to ensure a consistent DOD claims program. (21) Supervise the investigation and processing of medical malpractice claims arising in Army medical centers within the United States. Provide medical claims JAs, medical claims attorneys and medical claims investigators assigned to such medical centers with technical guidance and direction on such claims. (22) Coordinate support with the Office of The Surgeon General on matters relating to medical malpractice claims. (23) Issue an accounting classification to all properly designated claims settlement and approval authorities. (24) Perform the investigation, processing, and settlement of claims arising in areas not within the areas of operation of command claims services unless specifically delegated to a SJA of a command or designee. (c) Chiefs of command claims services. Chiefs of command claims services will-- (1) Exercise claims settlement authority as specified in this regulation, to include appellate authority where so delegated. (2) Designate area claims offices and grant claims settlement authority thereto. A grant of such authority will not be effective until coordinated with the Commander, USARCS and an office code assigned. However, the chief of a command claims service may redesignate a claims processing office already having an assigned office code as an area claims office without coordination with the Commander, USARCS. The Commander, USARCS will be informed of such a designation. (3) Designate claims processing offices and grant claims approval authority thereto. Only claims processing offices staffed with a JA or claims attorney may be granted approval authority. A grant of such authority will not be effective until coordinated with the Commander, USARCS and an office code assigned. (4) Train claims personnel and monitor their activities. (5) Implement pertinent claims policies. (6) Prepare and publish command claims directives. (7) Administer the command claims expenditure allowance, providing necessary data, estimates, and reports to USARCS. (8) Perform the responsibilities of an area claims office (see paragraph (d) of this section), as applicable. (9) Serve as the U.S. sending State office, if so designated, when operating in an area covered by a status of forces agreement. (d) Heads of area claims offices. Heads of area claims offices will-- (1) Ensure that claims in their area of responsibility are promptly investigated according to this regulation. (2) Ensure that each organization or activity (for example, U.S. Army Reserve (USAR) or Army National Guard (ARNG) unit, Reserve Officers' Training Corps (ROTC) detachment, recruiting company or station, and DOD agency) within the area appoints a claims officer to investigate claims incidents not requiring investigation by a JA (Sec. 536.16(c)(2)) and ensure that this officer is adequately trained. (3) Act as a claims settlement authority on claims within the monetary jurisdictions set forth in this regulation and forward claims beyond such jurisdictions to the Commander, USARCS or to the chief of a command claims service, as appropriate, for action. (4) Designate claims processing offices and request the Commander, USARCS or the chief of a command claims service, as appropriate, to grant claims approval authority to a claims processing office with respect to claims within that office's jurisdiction, as specified under paragraphs (b)(4) and (c)(2), of this section. (5) Prepare and publish a claims directive concerning the investigation and processing of claims matters for the guidance of all claims processing offices within their area. (6) Implement claims policies and guidance furnished by TAJAG or Commander, USARCS through policy directives or the Claims Manual and establish and implement necessary claims policies and procedures not contrary to the foregoing. (7) Ensure that there are an adequate number of qualified JAs or claims attorneys, claims examiners, claims adjudicators and claims clerks in all claims offices within their area to take prompt action on claims and that they are adequately trained. (8) Budget and fund for claims investigations and activities to include per diem and transportation of claims personnel, claimants and witnesses, independent medical examinations, appraisals, independent expert opinions, long distance phone calls, recording and photographic equipment, use of express mail or couriers, and other necessary expenses. (9) Within continental United States (CONUS), procure and disseminate adequate legal publications on local law and verdicts relating to tort claims within the area of jurisdiction. (10) Notify Commander, USARCS of all claims and claims incidents as required by Sec. 536.17 and Sec. 536.21(b)(2). (11) Develop and maintain written plans for a disaster or civil disturbance. The plan should include a requirement for an advance party to assess the need for the presence of a special claims processing office. The plans may be internal Office of the SJA plans or an annex to an installation/organizational plan. (See also Sec. 536.8(c)(4)(iii).) (12) Implement the Army's Article 139 claims program. (See Sec. 536.142.) (e) Heads of claims processing offices. Heads of claims processing offices will-- (1) Investigate all potential and actual claims arising within its assigned jurisdiction, either on an area basis or on a command or agency basis. Only a claims processing office with approval authority can adjudicate and pay all presented claims within its monetary jurisdiction. (2) Ensure that units and organizations within its jurisdiction have appointed claims officers for the investigation of claims not requiring investigation by a JA. (See Sec. 536.16.) (3) Budget and fund for claims investigations and activities to include per diem and transportation of claims personnel, claimants and witnesses, independent medical examinations, appraisals, independent expert opinions, long distance phone calls, recording and photographic equipment, use of express mail or couriers, and other necessary expenses. (4) Within CONUS, procure and maintain legal publications on local law and verdicts relating to tort claims within their jurisdiction. (5) Notify the Commander, USARCS of all claims and claims incidents as required by Sec. 536.17 and Sec. 536.21(b)(2). (6) Implement the Army's Article 139 claims program. (See Sec. 536.142.) (f) Chief of Engineers. The COE, through the Chief Counsel, will-- (1) Provide general supervision of the claims activities of engineer area claims offices. (2) Ensure that each engineer area claims office has a claims attorney designated by the Commander, USARCS, as prescribed in Sec. 536.6. (3) Ensure the training of claims personnel and the continuing inspection of their activities. (4) Provide for implementation of pertinent claims policies. (5) Provide for budgeting in accordance with existing Army regulations and command directives for temporary duty (TDY), long distance phone calls, recording equipment, cameras, and other expenses for investigation and processing of claims. (6) Take action to procure and have available adequate legal publications on local law relating to claims arising within the United States, its territories, and possessions. (g) Commanding General, U.S. Army Health Services Command (CG, HSC). The CG, HSC will, through his SJA, ensure that adequate and qualified medical claims JAs and medical claims investigators are assigned for the investigation and processing of medical malpractice claims arising at Army medical centers under his or her control. In accordance with an agreement between TJAG and The Surgeon General, such personnel will be used primarily in investigating and processing of medical malpractice claims and provided with the necessary funding and research materials to carry out this function. (h) Chief, National Guard Bureau (NGB). The Chief, NGB will-- (1) Ensure that a point of contact for claims matters is designated in each adjutant general office. (2) Provide the name, address, and telephone number of the point of contact to the Commander, USARCS. (3) Designate claims officers to investigate claims generated by ARNG personnel and forward investigations to the active Army area claims office having jurisdiction over the area in which the claims incident occurred. (4) Publish a regulation to carry out these responsibilities. (i) Commanders of major Army commands (MACOMs). Commanders of MACOMs through their SJAs will-- (1) Assist USARCS in monitoring area claims offices and claims processing offices under their respective command control for compliance with responsibilities assigned in paragraphs (d) and (e) of this section. (2) Assist claims personnel in obtaining qualified expert and technical advice from units and organizations under their respective command control on a nonreimbursable basis except that the requesting office may be required to provide TDY funding. (3) Assist TJAG, through the Commander, USARCS, in the implementation of the functions set forth in paragraph (b) of this section. (4) Coordinate with the area claims office within whose jurisdiction a maneuver will occur to ensure the prompt investigation and settlement of claims arising from the maneuver. Sec. 536.8 Operations of claims components. (a) Command claims services. A command claims service will be supervised by the SJA of the command. If the command claims service is a separate organization, the command SJA will designate a JA as the chief of the service. Otherwise, the SJA will be the chief of the service. Adequate, qualified claims personnel will be assigned to ensure that claims are promptly investigated and acted upon. With the concurrence of the service may designate area claims offices within its area of operations to carry out claims responsibilities within specified geographic areas. (b) Area claims offices. (1) The area claims office is the principal office for the investigation and adjudication or settlement of claims, and will be staffed with qualified legal personnel under the supervision of the SJA or command JA or Corps of Engineer district or command legal counsel. (2) The full-time responsibility for claims investigations and processing in a portion of the area or for claims related to the activities of a unit or organization within the area may be delegated to another command, unit, or activity by the establishment of a claims processing office at the command, unit or authority. (See Sec. 536.7 (d)(4) and (e).) Normally, all claims processing offices will operate under the supervision of the area claims office in whose area the claims processing office is located. Where a proposed claims processing office is not under the command of the parent organization of the area claims office, this designation may be effected by a support agreement or memorandum of understanding between the affected commands. (3) Normally, claims that cannot be settled by an engineer area claims office will be forwarded directly to the Commander, USARCS with notice to the Chief Counsel, COE of such referral. However, the Chief Counsel, as part of his or her responsibility for litigation of suits involving civil works and military construction activities, may require that an engineer area claims office forward claims through engineer channels provided that such requirement does not preclude final action by Commander, USARCS within the time limitations set forth in subparts D and H. (c) Claims processing offices. For a chapter 11 claim, if the adjudicated amount of a claim is in excess of the monetary jurisdiction of the head of the claims processing authority, the claim will be approved and paid up to the delegated authority of that office and immediately forwarded to the next higher claims authority for additional payment. (See Sec. 536.161(e).) (1) Claims processing offices without approval authority. A claims processing office that has not been granted claims approval authority will provide for the investigation of all potential and actual claims arising within its assigned jurisdiction, either on an area basis or on a command or agency basis. Once the investigation is completed, the claims file will be forwarded to the appropriate area claims office for action. Alternatively, an area claims office may direct that a claims investigation made by a claims processing office without approval authority be forwarded to another claims processing office within the area that has approval authority if the claim is within the jurisdiction of the latter. (2) Claims processing office with approval authority. A claims processing office that has been granted approval authority must provide for the investigation of all potential and actual claims arising within its assigned jurisdiction, either on an area basis or on a command or agency basis, and for the adjudication and payment of all presented claims within its monetary jurisdiction. If the estimated value of a claim, after investigation, is beyond the payment authority of the claims processing office or if disapproval is the appropriate action, the claim file will be forwarded to the area claims office unless otherwise specified in this regulation, or forwarded to USARCS or the command claims service, as appropriate, if directed by such service. (3) Medical claims processing offices. The medical claims JAs at Army medical centers, other than Fitzsimons Army Medical Center and Walter Reed Army Medical Center, may be designated by the SJA/head of area claims office for the installation on which the center is located as claims processing offices with approval authority for medical malpractice claims only. Claims beyond their approval authority will be investigated and forwarded to the Commander, USARCS. The SJA, Health Services Command, Quality Assurance Division, OTSG (DASG-PSQ) and the Consultation Case Review Branch, Clinical Policy and Consultants Division, Office of the Surgeon General (CCRB), will be advised by USARCS of all referrals, provided a copy of all claims, and informed of their disposition. (4) Special claims processing offices. (i) The Commander, USARCS, the chief of a command claims service or the head of an area claims office may designate special claims processing offices within his or her command for specific, short-term purposes (for example, maneuvers, civil disturbances, and emergencies). These special claims processing offices may be delegated approval authority necessary to effect the purpose of their creation, but in no case will this delegation exceed the approval authority maximums set forth in other chapters of this regulation for regular claims processing offices. All claims will be processed under the claims expenditure allowance and claims command and office code of the authority who established the office or a code assigned by USARCS. The existence of any special claims processing office must be reported to the Commander, USARCS. (ii) A special claims processing office is the proper organization to process and approve, as appropriate, maneuver damage claims, except where a foreign government is responsible for adjudication under an international agreement (see subpart G). Personnel from the maneuvering command should be used in the investigation of claims and, at the discretion of the area claims office, may be assigned to the special claims processing office. Claims filed after the termination of the maneuver will be processed by the area claims office. Claims arising within the jurisdiction of other area claims offices, while units are traveling to or from the maneuver, will be investigated by the special claims processing office and forwarded for action to the area claims office in whose area the claims arose. Claims for damage to real or personal property arising on private land being used under a permit may be paid from funds specifically budgeted by the maneuver for such purposes in accordance with AR 405-15. (iii) A special claims processing office provided for a disaster or civil disturbance should include a claims approving authority with adequate investigatory, administrative, and logistical support, to include damage assessment and finance and accounting support. It should not be dispatched prior to notification of Commander, USARCS. The concurrence of Commander, USARCS must be obtained prior to the payment of the first claim. (5) Claims processing offices discussed in paragraphs (c) (2) through (4) of this section must be supervised by an assigned JA or claims attorney in order to exercise delegated approval authority. Sec. 536.9 Claims policies. (a) General. (1) Claims investigation and adjudication should be accomplished at the lowest level possible, that is, by the claims processing office or area claims office with monetary authority over the estimated total value of all claims arising from the incident in question. The expeditious investigation and settlement of claims is essential to the successful fulfillment of the Army's responsibilities under the claims statutes implemented by this regulation. (2) Where technical errors exist in the filing of a claim or in its format, claimants should be advised of such errors and the need for corrective action. If the errors concern a jurisdictional matter, advice should be given expeditiously and a record should be maintained. The advice should include a warning that the error must be corrected prior to the expiration of the statute of limitations. (b) Investigative environment. In the investigation of claims, every effort should be made to create a cooperative environment engendering the free exchange of information and evidence. The goal of obtaining sufficient information to make an objective and fair analysis should be paramount. Personal contact with claimants or their representatives is frequently essential to clarify the issues both during investigation and prior to adjudication. Where settlement is not feasible, issues of disagreement or dispute should be clearly identified and spelled out to facilitate the resolution of any reconsideration, appeal, or in appropriate cases, litigation. (c) Claims directives and plans. (1) Two copies of command claims directives will be furnished to the Commander, USARCS. Area claims office directives will be distributed to all DA and DOD commands, installations, and activities within the area of responsibility with an information copy to Commander, USARCS. (2) One copy of all area claims offices' disaster/civil disturbance plan or annex will be furnished to the Commander, USARCS. (d) Interpretations. The Commander, USARCS will publish written interpretations of the provisions of this regulation and establish and publish policy as to those matters that are within agency discretion. Interpretations and policies that reference this provision will have the same force and effect as this regulation. (e) Exceptions. If it is considered to be in the best interest of the Government, the Commander, USARCS may grant authority to deviate from the specific requirements contained in this regulation in a particular instance except as to matters that are based on statutes, treaties and international agreements, executive orders, controlling directives of the Attorney General or Comptroller General, or otherwise have the force and effect of law. (f) Guidance. The Commander, USARCS may publish bulletins, manuals, handbooks, notes, and a DA Pamphlet to provide claims authorities with guidance on administrative and procedural matters related to the implementation of this regulation. These will be binding on all Army claims personnel. (g) Communication. All claims personnel are authorized to communicate directly with personnel of the USARCS for guidance on matters of policy or relating to the implementation of this regulation. (h) Private relief bills. There is no established procedure under which DA sponsors private relief legislation; this is a matter between an individual and his or her Congressman. Claims personnel will remain neutral in private relief matters. No statement should be made that purports to reflect a DA position on a private relief bill. Sec. 536.10 Guidance concerning disclosure of information and assistance. (a) Conflict of interest. Government personnel are forbidden to represent any claimant or to receive any payment or gratuity for services rendered. They may not accept any share or interest in a claim or assist in its presentation, under penalty of Federal criminal law (18 U.S.C. 203, and 205). (b) Release of information. (1) Government personnel are prohibited from disclosing information that may be the basis of a claim or any evidence of record in any claims matter except as authorized by statutory of regulatory authority. Certain documents which would normally be privileged or exempt from release, such as unclassified statements, documents containing opinions, conclusions, or findings, may be released to a claimant or his or her attorney, whenever release may help settle a claim or avoid unnecessary litigation, unless such release is barred by statute. (2) All requests for records and information made pursuant to the Freedom of Information Act (FOIA) or the Privacy Act (PA) will be processed in accordance with the procedures set forth in AR 25-55 or AR 340-21. Requests submitted by a claimant or his or her attorney, which cite only the FOIA, will be processed under the time limits of the FOIA and the exceptions and fees of the PA and FOIA, as required by AR 25- 55, paragraph 1-512c. Except for medical quality assurance records exempt from disclosure by 10 U.S.C. records protected by the Privacy Act of 1974, records within a category for which withholding of the record is discretionary (AR 25-55, paragraph 3-101) may be released to a claimant or his or her attorney, if no legitimate purpose exists for withholding it. (3) When it is determined that exempt information should not be released, the request will be forwarded to USARCS. For requests processed only under the FOIA, the commander, USARCS, may deny release of the records, acting on behalf of TJAG, the initial denial authority. The commander, USARCS will forward to TJAG all requests processed under the FOIA and PA. TJAG is the initial denial authority for PA requests (AR 340-21, paragraph 1-7i). (c) Claims assistance. The foregoing prohibitions do not apply to information and assistance provided in the performance of official duty. Any person who indicates a desire to file a claim against the United States cognizable under one of the chapters of this regulation will be instructed concerning the procedure to follow. The claimant will be furnished claim forms and, when necessary, will be assisted in completing claim forms and assembling evidence. He or she will not be assisted in determining what amount to claim. In the vicinity of a field exercise, maneuver, or disaster, information may be disseminated concerning the right to present claims, the procedure to be followed, and the names and location of claims officers and engineer repair teams. When the government of a foreign country in which U.S. Armed Forces are stationed has assumed responsibility for the settlement of certain claims against the United States, officials of that country will be furnished pertinent information and evidence so far as security considerations permit. Sec. 536.11 Single-service claims responsibility (DODD 5515.8). (a) Statutes and agreements. DOD has assigned single-service responsibility for the settlement of claims in certain countries under the following statutes and agreements: (1) FCA (10 U.S.C. 2734); DODD 5515.3, Settlement of Claims under 10 U.S.C. 2733 and 2734. (2) MCA (10 U.S.C. 2733); DODD 5515.3, Settlement of Claims under 10 U.S.C. 2733 and 2734. (3) 10 U.S.C. 2734a and 2734b, pro rata cost-sharing of claims pursuant to international agreements. (4) NATO SOFA (4 UST 1792, TIAS 2846) and other similar agreements. (5) Act of September 25, 1962 (42 U.S.C. 2651-2653), Claims for Reimbursement for Medical Care Furnished by the United States. (6) 10 U.S.C. 2737, claims not cognizable under any other provision of law. (7) The Federal Claims Collection Act (31 U.S.C. 3711-3719), as implemented by DODD 7045.13; the Act of June 10, 1921 (31 U.S.C. 71), claims and demands by the Government of the United States. (8) 10 U.S.C. 2736, Advance Payments. (b) Specified foreign countries. Responsibility for the settlement of claims cognizable under the laws listed above in the following countries has been assigned to military departments as indicated below: (1) Department of the Army: Austria, Belgium, El Salvador, France, Federal Republic of Germany, Grenada, Honduras, and Korea, the Marshall Islands and Switzerland. (2) Department of the Navy: Bahrain, Iceland, Israel, Italy, Portugal, and Tunisia. (3) Department of the Air Force: Australia, Azores, Canada, Cyprus, Denmark, Egypt, Greece, India, Israel, Japan, Luxembourg, Morocco, Nepal, The Netherlands, Norway, Oman, Pakistan, Saudi Arabia, Spain, Turkey, United Kingdom. (4) Except when they arise in countries for which single-service responsibility is assigned in paragraphs (b) (1), (2), and (3) of this section, single-service claims responsibility for claims involving, or generated by the U.S. Central Command or units assigned or attached thereto, is assigned to the Department of the Air Force. The addresses of United States sending State offices and single-service offices are contained in DA Pam 27-162, figure P7-1. (c) When claims responsibility has not been assigned. On an interim basis prior to receiving confirmation and approval from the appropriate office in DOD, the appropriate unified commander may, when necessary to implement contingency plans, assign single-service responsibility for processing claims in countries where such assignment has not already been made. Sec. 536.12 Cross-servicing of claims (DODD 5515.3). (a) Where another military department has single-service claims responsibility. Claims, claims by and against the United States resulting from Army activities or caused by members or employees of the DA in a country where another department has been assigned single- service claims responsibility will be investigated by the Army and referred to that department for settlement. (b) Where claims responsibility has not been assigned. Claims, claims cognizable under the FCA or the MCA generated by another military department in a foreign country where single-service claims responsibility has not been assigned may, upon request of the department concerned, be settled by the Army. Conversely, Army claims may, in appropriate cases, be referred to another department for settlement. (c) Claims generated by the Coast Guard. Claims resulting from activities, or generated by members or employees, of the Coast Guard while operating as a service of the Department of Transportation may, upon request, be settled under this regulation by a foreign claims commission appointed as authorized herein, but will be paid from appropriations of the Coast Guard (10 U.S.C. 2734(g) and 2734a(c)). Subpart B--Investigation and Processing of Claims Investigation Sec. 536.13 Importance of the claims investigation. Because evidence developed during an investigation provides the basis for every subsequent step in the administrative settlement of a claim or the defense of a lawsuit, a prompt and thorough investigation will be conducted on all potential and actual claims for or against the government. Adverse as well as favorable information must be collected and recorded and the legal and factual findings of the claims JA/ attorney must be preserved in the format specified in Sec. 536.22. Sec. 536.14 Reasons for investigation. (a) The investigation is performed to ascertain the facts of an incident. Which facts are relevant will often depend on the law and regulations applicable to the conduct of the parties involved, but as general guidance, the investigation should develop definitive answers to such questions as ``When,'' ``Where,'' ``Who,'' ``What,'' and ``How.'' Generally, the time, place, persons, and circumstances involved in an incident may be established by a simple report, but the cause and the resulting damage may require extensive effort to obtain all the pertinent facts. (b) The object of the investigation is to gather, with the least possible delay, the best available evidence without accumulating excessive evidence concerning any particular fact. The claimant is often an excellent source of such information and should be contacted early in the investigation. The investigative file should include medical records, witness interviews, photographs, and expert opinions. Sec. 536.15 Immediate investigation requirement. (a) Immediate investigation of an incident is required when-- (1) Property other than Government property is damaged, lost, or destroyed. Damage resulting directly or indirectly from combat need only be investigated to the extent necessary to confirm that the combat exclusion of the appropriate statute is applicable. (2) Government property is damaged, lost, or destroyed under circumstances that may give rise to a claim in favor of the Government under subpart N. (3) The incident results in injury to or death of, any civilian other than to a civilian of the Army while in performance of duty, an employee of the United States or its instrumentalities while acting within the scope of their employment. For deaths or injuries resulting directly or indirectly from combat activities of our forces, the investigation merely has to develop sufficient information to verify that the combat exception of the appropriate claims statute is applicable. (4) A claim is made. (5) Investigation is requested by another armed service of the United States. (6) A member of the uniformed services, a dependent, or any other person who is eligible for medical care at Army medical treatment facilities is injured under circumstances that permit recovery of the cost of hospital and medical care under subpart N. (7) An incident occurs in CONUS involving foreign nationals who are members of a foreign military force or civilian components of parties to the Agreement Regarding the Status of Forces of Parties to the North Atlantic Treaty, resulting in personal injury, death, or property damage (subpart G). (8) A patient, other than potential claimants excluded by Sec. 536.51(j), Sec. 536.75 (r) through (t) and Sec. 536.95, while under treatment by the Army Medical Service, dies, is injured, or otherwise disabled physically, mentally, or emotionally due to-- (i) A medical or surgical accident; or (ii) Care that does not meet standards for non-Government facilities similar to the Army facility providing the care; or (iii) An incident that could give rise to a claim against the United States under this regulation; or (9) Competent authority so directs. (b) Investigation by a claims officer is required when the situation or consequences described in paragraphs (a) (1) through (4), and (a)(9) of this section arise from activities of the ARNG or its personnel. (c) Claims arising out of situations that may be expected to generate a substantial number of claims in a short period of time and are properly cognizable for settlement under this regulation (such as maneuvers or other special operations, emergencies, civil disturbances, aircraft and missile accidents, or disasters) will be investigated in accordance with procedures set forth herein by the claims office responsible for the area in which the incident occurred. No claim arising out of such an emergency situation will be paid until the concurrence of the Commander, USARCS has been obtained. (See Sec. 536.8(c)(4)(iii). (d) Where an accident occurs that could only result in a claim against the United States that is not payable because of the incident to service rule, for example, barred by the Feres Doctrine, or the Federal Employees' Compensation Act (FECA), or the Longshoremen's and Harborworkers Compensation Act (LHWCA), the investigation may be limited to that necessary to make such a determination. However, claims officials will ensure that the appropriate commander or organization safety office is aware of the incident so that measures to avoid a recurrence can be pursued. Sec. 536.16 Unit claims officers. (a) Commanders' responsibility. Commanders and heads of DA and DOD components whose personnel, equipment or operations are involved in an incident giving rise to a potential or actual claim for or against the government (see Sec. 536.15(a), will appoint a commissioned officer, a warrant officer or a qualified civilian employee to conduct an initial factual investigation of the incident. (1) Installation commanders, brigade commanders, commanders of separate battalions, state ARNG Adjutant Generals and other commanders whose operations may generate a significant number of claims should consider appointing a claims officer on standing orders to facilitate training and coordination with the claims JA/attorney supporting the unit. (2) Senior noncommissioned officers (E6 thru E9) may be appointed as assistant claims officers to perform duties under the supervision of a claims officer. (3) Claims officer appointment orders should designate the claims JA/attorney who supports the unit as the claims officer's legal advisor. The orders will direct the claims officer to seek guidance from the claims JA/attorney at the outset of the investigation and before completion of the investigation whenever the potential value of the claim is in excess of $15,000 or an actual claim in excess of that amount has been filed. (4) The scope and duration of the investigation will depend on the severity and complexity of the incident and may range from merely obtaining investigation reports already prepared by police and other investigators to a formal investigation by a board of officers under the provisions of chapter 5, AR 15-6. In addition to the provisions of this chapter, claims officers will follow the guidance in Chapter 5, DA PAM 27-162 and the advice of the claims JA/attorney listed as their advisor. (5) Unit claims officers, in addition to making a report of investigation as specified in Sec. 536.16(c), will account for and preserve all available evidence for use in future litigation. Evidence will be retained until released by the claims JA/attorney. Therefore, the claims officer will consult with the claims JA/attorney before disposal, destruction or repair of damaged property or other evidence. The claims officer will also act as the claims JA/attorney's point of contact for support and assistance from the unit. (6) Claims officers must coordinate their work with concurrent criminal and safety investigations, which have priority within DA for access to accident sites and witnesses (see paragraph 1-4d, AR 15-6 and paragraphs 4-8a(2), 5-1a(1) and 5-4 AR 385-40). To the greatest extent possible claims officers should take advantage of the work already done on these other investigations (see Sec. 536.19 of this part). Although there are limits on the information safety personnel can release to claims officers, some of the information in safety reports can be released (see paragraphs 1-10 and 5-6, AR 385-40). (b) Report of claims officer--(1) Format. The claims officer will prepare a written report of investigation on DA Form 1208 (Report of Claims Officer), except that no recommendation on disposition of prospective claims will be entered in block 11. Where a formal investigation is conducted in accordance with the procedures in chapter 5, AR 15-6, the report may be submitted on DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers). If the claims officer does not feel either form is appropriate, the claims JA/ attorney advising the claims officer will be consulted for guidance. (2) Processing. The report should normally be completed and submitted to the appointing authority within 60 days of the accident/ incident. If a final report will not be completed within that time one or more interim reports may be required by the commander or claims JA/ attorney. The appointing authority will either return the report for further investigation or, if satisfied that it is as complete as possible given the information available, forward one copy of the report to the appropriate claims office with or without comment. (3) Content. The report will contain findings of fact concerning the incident, to include the circumstances leading to the incident (e.g. training and experience of Army personnel involved) and the resulting property damage and/or injuries. These findings should be based on the evidence reasonably available within the time available for completion of the report. See chapter 5, DA PAM 27-162 for guidance on the information needed in the most common types of claims incidents. (4) Limits on findings. The unit claims officers will not make findings concerning questions of liability or attempt to assess a dollar value on personal injuries. The findings should merely state the facts (who, what, where, when, and how). While a clear and complete statement of the facts will often make it clear who is responsible for the damage or injury, the determination of legal liability and the appropriate amount of compensation is the responsibility of the claims JA/attorney or the courts. (5) Use and release of information. The report of this initial investigation may be used in conjunction with any administrative or legal action within DOD, such as line of duty investigations, reports of surveys, disciplinary actions under the Uniform Code of Military Justice or civilian personnel regulations, contract actions, or the collateral investigation of an Army accident required by paragraph 1- 7c, AR 385-40. It may also be used by the commander or the unit's safety officers as the basis for their safety report (DA Form 285 and 285-1) when a centralized accident investigation or separate safety investigation is not conducted. It may be released to the public, to law enforcement personnel, state and federal regulatory agencies and other non-DOD entities subject to the provisions of the Freedom of Information Act and the Privacy Act. (6) Disposition of reports. The claims processing office or area claims office having jurisdiction the type of claim involved will retain the claims officer's report until a claim is received or until six months after the time for filing a claim is past. If no claim is filed within the statutory limit, the report will be disposed of as an organizational record in accordance with AR 25-400-2. (c) If an incident occurs, or a claim is filed, in a foreign country where no appropriate commander is located, investigative assistance may be sought from the Defense Attache or the Military Assistance and Advisory Group (MAAG). Incidents involving Attache or MAAG personnel, and claims arising from their activities, will be investigated in accordance with DIAM 100-1B, volume 1, section T, chapter 1, or AR 175, chapter 6, as appropriate. (d) Under the provisions of DODD 5515.9 the Commander, USARCS, or designee, may request assistance from DOD components whose personnel are involved in incidents generating claims in the investigation of such claims, and may appoint DOD personnel as claims officers for the purpose of conducting such investigations. Sec. 536.17 Claims office responsibility. (a) The claims JA/attorney receiving notice of an incident requiring investigation will immediately refer it to the appropriate claims officer and will notify, the Commander, USARCS of all major incidents involving serious injury or death, or where non Federal property damage exceeds $25,000. In some cases the claims JA/attorney assigned to the case may decide that a unit claims officer investigation is not necessary and waive the requirement. (b) The heads of area claims offices and the chiefs of command claims services are responsible for ensuring that a prompt and thorough claims investigation is conducted of all claims for or against the Army arising in their area before they take or recommend final action on a claim. The investigation of incidents and claims arising out of the activities of the Corps of Engineers (COE) is the responsibility of the appropriate COE district or division Counsel. On claims in excess of $25,000, the claims JA/attorney assigned to the case should consult with the action officer at USARCS on the extent of the investigation (see Sec. 536.21). (c) The initial investigation by the unit claims officer is supposed to be completed promptly after the accident and may not be sufficient for final resolution of the claim. The unit's investigation will often be completed before a formal claim is filed and before all information about the full extent of the damages is available. An interview of the claimant may not have been possible or advisable. New information submitted with the claim may require further investigation. The more extensive investigation usually required for final action on a claims will often require the use of not just unit claims officers but also claims JA's/attorneys and investigators within the area claims office, experts within and from outside DOD and personnel from USARCS. Sec. 536.19 Transfer of responsibility. (a) Transfer of responsibility is authorized when the investigation may be more practicably conducted or completed by the claims officer of another installation or unit. When two or more commands are involved, the common superior commander or the Commander, USARCS will decide who will conduct the investigation. The commanding officer whose personnel or equipment is involved will furnish to the authority responsible for conducting the investigation all available information concerning the incident. (b) Transfer will be accomplished by direct transmittal of a report of the incident in writing, with all available evidence (or orally, later confirmed in writing). (c) When more than one Federal agency is or may be involved, the claims office receiving the claim will contact, at the field level, all other affected agencies in order to obtain the designation of a single agency to investigate and determine the merits of the claim. If such a designation cannot be agreed upon, USARCS will be notified in order to attempt to resolve the matter at agency level or to request the Department of Justice to make a designation. If the DA is the designated agency, the claimant will be notified to correspond only with the DA. This is not to be construed to preclude assistance in the investigation from other Federal agencies. (d) If a claim is received that arises solely out of the activities of another Federal agency, the claim will be transferred to such agency and the claimant notified of such transfer. If the appropriate agency cannot be identified, the claim will be returned to the claimant informing him or her of this fact. (e) When an incident occurs where the Army has no unit or installation conveniently located for conducting an investigation, but another U.S. military department does have an installation or unit in the vicinity, the responsible officer may request the commanding officer or commander of any organization of another U.S. military department to conduct or assist in the investigation. Similar requests from another military department will be honored if possible. Sec. 536.19 Investigative procedures. (a) General. A claims investigator will be guided by policies, procedures, and guidance set forth in DA Pam 27-162 or furnished by the Commander, USARCS. For other than routine incidents, guidance should be obtained from the claims approval or settlement authority who will have jurisdiction based on the probable value of the largest single claim arising from the incident. The extent and nature of the investigation should be guided by the specific requirement of the situation. If it is considered in the best interest of the Government, the Commander, USARCS, or the chief of a command claims service, may grant authority to deviate from the specific requirements contained in this regulation in a particular investigation, except as to procedures that are based on statute or have the force of law. (b) Information from other investigations. (1) The investigator should obtain a copy of the report of any prior investigation that was made for purposes other than claims; for example-- (i) Police reports. (ii) Line of duty reports. (iii) AR 15-6 investigations. (iv) Reports of survey. (v) IG investigations. (vi) Safety investigations. (vii) Government contractor investigations. (viii) Investigations by other governmental agencies such as National Transportation Safety Board; Food and Drug Administration; Center for Disease Control; Bureau of Alcohol, Tobacco, and Firearms; and Consumer Product Safety Commission. (2) While such an investigation may not be adequate for claims and litigation purposes, it may contain evidence and leads of value to the investigator. If the report of the prior investigation contains diagrams, photographs, or witness statements, it is not necessary for the investigator to cover the same ground. Copies of such items may be made and included in the claims investigation. Generally, however, it will be necessary for the investigator to obtain more complete statements from witnesses. This is especially true for statements in medical quality assurance reports and reports of Army accidents prepared by Army safety personnel, as there are regulatory restrictions on the use of these statements in connection with claims and litigation. (3) When military records fail to confirm the occurrence of a traffic accident upon which a claim is based, or substantial doubt arises regarding the nature or extent of the actual damages or injuries allegedly sustained, claims authorities should contact the Bureau of Motor Vehicles of the appropriate State or municipality to ascertain whether an accident report of the incident is a matter of record and, if so, a copy of such report should be obtained. (c) Statements of witnesses. Perhaps the most important phase of an investigation is the securing of statements from available witnesses, including the claimant and persons associated with him or her, for example, persons riding in the vehicle. The claims investigator may take the unsworn statements of a witness or may, if the statement is satisfactory for claims purposes, use a statement secured by another investigator. (d) Photographs and diagrams. Claims investigators should have cameras and obtain photographs and diagrams to describe the scene of incidents that they investigate. Photographs and drawings should indicate when taken or made and by whom. (e) Claims requiring information of a specialized nature. Depending on the nature of the incident, the investigator must decide on the specialized nature of evidence that will be required. In this regard, reference should be made to DA Pam 27-162 wherein specific items of information and documentation required for various categories of incidents are listed. Sufficient documentation of property losses or damages and personal injury or death should be obtained. Technical advice and assistance will be furnished by other DA agencies such as the Tank and Automotive Command or the Army Safety Center for vehicular accidents, or the Army Aviation Reserve Board and the Corpus Christi Army Depot for aircraft accidents. (f) Completion of investigation. Upon completion of the investigation, the investigator must carefully review the report to ascertain whether all pertinent information has been included and inconsistencies reconciled. The review should take into consideration the following questions: Is the report of investigation complete enough to enable the approving authority to decide how the incident occurred? On whom does the responsibility for the incident rest? What is the extent of any loss or damage suffered? In the ordinary case, if the investigator has included in the report all information pertaining to the ``what,'' ``who,'' ``where,'' ``when,'' and ``how'' of the occurrence, the information needed by those who must decide the claim will be satisfied. Claims Receipt and Disposition Sec. 536.20 Presentation. (a) Who may present. (1) A claim may be presented by the owner of the property, or in the owner's name by a duly authorized agent or legal representative. As used in this regulation an owner includes the following: (i) For real property. The mortgagor, or the mortgagee, if he or she can maintain a cause of action in the local courts involving a tort to that specific property. When notice of divided interests in real property is received, the claim should, if feasible, be treated as a single claim or a release from all interests must be obtained. (ii) For personal property. A bailee, leasee, mortgagee, and conditional vendor, or others having title for purposes of security only, are not proper claimants unless specifically authorized in the chapter in question. If more than one party has an interest in the property, all must join in the claim or a release from all interests must be obtained. (2) A claim for personal injury may be presented by the injured person or by a duly authorized agent or legal representative. (3) A claim based on death may be presented by the executor or administrator of the deceased's estate, or by any person determined to be legally or beneficially entitled. The amount allowed will, to the extent practicable, be apportioned among the beneficiaries in accordance with the law applicable to the incident. (4) A claim for medical, hospital, or burial expenses may be presented by any person who by reason of family relationship has, in fact, incurred the expenses for which the claim is made. For claims cognizable under the provisions of the FTCA, see subpart D. (See Sec. 536.86 for restrictions on damages allowable in claims involving death or personal injury under the Act of 9 October 1962 (10 U.S.C. 2737).) (5) A claim presented by an agent or legal representative will be made in the name of the claimant and signed by the agent or legal representative showing his or her title or capacity. Where a claim is presented by an agent or legal representative-- (i) Written evidence of the authority of the agent or legal representative to act, such as a power of attorney, is required, or (ii) Where the authority is conferred by State statute, a citation to that statute is required. (See DA Pam 27-162, app H, section I, paragraph 14-2; see also Sec. 536.21 for additional requirements relating to settlements.) (6) A claim normally will include all damages that accrue by reason of the incident. Where the same claimant has both a claim for damage to or loss of property and a claim for personal injury or 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 of a single claim or cause of action. Under subparts C through J of this part, a single claimant is entitled to be compensated only one time for all damages or injuries arising out of an incident. (b) Subrogation. A claim may be presented by the subrogee in his or her own name if authorized by the law of the place where the incident giving rise to the claim occurred, provided subrogation is not barred by the portion of this 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 he or she has been compensated for the repairs by his or her insurer. In such instances a release should be obtained from both parties in interest or be released by both of them. The approved payment in a joint claim will be by joint check that will be sent to the subrogee unless both parties specify otherwise. If separate claims are filed, payment will be by check issued to each claimant to the extent of his or her undisputed interest. (3) Where a claimant has made an election and accepted workmen's compensation benefits, both statutory and case law of the jurisdiction should be scrutinized to determine to what extent the claim of the injured party against third parties has been extinguished by acceptance of compensation benefits. While it is infrequent that the claim is fully extinguished and where it is not, the only proper party claimant is the workmen's compensation carrier. Even where the injured party's claim has not been fully extinguished, most jurisdictions provide that the compensation insurance carrier has a lien on any recovery from the third party and no settlement should be reached without approval by the carrier where required by local law (19 American Law Reports (ALR) 766, supplemented by 27 ALR 493, 37 ALR 838, 67 ALR 249, 88 ALR 665, and 106 ALR 1040). Also, claims from the workmen's compensation carrier as subrogee or otherwise will not be considered payable where the United States has paid the premiums, directly or indirectly for the workmen's compensation insurance. Applicable contract provisions holding the United States harmless should be used. (4) Whether medical payments paid by an insurer to its insured can be subrogated depends on local law. Some jurisdictions prohibit these claims to be submitted by the insurer notwithstanding a contractual provision providing for subrogation. Therefore, local law should be researched prior to deciding the issue, and claims forwarded to higher headquarters for adjudication should contain the results of said research. Such claims, where prohibited by State law, will also be barred by the Antiassignment Act. (See paragraph (c) of this section.) (5) Care will be exercised to require insurance disclosure consistent with the type of incident generating the claim. Every claimant will, as a part of the claim, make a written disclosure concerning insurance coverage as to-- (i) The name and address of every insurer; (ii) The kind and amount of insurance; (iii) Policy number; (iv) Whether a claim has been or will be presented to an insurer, and if so, the amount of such claim; and (v) Whether the insurer has paid the claim in whole or has indicated payment will be made. (vi) Each subrogee must substantiate his or her interest or right to file a claim by appropriate documentary evidence and should support the claim as to liability and measure of damages in the same manner as required of any other claimant. Documentary evidence of payment to 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. (vii) Subrogated claims are not cognizable under subparts E, J or K. (c) Transfer and assignments. (1) Except as they occur by operation of law or after a voucher for the payment has been issued, unless within the exceptions set forth by statute (31 U.S.C 3727 and AR 37- 107), the following are null and void: (i) Every purported transfer or assignment of a claim against the United States, or of any part of or interest in a claim, whether absolute or conditional. (ii) Every power of attorney or other purported authority to receive payment of all or part of any such claim. (2) The purposes of the Antiassignment Act are to eliminate multiple payment of claims, to cause the United States to deal only with original parties, and to prevent persons of influence from purchasing claims against the United States. (3) In general, this statute prohibits voluntary assignments of claims with the exception of transfers or assignments made by operation of law. The operation of law exception has been held to apply to claims passing to assignees because of bankruptcy proceedings, assignments for the benefit of creditors, corporate liquidations, consolidations or reorganizations, and where title passes by operation of law to heirs or legatees. Subrogated claims that arise under a statute are not barred by the Antiassignment Act. For example, subrogated workmen's compensation claims are cognizable when presented by the insurer. (4) Subrogated claims that arise pursuant to contractual provisions may be paid to the subrogee if the subrogated claim is recognized by State statute or decision. For example, an insurer under an automobile insurance policy becomes subrogated to the rights of a claimant upon payment of a property damage claim. Generally, such subrogated claims are authorized by State law and are therefore not barred by the Antiassignment Act. (5) Before claims are paid, it is necessary to determine whether there may be a valid subrogated claim under Federal or State statute or subrogation contract held valid by State law. If there may be a valid subrogated claim forthcoming, payment should be withheld for this portion of the claim. If it is determined that claimant is the only proper party, full settlement is authorized. (d) Action by claimant--(1) Form of claim. (i) The claimant will submit his or her claim using authorized official forms whenever practicable. A claim is filed only when the vital elements (see Appendix B to this part) have been supplied in writing by a person authorized to present a claim (paragraph (a) of this section) unless the claim is cognizable under a chapter that specifies otherwise. (ii) A claim may be amended by the claimant at any time prior to final agency action or prior to the exercise of the claimant's option under 28 U.S.C. 2675(a). (2) Signatures. (i) The claim and all other papers should be signed in ink by the claimant or his or her duly authorized agent. Such signatures will include the first name, middle initial, and surname. A married woman should sign her claim in her given name; for example, ``Mary A. Doe.'' (ii) Where the claimant is represented, the supporting evidence required by paragraph (a)(5) 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 be presented to the commanding officer of the unit involved; the legal office of the nearest Army post, camp, or station; or other military establishment convenient to the claimant. In a foreign country where no appropriate commander is stationed, the claim may be submitted to any attache of the U.S. Armed Forces. (See AR 1-75.) Claims arising overseas which are cognizable under Article VIII of the Agreement Regarding the Status of Forces of Parties to the North Atlantic Treaty, Treaty of Mutual Cooperation and Security Between the United States of America and Japan Regarding Facilities and Areas and the Status of United States Armed Forces in Japan or other similar treaty or agreement are filed with designated claims officials of the receiving State. (e) Evidence to be submitted by claimant. The claimant should submit the evidence necessary to substantiate his or her claim. It is essential that independent evidence be submitted that will substantiate the correctness of the amount claimed. (f) Statute of limitations--(1) General. Each statute available to the DA for the administrative settlement of claims, except the Maritime Claims Settlement Act (10 U.S.C. 4802), specifies the time during which the right to file a claim must be exercised. These statutes of limitations, which are jurisdictional in nature, are not subject to waiver unless the statute expressly provides for waiver. Specific information concerning the period for filing under each statute is contained in the appropriate implementing chapter 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 or her decedent. Exceptions to this general rule may exist where the claimant does not know of the injury or damage, or does not know the cause of injury or damage. In those cases, the claim accrues when the injured party, or someone acting on his or her behalf, knows or should know about both the existence and cause of the injury. However, this exception does not apply when, at a later time, he or she discovers that the acts inflicting the injury may constitute medical malpractice. (See United States v. Kubrick, 444 U.S. 111, 100 S. Ct. 352 (1979).) The discovery rule is not limited to medical malpractice claims; it has been applied to diverse situations involving violent death, chemical and atomic testing, and erosion and hazardous work environment. In claims for indemnity or contribution against the United States, the accrual date is the time of payment for which indemnity is sought or on which contribution is based. (3) Effect of infancy, incompetency, or the filing of suit. The statute of limitations for administrative claims is not tolled by infancy or incompetency. Likewise, the statute of limitations is not tolled for purposes of filing an administrative claim by filing of a suit based upon the same incident in a Federal, State, or local court against the United States or other parties. (For the effect of filing an administrative claim with an agency other than the Army, see Sec. 536.53(b), Sec. 536.77 (b) and (c) and Sec. 536.102) (4) Amendment of claims. A claim may be amended by the claimant at any time prior to final agency action or prior to the exercise of the claimant's option under 28 U.S.C. 2675(a). A claim may be amended by changing the amount, the bases of liability, or elements of damages concerning the same incident. Parties may be added only if the additional party could have filed a joint claim initially as in paragraph (a)(1) of this section. If the additional party had a separate cause of action, his or her claim may not be treated as an amendment but only as a separate claim and is thus barred if the statute of limitations has run. For example, if a claim is timely filed on behalf of a minor for personal injuries, a subsequent claim by a parent for loss of services is considered a separate claim and is barred if it is not filed prior to the running of the statute of limitations. Another example is where a separate claim is filed for loss of services or consortium by a spouse arising out of injuries to the husband or wife of the claimant. On the other hand, if a claim is timely filed by an insured for the deductible portion of his or her property damage, a subsequent claim by the insurer based on payment of property damage to its insured may be filed as an amendment even though the statute of limitations has run, unless final action has been taken on the insured's claim. (5) Date of receipt stops the running of the statute. In computing the time to determine whether the period of limitation has expired, exclude the first day and include the last day, except when it falls on a nonworkday such as Saturday, Sunday, or a legal holiday, in which case it is to be extended to the next workday. Sec. 536.21 Disposition of claims. (a) General. When a claim is received, the date and the designation of the receiving command or office will be stamped or otherwise noted on all copies. If the receiving command or office is not responsible for the investigation, the claim will be transmitted to the claims office of the command or installation concerned. (b) By the command concerned. Following completion of the claims investigation, the command claims service or claims office responsible for the claim may take the following actions on all claims other than those on for which USARCS has exclusive jurisdiction (see Sec. 536.21(c)). (1) If the claim is of a type and amount within the jurisdiction of the claims office of the command concerned and the claim is meritorious in the amount claimed, it will be approved and paid. (2) If a claim in an amount in excess of the monetary jurisdiction of the claims office is meritorious in a lesser amount within its jurisdiction, the claim may be approved for payment provided the amount offered is accepted by the claimant in settlement of the claim. (3) If the claim is not of a type within the jurisdiction of the claims office, or if the claimant will not accept an amount within its jurisdiction, the claim with supporting papers and a recommendation for appropriate action will be forwarded to the next higher claims authority. Any personnel claim forwarded to a higher authority for settlement will be accompanied by a memorandum of opinion. Prior to forwarding any tort claim, the USARCS AAO must be consulted and a joint decision reached on whether a memorandum of opinion must be submitted. (4) If the claim is determined to be not meritorious, it will be disapproved provided the claims office has settlement authority for claims of the type and amount involved. If the type and amount of the claim requires denial by a higher authority, the claim will be forwarded through claims channels to the appropriate authority accompanied by a claims memorandum of opinion recommending denial. Prior to the disapproval of a claim under a particular statute, a careful review should be made to ensure that the claim is not properly payable under a different statute or on another basis. (c) Claims within the exclusive jurisdiction of USARCS. Authority to settle the type of claims listed below has not been delegated below USARCS. Command claims services or area claims offices receiving these types of claims will investigate them in accordance with this regulation and guidance from USARCS. Regardless of the amount claimed, a mirror copy of the claims will be sent to Tort Claims Division, USARCS immediately on receipt. Once the investigation is complete, the files on these claims should be forwarded directly to USARCS with a memorandum of opinion recommending disposition. (1) Claims arising in the United States out of the actions of members of the force or civilian component of a NATO nation or headquarters (subpart G, statutory authority). (2) Maritime claims for or against the Army other than those arising overseas within the jurisdiction of a command claims service or those within the jurisdiction of Corps of Engineers and other specially designated claims offices ( See subpart H). (3) Claims based on the denial of a security clearance by the government to civilian employee of defense contractors (DODD 5220.6, section 10, paragraph C). (4) Claims by the U.S. Postal Service against the Military Postal Service Agency. (5) In areas where the FTCA is applicable, any claim except those under chapter 11, arising out of an accident involving a POV driven by a member of the Army, or by ARNG personnel as defined in chapter 6, based on an allegation that the POV travel was within the scope of employment. On these claims the memorandum of opinion will include a specific discussion on the issue of scope of employment under applicable law (See chapters 4 and 5, AR 27-40). (d) Mirror file requirement. In addition to the claims listed in Sec. 536.21, USARCS is responsible for monitoring the investigation and settling the following claims. A copy of these claims and of any claims listed in paragraph (c) of this section, will be forwarded immediately on receipt to the Commander, USARCS, ATTN: JACS-TCD . (1) A case that must be brought to the attention of the Department of Justice in accordance with The Attorney General's Regulations (DA Pam 27-162, appendix H). (2) Any FTCA, MCA, or other tort claim in which the amount claimed exceeds $25,000. (3) FTCA, MCA or other tort claims arising out of an incident if the combined amounts of the claims exceed $25,000. (4) A claim within the exclusive jurisdiction of USARCS (see paragraph (c) of this section). The field claims office will provide USARCS duplicates of all correspondence, records and documents relevant to the investigation and processing of the claim as they are added to the file. Direct liaison and correspondence between USARCS and the field claims authority is authorized and encouraged on these and all claims. In addition, heads of area claims offices in CONUS will advise the action officer at Tort Claims Division, USARCS who is responsible for their geographic area of all potential claims likely to meet the criteria in this paragraph or in paragraph (c) of this section, and will forward a copy of the investigation file to USARCS on request. (e) By higher settlement authority. A higher claims settlement authority may take action with respect to a claim in the same manner as the initial claims office. However, if it is determined that any further attempt to settle the claim would be unwarranted, the claim will be forwarded to the Commander, USARCS, with recommendations. (f) Claims not cognizable under subparts C through L. If a claim is determined not to be cognizable under this regulation, reference to DA Pam 27-162, chapter 8 may reveal a basis for compensation or consideration by another agency. If so, the claimant will be so advised. If, after investigation, it appears that the claim may not be settled under any law or regulation, the claim, the related file, and a memorandum of opinion will be forwarded through claim channels to the Commander, USARCS. (g) Blast damage claims. All claims cognizable under subparts C, D and F which are based on damage to or loss of property due to explosions (for example, artillery firing, aerial bombing, or demolition of explosives) will be sent through USARCS to U.S. Army Ballistic Research Laboratories (USABRL), Aberdeen Proving Grounds, MD 21005-5055, for a technical opinion prior to settlement. See DA Pam 27- 162, chap 5, sec IX. Sec. 536.22 Claims memorandum of opinion. (a) Tort Claims Memorandum. Unless otherwise agreed between the USARCS AAO and the area claims office (see section 536.21(b)(1)), the contents and arrangement of the Tort Claims memorandum will be as follows: (1) Part I. Identifying Data. (i) Name, address, and social security number of all claimants/plaintiffs. (ii) Name, address, and telephone number of attorney. (iii) Date and place of incident. (iv) Date and amount of claim/ad damnum of complaint. (v) Brief (one sentence) description of claim/case. (vi) Actual or potential companion claims (nature and status). (2) Part II. Jurisdiction. Discuss applicable statute(s), whether the claim was timely and properly filed, and other jurisdictional matters. (3) Part III. Facts. Provide a complete statement of the facts upon which the claim and any defense thereto are predicated. In each instance in which a fact is supported by documents or witness statements in the file, appropriate parenthetical references will be inserted into the statement of facts. Subparagraphs with descriptive headings will be used if appropriate, for example, background facts or facts about the incident. (4) Part IV. Legal Analysis. List issues related to liability and the controlling law with applicable citations. Subparagraphs with descriptive headings will be used as appropriate and necessary, for example, law controlling factual issues, factual bases for claim as related to issues (duty, proximate cause), defenses, existence of joint tortfeasors. If the claim is barred by a jurisdictional defense, for example, Feres, Federal Employees Compensation Act, statute of limitations, this matter will be discussed separately. The position on liability will be stated at the end of the section. (5) Part V. Damages. Discuss the following in the order listed under appropriate subheadings as necessary: Who can claim under applicable law, for example, wrongful death; description of injuries and treatment; description of property loss and proof thereof; types of special damages (such as, loss of earnings, loss of services, past and future care); type and nature of non-economic or general damages (use a summary in tabular form, as necessary, for special and general damages); effect of diminished liability on the value of the claim; effect of subrogation. (6) Part VI. Proposed Settlement or Action. Discuss any proposed structured settlement. Discuss any prior offers, or negotiations and status. If a denial or final offer is indicated, so state. (7) Part VII. Recommendation. (8) Part VIII. Document and Witness List. (i) The witness list will include the name, SSAN, telephone number, and present and permanent address for each witness or medical reviewer. (ii) Identify each document in the file. (iii) For all medical malpractice claims, attach DD Form 2526 (Case Abstract for Malpractice Claims) as an enclosure. (See paragraph (c) of this section for additional instructions.) (9) Part IX. Responses to Pleadings (for claims in litigation only) (i) Proposed answer. (ii) Defenses. (iii) Counterclaims. (iv) Crossclaims. (v) Dispositive motions (identify and list). (b) Personnel Claims memorandum. See section 536.168 for instructions on preparing a Personnel Claims memorandum. (c) Case Abstract for Malpractice Claims. On all dental and medical malpractice claims, claims JAs will attach DD Form 2526 (Case Abstract for Malpractice Claims) to all memoranda prepared under paragraph (a) of this section, and forward to USARCS. Claims JAs will also submit this form to USARCS on all dental and medical malpractice claims settled or denied within their local authority. When a claim is transferred to USARCS without a forwarding memorandum prepared under paragraph (a) of this section, DD Form 2526 must still be completed and forwarded within 60 days after the medical records are available for review by the MTF/DTF risk manager (RM). (1) Claims JAs/MCJAs will coordinate the completion of the form pertaining to the Standard of Care, Diagnoses, and Procedures with the MTF/DTF RM or the RM's designee. If the RM does not provide this information, claims JAs/MCJAs will note the reason and submit the form to USARCS. The sections pertaining to Provider Information and Type of Provider and Specialty of DD Form 2526 will not be completed on the form submitted to USARCS. OTSG will task subordinate commands to forward provider information on settled claims. (2) Claims JAs are required to submit one DD Form 2526 for each incident (course of treatment or nontreatment that results in an injury) for which a claim has been filed. Derivative claims do not require a separate report. However, separate reports are required when claimants allege physical injury to more than one claimant (for example, an infant's claim for brain damage as a result of birth trauma and a mother's claim for physical injury caused by the delivery would require two reports). When a claimant alleges negligent medical care at more than one MTF/DTF, USARCS will designate the claims JA who will complete the DD Form 2526. (d) Subsequent action. It is not necessary for each claims authority who considers the claim to write a separate memorandum. If a claims approval or settlement authority agrees with the memorandum of opinion written by another authority, he or she can adopt the earlier memorandum by merely stating that he or she concurs in the adopted memorandum and stating the nature of the action. If there is disagreement, in whole or in part, with the earlier memorandum, such disagreement should be stated and reasons therefor set forth in a separate memorandum or in an addendum. The approval or settlement authority will personally sign the action, indicating position title. Sec. 536.23 Actions. The following actions may be taken as appropriate: (a) Transmittal of the claim to the appropriate claims office for proposed disposition. (b) Disapproval of the claim provided the person signing the action is a settlement authority. (See appendix B to this part). (c) Final offer. (See appendix B to this part). (d) Approval and certification of the claim for payment. (1) SF 1034 (Public Voucher for Purchases and Services Other Than Personal) will be used on all claims settled under this regulation except claims settled under subpart D which will be paid utilizing an SF 1145 (Voucher for Payment Under the Federal Tort Claims Act). (See Sec. 536.35(a)(1) for exceptions.) (2) When an SF 1034 is to be paid by the GAO, the certification block of the SF 1034 will not be signed by Army Officials. GAO officials will certify any payment made by that agency. (See Sec. 536.35(a)(1) for exceptions.) (3) Payment of a claim under subpart D in excess of $2,500 is obtained by forwarding necessary documentation to the GAO. Complete information on the requirements to effect such payments are set forth in Sec. 536.35(b). Note that the approval or settlement authority signs only the approval block (lower left) of the SF 1145 before submitting a claim to the GAO for payment. (e) Subsequent action. See Sec. 536.22(d). Liability and Quantum Determinations Sec. 536.24 General considerations. (a) Liability. In the adjudication of tort claims arising in the United States, the liability of the United States generally is determined in accordance with the law of the state or country where the act or omission occurred, except that any conflict between local law and an applicable United States statute will be resolved in favor of the latter. However, in claims arising in foreign countries, liability may be based in whole or in part on local law or as otherwise provided in subpart C for settlements of claims of United States inhabitants arising overseas under the Military Claims Act. (See Sec. 536.55(c). Where liability is not clear or other issues exist, settlements should truly reflect the uncertainties in the adjudication of such issues. Compromise settlements are encouraged provided agreement can be reached that reflects the reduced value of the damages as measured against the full value or range of value if such uncertainties or issues did not exist and were it possible for the claimant to successfully litigate the claim. (b) Quantum exclusion. The costs of filing a claim and similar costs (for example, court costs, bail, interest, inconvenience expenses, or costs of long distance telephone calls or transportation in connection with the preparation of a claim) are not proper quantum elements and will not be allowed. (c) Property damage. Property damage compensable under the tort claims provisions of this regulation means damage to tangible real or personal property (see glossary). It does not include mere diminution of value of real property unless there is some corresponding physical damage to the property, nor does it include damage to reputation, employment rights or constitutional rights. Other remedies may be available for such injuries but they are generally not cognizable under the FTCA, MCA, FCA or the Maritime Claims Settlement Act. Sec. 536.25 Incident to service exclusionary rule. (a) General. A claim for personal injury or death of a member of the armed forces of the United States or a civilian employee of the United States that accrued incident to his or her service is not payable under this regulation. A property damage claim that accrued incident to the service of a member of the Armed Forces may be payable under 31 U.S.C. 3721 (subpart K) or the MCA (subpart C), depending on the facts. (b) Property damage claims. A claim for damage to or loss of personal property of a claimant who is within one of the categories of proper party claimants listed in Sec. 536.163, which is otherwise cognizable under Sec. 536.164, must first be considered thereunder. If a claim is not clearly compensable under subpart K, and it arises incident to a noncombat activity of the DA or was caused by a negligent or wrongful act or omission of military personnel or civilian employees of DOD, it may be cognizable under either the MCA or the FTCA. The claim, if meritorious in fact, will probably be payable under one authorization or another regardless of whether the claim accrued incident to the service of the claimant. (c) Personal injury and death claims. (1) Only after the death or personal injury has been determined to have not been incurred incident to the member's service should subparts C and D be studied to determine which, if either, provides a proper basis for settlement of the claim. In any event, the rule in U.S. v. Brooks, 176 F.2d 482 (4th Cir. 1949) requiring setoff of amounts obtained though military or veterans' compensation systems against amounts otherwise recoverable will be followed. Other Government benefits funded by general Treasury revenues, not by the claimant's contributions, may also be used as a setoff against the settlement, for example, Overton v. United States, 619 F.2d 1299 (8th Cir. 1980). (2) As the incident to service issue is determinative as to whether this type of claim may be processed administratively, the applicable law and facts should be carefully considered before deciding that injury or death was not incident to service. Such claims also are often difficult to settle on the issue of quantum and thus more likely to end in litigation. Moreover, the United States may well elect to defend the lawsuit on the basis of the incident to service exclusion and this defense could be prejudiced by a contrary administrative determination that a service member's personal injuries or death were not incident to service. Doubtful cases will be forwarded to the Commander, USARCS without action along with sufficient factual information to permit a determination of the incident to service question. Sec. 536.26 Property damage appraisers. (a) Appraisers will be used as follows: (1) Appraisers should be used in all claims where an appraisal is reasonably necessary and useful in effectuating the administrative settlement of the claim. Appraisals may not be economically feasible in some cases involving property damage of less than $100 per item and the extent of damage may be determined by personal inspection and agreement with the claimant. (2) Where an appraisal is considered necessary, the claims officer and claimant should mutually agree, whenever possible, upon a disinterested appraiser after determining the approximate cost of the appraisal. The method of payment should be agreed upon in advance. (i) If the claimant pays for the appraisal and can substantiate payment thereof by a paid bill or cancelled check, such cost is a reimbursable element of damage. (ii) If the DA is absorbing the cost of the appraisal, payment is made from Appropriations, Operation and Maintenance, Army (AR 37-108, paragraph 3-74). (3) If a single appraiser cannot be agreed upon, a joint appraisal can be conducted (that is one in which an appraiser chosen by claimant and an appraiser chosen by the Government both examine the property and submit their respective appraisals). Joint appraisals should be coordinated and monitored by the claims officer. The cost of a single or joint appraisal should be commensurate with the amount of damage allegedly sustained and the fee charged by other appraisers for similar work. (b) Appraisals by other organizations within the DA, the other Armed Services, or other Federal agencies may be used in addition to or in lieu of independent appraisal when obtainable. Other organizations within DA may be called upon to furnish such appraisals; for example, engineer districts will furnish an appraiser, if available, in regard to damage to buildings or diminution in value of real property, provided the requesting office defrays travel expenses for the individual's TDY. Sec. 536.27 Independent medical examinations. (a) In claims involving serious personal injuries, for example, cases in which there is an allegation of temporary or permanent disability, the claimant should be examined by an independent physician, or other medical specialist, depending upon the nature and extent of the injuries. The necessity for, and the cost of, the examination should be commensurate with the severity of the injuries allegedly sustained and the fee charged by other examiners for similar work. To preclude duplication of effort and expense, both claimant and the claims officer must agree, in advance, upon the following: (1) The examiner chosen to conduct the examination and the location of the medical facility (whether governmental or civilian). (2) That the examiner's report constitutes the best evidence of the nature and extent of claimant's injuries. (3) The method of paying for the examination. (b) The necessity for conducting the medical examination must be approved by the claims office having monetary jurisdiction over the largest claim or potential claim arising out of the incident. If a medical report is submitted in conjunction with the filing of a claim, such report should be included in the file. (c) Payment of a civilian examiner's fee can be accomplished in either of the following two ways: (1) The claimant can incur the cost of the examination and submit a paid receipt or cancelled check, which constitutes a reimbursable element of damage in evaluating the claim. (2) The DA can absorb the cost of the examination (payment is made from Appropriations, Operation and Maintenance, Army (AR 37-108, paragraph 3-74)) by the claims office having responsibility for investigating the claim. (d) As to an examination costing in excess of $750 or when local funds are exhausted, a request for funding may be directed to Commander, USARCS with appropriate justification. (e) If the parties cannot agree upon an independent examiner, and if either the examiner chosen by the claimant or the results of the examination are not acceptable, the Government may demand that the claimant be examined by an examiner acceptable to the Government. (f) Examinations of claimants at Army medical treatment facilities are authorized by AR 40-3. Such examinations may be used in addition to or in lieu of the foregoing where indicated. Sec. 536.28 Effect on award of other payments to claimant. The total award to which the claimant (and subrogees) may be entitled normally will be computed as follows: (a) Determine the total of the loss or damage suffered. (b) Deduct from the total loss or damage suffered any payment, compensation, or benefit the claimant has received from the following sources: (1) The U.S. or ARNG employee/member who caused the damage. (2) The U.S. or ARNG employee's/member's insurer. (3) Any person or agency in a surety relationship with the U.S. employee; or (4) Any joint tortfeasor or insurer, to include Government contractors under contracts or in jurisdictions where it is permissible to obtain contribution or indemnity from the contractor in settlement of claims by contractor employees and third parties. (5) Any advance payment made pursuant to the section entitled ``advance payments'' of this subpart. (6) Any benefit or compensation based directly or indirectly on an employer-employee relationship with the United States or Government contractor and received at the expense of the United States, including but not limited to medical or hospital services, burial expenses, death gratuities, disability payment, or pensions. (7) The State (Commonwealth and so forth) whose employee or ARNG member (32 U.S.C. section 101(3) caused or generated an incident that was a proximate cause of the resulting damages. (8) Value of Federal medical care. (9) Benefits paid by the Department of Veterans Affairs (VA) that are intended to compensate the same elements of damage. When the claimant is receiving money benefits from the VA under 38 U.S.C. 351 for a nonservice connected disability or death based on the injury that is the subject of the claim, acceptance of a settlement or an award under the FTCA will discontinue the VA monetary benefits until the amount that would have otherwise been received in VA monetary benefits is equal to the total amount of the agreement or award including attorney fees. While monetary benefits received under 38 U.S.C. 351 must be discontinued as above, medical benefits, that is, VA medical care may continue provided the settlement or award expressly provides for such continuance and the appropriate VA official is informed of such continuance. (10) When the claimant is receiving money benefits under 38 U.S.C. 410b for non-service connected death, arising from the injury that is the subject of the claim, acceptance of a settlement or award under the FTCA or under any other tort procedure will discontinue the VA benefits until the amount that would have otherwise been received in VA benefits is equal to the amount of the total settlement or award including attorney fees. The discontinuation of monetary benefits under 38 U.S.C. 410b has no effect on the receipt of other VA benefits. The claimant should be informed of the foregoing prior to the conclusion of any settlement and thus afforded an opportunity to make appropriate adjustment in the amount being negotiated. (11) The value of other Federal benefits to which the claimant did not contribute, or at least to the extent they are funded from general revenue appropriations. (12) From collateral sources where permitted by State law (for example, State or Federal workers' compensation, social security, private health, accident, and disability benefits paid as a result of injuries caused by a health care provider). (c) No deduction will be made for any payment the claimant has received by way of voluntary contributions, such as donations of charitable organizations. (d) Where a payment has been made to the claimant by his or her insurers or other subrogee, or under workmen's compensation insurance coverage if subrogated interests are allowable, the award based on total damages will be apportioned in relation to their separate interests (Sec. 536.20). (e) After deduction of permissible collateral and noncollateral sources, also deduct that portion of the loss or damage believed to have been caused by the negligence of the claimant, third parties whose negligence can be imputed to the claimant, or joint tortfeasors who are liable for their share of the negligence (for example, where some form of the Uniform Contribution Among Joint Tortfeasors Act has been passed). Sec. 536.29 Claims with more than one potential source of recovery. (a) The Government seeks to avoid multiple recovery (that is, claimants seeking recovery from more than one potential source) and to minimize the award it must make. The claims investigation should therefore identify other parties potentially liable to the claimant and/or their insurance carriers; indicate the status of any claims made or include a statement that none has been made so that it can be assured there is only one recovery and the Government does not pay a disproportionate share. Where no claim has been made by the claimant against others potentially liable, if applicable State law grants the Government the right to indemnity or contribution, and it is felt the Government may be entitled to either under the facts developed by the claims investigation, the claims officer or attorney should formally notify the other parties of their 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 (Sec. 536.28), which can be deducted from the total loss or damage. Accordingly, a careful review must be made of applicable State laws regarding joint and several liability, indemnity, contribution, comparative negligence, and the collateral source doctrine. (b) If a demand by a claimant or an inquiry by a potential claimant is directed solely to the Army, where it appears that the responsible Army employee may have applicable insurance coverage, the employee should be queried as to whether he or she has liability insurance. (1) If so, determine if his or her insurer has made or will make any payment to claimant. Under applicable State laws, the United States may also be an insured entitled to coverage under the employee's liability policy. (See 16 ALR3d 1411; United States v. State Farm Mutual Ins. Co., 245 F. Supp. 58 (D. Ore. 1965.)) Therefore, where there may be applicable insurance coverage, the policy language should be reviewed, together with the rules and regulations of the State insurance regulatory body, or determine whether-- (i) The United States comes within the definition of ``insured''. (ii) The exclusion of the United States from policy coverage conforms with state laws and policy. (iii) Appropriate consideration has been given for a policy where the United States has been excluded from coverage. (2) If the employee refuses to cooperate in providing this information, he or she should be advised to comply with the notice requirements of the insurance policy and to request the insurance carrier to contact the claims officer or attorney. The case should be followed to ascertain whether the employee's insurer has made or will make any payment to the claimant before deciding whether to settle the claim against the Government. Normally, the award, if any, to the claimant will be reduced by the amount of the payment of the employee's insurance carrier. (c) If the employee is the sole target of the claim and Army claims authorities arrange to have the claim made against the Government, the employee should be required to notify his or her insurance carrier according to the policy and inform Army claims authorities of the name of the insurance carrier and details of the coverage. Except when the driver's statute is applicable, the insurance carrier is expected to participate in the negotiation of the claims settlement and to pay its fair share of any award to the claimant. (d) Where the responsible Army employee is ``on loan'' to another employer other than the United States (for example, an ROTC instructor at a civilian institution or performing duties for a foreign government), it should be determined whether there is applicable statutory or insurance coverage concerning the acts of the responsible employee and appropriate contribution or indemnification should be sought. In the case of foreign governments, applicable treaties or agreements are controlling. (e) A great many claims cognizable under the FTCA are now settled on a compromise basis. A major consideration in many such settlements is the identification of other sources of recovery. This is true in a variety of factual situations where there is a potential joint tortfeasor; for example, multi-vehicle accidents with multiple drivers and guest passengers, State or local government involvement, contractors performing non-routine tasks for the Government, medical treatment rendered to claimants by non-Government employees, or incidents caused by a member or employee of the military department of a State or Commonwealth with whom the DA does not have a cost-sharing agreement. The law of the jurisdiction regarding joint and several liability, indemnity, and contribution may permit shared financial responsibility, but even in jurisdictions that do not permit contribution, a compromise settlement can be reached with the other tortfeasor's insurance company paying a portion of the total amount of the claim against the Government. For these reasons, every effort should be made to identify the insurance of all potential tortfeasers involved and the status of any claims made, and to demand contribution or indemnity where substantial reason exists to believe that liability for the loss or damage should be shared. (f) When a claim is filed against the Government under a chapter that does not permit the payment of a subrogated interest (subparts E, J, K), it is important to ensure that full information is obtained from the claimant regarding insurance coverage since it is the legislative intent of the statutes upon which these chapters are based that insurance coverage be fully utilized before using appropriated funds to pay the claims. Settlement Procedures Sec. 536.30 Settlement. (a) General. Settlement means denial or payment of a claim in full or in part. When an approval or settlement authority determines that a claim is meritorious in an amount within his or her monetary jurisdiction, the claim will be approved in that amount under the statute determined to be proper regardless of the statutory basis asserted by the claimant. Every effort will be made to settle claims at the lowest level possible commensurate with the actual value of the claim. (b) Award of full amount claimed. If an approval or settlement authority approves a claim in full, the claim will be certified for payment to the appropriate disbursing officer. Enclosures listed in Sec. 536.35 will be forwarded with the claim. The claimant will be notified of the action taken on the claim. A settlement agreement is required prior to payment. (c) Award of less than full amount. When an approval or settlement authority determines that a claim is meritorious in part, he or she will-- (1) Notify the claimant in writing of his or her action. (2) Request the execution of a settlement agreement (in triplicate) in final and complete settlement of the claim in the reduced amount. (3) If an approval authority, inform the claimant that if he or she does not desire to accept the award, he or she should indicate in the reply the reasons for rejection. If a settlement authority, and the action is taken under subparts C or F, inform the claimant of the right to appeal. (See Sec. 536.63 and Sec. 536.103.) DA Pam 27-162 provides sample formats for letters notifying claimants of the actions taken on their claims. (Figure 5-10 is to be used by field approving and settlement authorities; figures 5-8 through 5-11 are to be used by claims authorities in conjunction with Sec. 536.37 of this part.) (d) Nonacceptance of reduced award. When a claimant rejects a partial award, the approval authority may reconsider the matter and, if justified, make further efforts to settle the claim. When further efforts to settle appear unwarranted, the claim and related file will be forwarded to the settlement authority having jurisdiction over the largest claim or potential claim arising out of the incident with a memorandum of opinion. The claimant should be advised of such referral. (e) Civil works claims. Engineer civil works claims settled under the provisions of the FTCA in an amount of $2,500 or less normally are paid out of funds controlled by the COE rather than claims appropriations. Unsettled claims in this category should, therefore, be forwarded to the Commander, USARCS. An information copy will be sent to the COE, ATTN: Chief Counsel, unless the latter waives that requirement. Civil works claims received outside engineer channels should be forwarded without further action to the district or division engineer in whose area the incident occurred, or to the COE, ATTN: Chief Counsel. (f) Settlement of property damage claims. All claims submitted for only property damage or for only personal injury should be evaluated for other potential claims. Under tort claims statutes, only one payment may be made to a claimant on all claims arising out of a single incident. Therefore, a property damage claim arising from an incident in which the claimant sustained injury should not be paid unless the claimant executes a release for any potential injury claim. Likewise, when a property damage claim is settled the claimant should be informed that subsequent claims for hidden damage or loss of use are precluded by the settlement. Sec. 536.31 Claims forwarded without settlement. (a) Claims beyond monetary jurisdiction. If the chief of a command claims service or the head of a claims office considers a claim meritorious in an amount exceeding their jurisdiction, they will forward the claim with a memorandum of opinion to the settlement authority having jurisdiction over the largest claim or potential claim arising out of the incident. The claimant should be informed of this referral. In most cases the claimant should not be informed of the amount of award recommended. However, for claims arising under the Foreign Claims Act notice of the amount recommended may be required in accordance with Sec. 536.156. (b) Claims recommended for disapproval. If a claim is forwarded to higher authority with a recommendation for denial, the claimant will be advised of this referral but not of the recommendation. (c) Companion claim. When two or more claims arising from the same incident are by reason of differences in amounts within the monetary jurisdiction of different approval or settlement authorities, all such claims will be forwarded to the authority having jurisdiction over the claim presented in the greatest amount. This authority may either settle the claims or return the claim to the appropriate field claims office for settlement in accordance with his or her guidance. (1) The same procedure will be followed when a potential claim exists in an amount estimated to be beyond the jurisdiction of the approval or settlement authority actually considering the matter. For example, the foregoing applies when a small subrogated property damage claim is received arising from an incident in which severe personal injury or death has occurred but to which no claim has yet been filed. In a case of clear liability, authorization to settle the claim within the monetary jurisdiction of the requesting officer may be obtained telephonically or by other expeditious means. (2) Similarly, where there is a claim for property damage and no evidence (for example, police report, report of survey, collateral accident investigation, and witness interviews) of personal injury, the property damage claim may be settled by the authority having jurisdiction. However, where there is evidence of personal injury, the foregoing caveat regarding settlement and payment of lesser claims will apply. In such instances the claimant will be informed that settlement of a property damage claim will preclude settlement of a subsequently filed personal injury claim and vice versa. (See Sec. 536.176 on personnel claims and Sec. 537.32 on companion claims in litigation.) (d) Property claim of a claims authority or superior. A claim arising from loss or damage to the property of an approval or settlement authority or his or her superior officer in the chain of command will be forwarded without recommendation to the next higher settlement authority (in the case of a division, this would be a corps level settlement authority; in an overseas area, this includes a command claims service) or to USARCS. Sec. 536.32 Settlement agreement. (a) General. (1) Except under subpart K, if a claim is determined to be meritorious in an amount less than claimed, or if a claim involving personal injuries or death is approved in full, a settlement agreement will be obtained prior to payment. A settlement agreement may be required in other instances when, in the opinion of the adjudicating authority, good legal practice so dictates; for example, where family or other multiple interests may be involved. (2) A DA Form 1666 may be used for settlement of claims under the FTCA for less than $2,500 and for all other claims payable from Army funds. Claims payable in excess of $2500 under the FTCA will be settled using Standard Form 1145, Voucher for Payment Under the Federal Tort Claims Act. In some cases a special settlement agreement may be necessary to reflect the full understanding of the parties. However, all such special agreements should incorporate the language of the acceptance block on the Standard Form 1145. (3) Acceptance by a claimant of an award under subparts C and K constitutes a full and final settlement and release of any and all claims against the United States and against the military or civilian personnel whose act or omission gave rise to the claim. The claimant should be so advised prior to the initiation of negotiations. Where this is done orally and the claimant is unrepresented, a memorandum of the conversation should be placed in the file and a copy furnished to the claimant. Also, settlement negotiations with unrepresented claimants should also be preserved in the form of memoranda retained in the file with a copy furnished to the claimant. While a settlement agreement is not required in claims adjudicated under subpart K, the settlement authority approving payment may require one at his or her discretion. (b) Claims involving minors. (1) Generally, only a court-appointed guardian of the estate of a minor, or a person performing a similar function under the supervision of a court, can execute a binding settlement agreement relative to a minor's claim. Therefore, a guardian of the estate of the minor or similar functionary must be appointed by a court of competent jurisdiction and must execute a settlement agreement before a claim is approved and paid. (See Sec. 536.35.) However, this requirement can be eliminated and the settlement agreement can be signed by a parent, next-of-kin, or a friend if the contemplated payment is small and the cost of obtaining a court- appointed guardian would materially deplete the award. (2) In foreign countries where the amount agreed to does not exceed $2,500.00, the requirement for obtaining a guardian may be eliminated. However, in areas where the FTCA (subpart D) applies, local law should be consulted as a basis for determining whether a court appointed guardian should be required. The requirement to appoint a guardian should not be imposed until a particular claim is determined to be meritorious in an amount that would require the appointment of a guardian. The claimant should be advised of this requirement well in advance of settlement negotiations so that the cost of establishing guardianship can be considered by the claimant as a factor in evaluating the claim. This requirement also can be eliminated if local law authorizes or requires a claim such as for the death of a parent of the minor, to be presented on behalf of the estate of the decedent by an administrator, administratrix, or the like. In such cases, a settlement agreement signed by the administrator, administratrix, or the like will suffice if, under local law, such action is binding on the minor. (3) The above provisions are in addition to, not in lieu of, the requirements of Sec. 536.20(a)(5). (c) Claims involving incompetents. The above stated principles may also be applied in appropriate cases involving incompetents. Authority to waive the foregoing requirements in appropriate cases is delegated to the Commander, USARCS. If it is felt that the foregoing requirements are materially impeding settlement of the claim, the matter should be brought to the attention of the Commander, USARCS for appropriate resolution. (d) Claims involving workmen's compensation carriers. The settlement of a claim involving a claimant who has elected to receive workmen's compensation benefits under local law may require the consent of the workmen's compensation carrier and in certain jurisdictions the State agency with authority over workmen's compensation awards. Accordingly, claims approval and settlement authorities should be aware of local requirements. Sec. 536.33 Vouchers. Vouchers are prepared in an original and three copies. The original and two copies (one marked as comeback copy) will be transmitted to the disbursing office and one copy retained as a suspense copy. Upon payment of the claim, the disbursing office will return the comeback copy, which will be included in the file when it is transmitted to the Commander, USARCS for post settlement review. Sec. 536.34 Accounting codes. (a) Certifying an approved claim for payment creates an obligation against the claims appropriation for the fiscal year then in progress. Accordingly, the voucher will bear the appropriate accounting code for both the appropriation charged and the current fiscal year, irrespective of the date the claim accrued or was filed. Confusion sometimes arises at the end of a fiscal year; for example, an approved claim is certified for payment on 28 September (the last business day of a fiscal year), but it is obvious that it will not be actually paid (i.e., a check issued by the disbursing activity) until on or after 1 October (the first day of the following fiscal year). At the time the check is issued, the accounting code will not be advanced to the next fiscal year. Claims checks are issued using the accounting code of the fiscal year in which the claim was certified for payment (i.e., the fiscal year in which the voucher was signed). (b) The accounting code for each type of claim remains constant, except for the third digit of the code which is the second digit of the fiscal year (e.g., ``0'' for ``FY 90''). The accounting codes for claims appropriations are published each fiscal year in the AR 37-100 series. Accounting codes used in the payment of claims and refunds, and their references, are listed below; the ``X'' denotes the space where the second digit of the fiscal year appears. Table B-1.--Frequently Used Claims Accounting Codes Accounting code: 21X2020 22-0205 P202097.23-4230 FAJA S99999, 21X2020 22- 0305 P202097.23-4230 FAJA S99999. Reference: Subpart C (Military Claims Act). Accounting code: 21X2020 22-0203 P202097.21-4230 FAJA S99999, 21X2020 22- 0303 P202097.21-4230 FAJA S99999. Reference: Subpart C (Military Claims Act). Use symbol only if claim approved for $2,500 or less--if approved for more than $2,500, allotment symbol will be filled in by GAO. Accounting code: 21X2020 22-0208 P202097.26-4230 FAJA S99999, 21X2020 22- 0308 P202097.26-4230 FAJA S99999. Reference: Subpart E (Nonscope Claims). Accounting code: 21X2020 22-0206 P202097.24-4230 FAJA S99999, 21X2020 22- 0306 P202097.24-4230 FAJA S99999. Reference: Subpart F (National Guard Claims Act). Accounting code: 21X2020 22-0207 P202097.25-4230 FAJA S99999, 21X2020 22- 0307 P202097.25-4230 FAJA S99999. Reference: Subpart H (Maritime Claims). Accounting code: 21X2020 22-0204 P202097.26-4230 FAJA S99999, 21X2020 22- 0304 P202097.26-4230 FAJA S99999. Reference: Subpart J (Foreign Claims Act). Accounting code: 21X2020 22-0201 P202097.11-4230 FAJA S99999, 21X2020 22- 0301 P202097.11-4230 FAJA S99999. Reference: Subpart K (Personnel Claims Act). Sec. 536.35 Payment. (a) General. Except as provided in Sec. 536.35(a)(1), when a claim has been determined to be payable, the approval or settlement authority will transmit the following to the appropriate disbursing office: (1) The voucher (SF 1034 or SF 1145 as appropriate) in triplicate, with a request that one copy be returned with voucher number and date of payment noted thereon. (2) Two copies of-- (i) The claim. (Under subpart K this means DD Form 1842 (Claim for Loss of or Damage to Personal Property Incident to Service).) (ii) The settlement agreement, as required. (iii) Actions and other documents as required; for example, DA Form 1668 signed by the approving or settlement authority (as the substitute for action in small claims under subparts C, D, E, F, H or J) attorney general approval and court approval on claims for minors and incompetents. (iv) Original power of attorney, where appropriate. (b) Electronic payment procedures. At installations where electronic payment procedures have been implemented, the approving or settlement authority will electronically transmit payment information to the servicing finance and accounting office. The claim, the settlement agreement, any actions or other required documents, and the original power of attorney will not be transmitted to the finance and accounting office, but will be retained in the claims file. Instead, a ``payment report'' produced by the claims automation program provided such offices by USARCS, which evidences or supports the fact that a claims official has approved a claim payment, will be transmitted to the disbursing activity in accordance with locally established procedures. The method of transmission used should not result in avoidable or significant delay in the issuance of checks for claims payments. The payment report includes-- (1) The name of the payee. (2) The payee's social security number (if available). (3) The payee's address. (4) The date the claim was filed. (5) The claim number. (6) The amount claimed. (7) The amount of the approved payment. (8) The date the payment was recorded in claims records. (9) The claims office identification. (10) The claims office's office code. (c) Payments in excess of $2,500 under the FTCA (Sec. 536.78). Claims paid in excess of $2,500 under the FTCA will be submitted to the GAO with the same documentation as indicated in (a) above but with the following exceptions: (1) Standard Form 1145 will be signed by the settlement authority on the lower left side only. The space on the right side for the authorized certifying officer will not be signed. (i) Where a minor is payee, the full legal name of the individual should be listed on the voucher; for example, ``John Doe, Sr., as guardian of John Doe, Jr.'' Descriptive words such as ``Mrs. John Doe and her three minor children'' should not be used. (ii) The accounting classification will not be placed on the voucher. This is accomplished by the GAO as the payment is made from Treasury funds. (2) The letter of transmittal to the GAO will include a statement that the individual whose signature appears on the voucher as certifying authority is the person having authority to act under the provisions of the FTCA and Sec. 536.80. (3) The Attorney General will approve payments in excess of $25,000 in lieu of action of the approval or settlement authority. (d) Advance payment. When it has been determined that an advance payment will be made, the approval or settlement authority will transmit to the appropriate disbursing officer-- (1) SF 1034 (in triplicate) with a request that one copy be returned with voucher number and date of payment. (2) The original copy and one copy of the action by the approval or settlement authority authorizing advance payment and the Advance Payment Acceptance Agreement. (See Sec. 536.47) (e) Payment involving minors. Payment will be made to the individual who executed the settlement agreement on behalf of the minor. (f) Lost, stolen, forged, destroyed, or undeliverable Government checks. Army disbursing officers have the authority to issue substitute checks for checks that have been issued by the Army and that are subsequently lost, destroyed, or rendered undeliverable. (See AR 37103, chap. 4, secs. VII through X.) Some Federal agencies do not yet have this authority. Inquiries from payee or endorsees of Army-issued checks should be referred to an Army comptroller; inquiries regarding other agencies should be referred to the specific agency involved. For claims paid by the GAO, if the Treasury check is lost or stolen, the payee or endorsee should be referred to the Check Forgery Insurance Fund, Department of the Treasury (31 U.S.C 3343, 31 CFR 235.1 through 235.6). The Fund can reimburse such losses provided the specific requirements of the Statute are met. The Fund is administered by the Commissioner, Financial Management Service, Department of the Treasury, 3700 East- West Highway, Hyattsville, MD 20782. Sec. 536.36 Effect of payment. Acceptance of an award by the claimant, except for advance payment, constitutes for the United States, military personnel, or civilian employee whose act or omission gave rise to the claim, a release from all liability to the claimant, based on the act or omission. However, on tort claims only one payment may be made for all damages a claimant sustains from an incident. Therefore, a signed unconditional settlement agreement is needed to ensure that the claimant understands the finality of accepting payment. Sec. 536.37 Notification as to denial of claims. (a) General. The nature and extent of the written notification to the claimant as to the denial of his or her claim should be based on whether the claimant has a judicial remedy following denial or an administrative recourse to appeal. (b) Final actions under subpart D. If the settlement authority has information that could be a persuasive factor for the claimant as to whether to resort to litigation, such information may be orally transmitted to the claimant and, in appropriate cases, released under normal procedures in accordance with AR 340-17 or AR 340-21. However, the written notification of the denial should be general in nature; for example, denial on the weaker ground of contributory negligence should be avoided and the inclination should be to deny on the basis that the claimant was solely responsible for the incident. The claimant will be informed in writing of his or her right to bring an action in the appropriate U.S. District Court not later than 6 months after the date of mailing of the notification. See DA Pam 27-162, figures 5-8 and 5-9. (c) Final actions under subparts C, F and J. Final agency actions under subparts C, F or J are subject to appeal and the claimant will be so informed. Also, the notice of final action will be sufficiently detailed to provide the claimant with an opportunity to know and attempt to overcome the basis for denial. The claimant should not be afforded a valid basis for claiming surprise when an issue adverse to him or her is asserted as a basis for denying the appeal (see DA Pam 27-162, figs 5-8 and 5-9). (d) Denials on jurisdictional grounds. Regardless of the nature of the claim or the statute under which it may be considered, claims denied on jurisdictional grounds that are valid, certain, and not easily overcome (and for this reason no detailed investigation as to the merits of the claim is conducted) should contain in the denial letter a statement that the denial on such grounds is not to be construed as an expression of opinion on the merits of the claim or an admission of liability. If sufficient factual information is available to make a tentative ruling on the merits of the claim, liability may be expressly denied. (e) Claims that may be considered under more than one chapter. In doubtful cases as to whether subparts C, D and F are the appropriate chapters to consider the claim, the claimant will be advised of the alternatives; for example, the right to sue or the right to appeal. Similarly, a claimant may be advised of his or her alternative remedies when the claimant is a military member and the issue of ``incident to service'' is not clear. (f) Denial after litigation. On those claims cognizable under the FTCA in which the claimant files suit after six months without agency action, a formal denial will be sent to the claimant unless the Assistant United States Attorney responsible for the litigation of the suit expressly directs otherwise. The denial will be on the basis that the claim is no longer amenable to administrative settlement. Other reasons for denial may also be given. Small Claims Sec. 536.38 General. This section provides an expeditious procedure for the investigation and payment of claims (regardless of the amount claimed) that may be without extensive investigation. If it appears that a claim should be denied or cannot be settled within the limits specified in this section, it will be fully investigated under normal procedures. The use of small claims procedures is not mandatory; however, these procedures should be used whenever considered appropriate in the judgment of the claims approval or settlement authority, as considerable processing time and expense is usually saved thereby. If a fully investigated claim is received by an approval or settlement authority, which in his or her opinion could properly have been processed under small claims procedures, the claim will be settled in accordance with normal procedures. Appropriate corrective action will be taken to ensure the use of small claims procedures in similar future cases. Sec. 536.39 Investigation. The investigation will be made so as to develop most expeditiously the facts necessary to determine whether the claim is meritorious and in what amount. The evidence required may be obtained by telephone, from incident reports, and other forms of hearsay evidence. Written statements of witnesses, written estimates of repairs, and the like are not required. The approving authority must be convinced and state on DA Form 1668 that-- (a) The United States is liable for the damage or injury incurred. (b) The claimant is a proper claimant. (c) The amount approved, as claimed or agreed upon, is reasonably substantiated. Sec. 536.40 Report of investigation. When it appears that a small claim may arise, the report of investigation will be prepared on DA Form 1668. The investigator will append a brief summary of the evidence developed. The summary may be used as a basis for completion of the investigation after a claim has been filed. This report is exempted from control in accordance with AR 335-15, paragraph 7-2t. Sec. 536.41 Processing. (a) If the amount claimed under chapter 11 is not more than $1,000, or in the case of a tort claim is not more than $2500, and is considered meritorious in full, the claims JA/attorney will complete DD Form 1842 or DA Form 1668 and pay the claim. (b) A claim under subpart K is meritorious in an amount of $1,000 or less, or if a tort claim is meritorious in the amount of $2500 or less, the claim JA/attorney may settle the claim. (c) After coordination with the responsible approving or settlement authority, unit claims officers may be authorized to attempt to procure a settlement agreement. If a settlement agreement is obtained, the claims officer will complete the small claims certificate for amount of recommended payment and transmit it, in triplicate, with the claim and settlement agreement, to the approval or settlement authority. (d) If a claimant refuses to accept a sum offered under this section or if it appears that a claim should be disapproved, the small claims procedures will not be employed; the claim will be fully investigated and processed. (e) Nonappropriated fund claims will be forwarded by the approval or settlement authority for payment as prescribed in subpart L. (f) Claims under chapter 11. DA Form 1668 will not be employed in the settlement of small claims under chapter 11. Such a claim will be submitted on DD Form 1842. Procedures in subpart K will be used. Sec. 536.42 Settlement agreement. When a claimant is available and agrees to accept a sum less than originally claimed, he or she will be requested to sign, in ink, a statement to that effect on any open space on each copy of the claim form (SF 95 (Claim for Damage, Injury, or Death)). If not readily available, the claimant will be requested to sign and return in triplicate a DA Form 1666 or Standard Form 1145, which will be attached to the claim form. Sec. 536.43 Payment. (a) If a small claim is payable under any chapter except subparts G and I, the approval or settlement authority will allow the procedures of either Sec. 536.35(a) and Sec. 536.35(a)(1). (b) [Reserved] (c) Except for claims cognizable under subpart K and personnel claims cognizable under subpart L an approval authority who has been appointed an agent officer under AR 37-103, chapter 15, may pay the claim, and will require the claimant to sign, in triplicate, a receipt in the following language: ---------------------------------------------------------------------- (Date) I hereby acknowledge receipt of ________________ in full satisfaction and final settlement of the within claim. ---------------------------------------------------------------------- (Signature) ---------------------------------------------------------------------- (Name printed) (d) This above receipt may be printed, stamped, typed, or written in ink in any available space on the front or back of the signed claim form. If not on the claim form, the receipt will be modified to identify and will be firmly affixed to the appropriate claim. Advance Payments Sec. 536.44 Authority. This section implements the act of 8 September 1961 (75 Stat. 488, 10 U.S.C 2736) as amended by Public Law 90-521 (82 Stat. 874), Public Law 98-564, 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 above. (See Sec. 536.178 for emergency partial payments in personnel claims, which are not governed by 10 U.S.C 2736.) Sec. 536.45 Conditions for advance payment. (a) An advance payment not in excess of $100,000 is authorized in the limited category of claims resulting in immediate hardship arising from incidents that are payable under subparts C, F or J. An advance payment is authorized only under the following circumstances: (1) The claim must be determined to be cognizable and meritorious under the provisions of subparts C, F or J. (2) There exists an immediate need of the person who suffered an injury, damage, or loss, or of the family of a person who was killed for food, clothing, shelter, medical, burial expenses, other necessities, or other resources for such expenses that are not reasonably available. (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. Sec. 536.46 Authorization. The authorities listed below are authorized to make advance payments as follows: (a) Under subparts C and F of this part, TJAG and TAJAG may make advance payments in amounts not exceeding $100,000; the Commander, USARCS, in amounts not exceeding $25,000; and the authorities designated in Sec. 536.61(a) (4) and (5) and Sec. 536.103(c)(3), in amounts not exceeding $10,000, subject to advance coordination with USARCS if the estimated total value of the claim exceeds their monetary authority. Requests for advance payments in excess of $10,000 will be forwarded to USARCS for processing. (b) Under subpart J of this part, three-member claims commissions may make advance payments under the Foreign Claims Act in amounts not exceeding $10,000, subject to advance coordination with USARCS if the estimated total value of the claim exceeds their monetary authority. Sec. 536.47 Advance payment acceptance agreement. Prior to making any advance payment, the authority approving such payment will obtain an executed acceptance agreement from the claimants. Subpart C--Claims Cognizable Under the Military Claims Act Sec. 536.48 Statutory authority. The statutory authority for this chapter is contained in the act of 10 August 1956 (70A Stat. 153, 10 U.S.C. 2733), commonly referred to as the ``Military Claims Act,'' as amended by Public Law 90-522, 26 September 1968 (82 Stat. 875), Public Law 90-525, 26 September 1968 (82 Stat. 877), Public Law 93-336, 8 July 1974; 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 the act of 30 October 1984, Public Law 98-564. Sec. 536.49 Scope. This subpart is applicable in all locations and prescribes the substantive bases and special procedural requirements for the settlement of claims against the United States for death; personal injury; or damage, loss, or destruction of property-- (a) Caused by military personnel or civilian employees of the DA acting within the scope of their employment. (b) Incident to the noncombat activities of the DA, provided such claim is not for personal injury or death of a member of the Armed Forces or Coast Guard or civilian officer or employee whose injury or death is incident to service. Sec. 536.50 Claims payable. (a) General. Unless otherwise prescribed, a claim for personal injury, death, or damage or loss of real or personal property is payable under this chapter when-- (1) Caused by an act or omission determined to be negligent, wrongful, or otherwise involving fault of military personnel or civilian officers or employees of the DA acting within the scope of their employment, including certain Red Cross volunteers meeting the criteria in AR 40-3, paragraph 2-42, or (2) Incident to the noncombat activities of the DA. (b) Property. The loss or damage to property that may be the subject of claims under this chapter includes-- (1) Real property used and occupied under lease, express or implied, or otherwise (for example, in connection with training, field exercises, or maneuvers). An allowance may be made for the use and occupancy of real property arising out of trespass or other tort, even though claimed as rent. (See DA PAM 27-162, paragraph 8-46.) (2) Personal property bailed to the Government under an agreement, express or implied, unless the owner has expressly assumed the risk of damage or loss. Some losses may be payable using Operations and Maintenance, Army funds. (See DA Pam 27-162, paragraph 8-41.) Clothing damage or loss claims arising out of the operation of an Army Quartermaster laundry are considered to be incident to service and are payable only if claimant is not a proper claimant under subpart K. (3) Registered or insured mail in the possession of the DA, even though the loss was caused by a criminal act. (See DA Pam 27-162, paragraph 8-61 for settlement of claims by the U.S. Postal Service.) (c) Effect of FTCA. A claim may be settled in the United States only if the FTCA has been judicially determined not to be applicable to claims of this nature or if the claim arose incident to noncombat activities. (d) Advance payments. Advance payments (10 U.S.C. 2736, as amended) in partial payment of meritorious claims to alleviate immediate hardship are authorized as provided in subpart B. Sec. 536.51 Claims not payable. A claim is not payable that-- (a) Results wholly from the negligent or wrongful act of the claimant or agent. (See section 536.55(b) on comparative negligence.) (b) Is for reimbursement for medical, hospital, or burial expenses furnished at the expense of the United States. (c) Is purely contractual in nature. (d) Arises from private as distinguished from Government transactions. (e) Is based solely on compassionate grounds. (f) Is for war trophies or articles intended directly or indirectly for persons other than 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 will be made for any item when the evidence indicates that the acquisition, possession, or transportation thereof was in violation of DA directives. (g) Is for rent, damage, or other payments involving the acquisition, use, possession, or disposition of real property or interests therein by and for the DA, except as authorized by Sec. 536.50(b). Real estate claims founded upon contract are generally processed under AR 405-15. (See DA Pam 27-162, paragraph 8-46.) (h) Is not in the best interests of the United States, is contrary to public policy, or is otherwise contrary to the basic intent of the governing statute (10 U.S.C. 2733); for example, claims by inhabitants of unfriendly foreign countries or by or based on injury or death of individuals considered to be unfriendly to the United States. When a claim is considered to be not payable for the reasons stated in this paragraph, it will be forwarded for appropriate action to the Commander, USARCS, together with the recommendations of the responsible claims office. (i) Is presented by a national, or a corporation controlled by a national, of a country at war or engaged in armed conflict with the United States, or any country allied with such enemy country unless the appropriate settlement authority determines that the claimant is and, at the time of the incident, was friendly to the United States. A prisoner of war or an interned enemy alien is not excluded as to a claim for damage, loss, or destruction of personal property in the custody of the Government otherwise payable. (j) Is for personal injury or death of a member of the Armed Forces or Coast Guard or a civilian employee that is incident to his or her service (10 U.S.C. 2733(b)(3)). (k) Is listed in section 536.75, except for claims listed in section 536.75(n) and (r). Sec. 536.52 Claims having multiple remedies. (a) Claims cognizable under other chapters. (1) Claims based upon a single act or incident cognizable under this subpart and subparts H or K will be first considered under the latter chapters; if not payable under any of those chapters, the claim will be considered under this chapter. (2) A claim may not be paid under this chapter if it is covered by the Federal Tort Claims Act (subpart E) or the Foreign Claims Act (subpart J). (See 10 U.S.C. 2733(b)(2)). (3) Where a Status of Forces Agreement or other agreement provides for host country adjudication of a claim, the treaty process may be the claimants exclusive remedy (see subpart G). Where a foreign country is responsible for adjudication of the claim under the terms of such an agreement, it may not be paid under the provisions of this chapter. If the foreign country refuses to recognize legal responsibility for the claim, or to consider it under applicable treaty provisions, the chief of a command claims service or, where the estimated value of the claim is within USARCS authority, the Commander, USARCS may authorize adjudication of the claim under this chapter. The mere fact a foreign country fails to pay the claims on its merits is not sufficient basis for invoking this authority. (b) Claims based upon multiple acts or theories of liability. Where claims cognizable under this chapter are based upon more than one act or injury and where one or more of the acts or injuries are also cognizable under the FTCA (subpart D) (for example, claims alleging acts of medical malpractice both in a foreign country and in the United States or claims alleging negligence in the conduct of a noncombat activity), the claims will be processed as follows: (1) Meritorious claims. (i) If the primary cognizable act or incident upon which the claim is based is not cognizable under subpart D, the claim may be considered and paid under this chapter. However, the settlement agreement must expressly release the United States from any further liability under the FTCA or any other statute or regulation for all acts or incidents upon which the claim was based. If the claim is over $25,000, any proposed settlement will be coordinated with USARCS prior to final action. (ii) If the primary cognizable act or incident upon which the claim is based is cognizable under subpart D, the claim will be first considered under subpart D. If the claim is determined by proper authority to be nonmeritorious under subpart D but meritorious under this subpart (for example, negligence occurred overseas but none occurred in the United States or there is no negligence in the conduct of a noncombat activity), it may be considered and paid under this subpart. However, an agreed settlement must be reached that expressly releases the United States from further liability under the FTCA or any other statute or regulation for all acts or incidents upon which the claim was based. If the claim was presented in an amount over $25,000, any proposed settlement will be coordinated with USARCS. (2) Nonmeritorious claims. Where claims are based upon multiple acts or incidents, some or all of which may be cognizable under subpart D (FTCA), extreme care will be taken prior to any disapproval based upon this chapter. Whether a claim is covered by Cognizability under the FTCA is a litigable issue. Such claims will be disapproved under this chapter only as follows: (i) A claim presented in an amount not over $25,000, may be disapproved by an office with settlement authority having jurisdiction over the claim only if the claim is determined to be nonmeritorious under both this subpart and subpart D; however the disapproval procedures established in subpart D must be fully satisfied. In such cases, the disapproval notification will advise the claimant of his or her concurrent rights to appeal the disapproval under this subpart or to institute suit under the FTCA. (See Sec. 536.63.) In case of doubt concerning the applicability of this paragraph, the question will be referred to USARCS. (ii) Claims of the type covered by this paragraph, which are presented in an amount over $25,000, will be disapproved only by the USARCS. (c) Claims in litigation. Disposition under this chapter of any claim of the type covered by this paragraph that goes into litigation in any State or Federal court under any State or Federal statute or ordinance will be suspended pending disposition of such litigation, and the claim file will be forwarded to USARCS. The Commander, USARCS, in coordination with the U.S. Department of Justice, may determine that final disposition under this chapter during pendency of the litigation is in the best interests of the United States. This paragraph will also apply to any litigation brought against any agent of the United States in his or her individual capacity that is based upon the same acts or incidents upon which a claim under the chapter is based. Sec. 536.53 Presentation of claim. (a) When claim must be presented. A claim may be settled under this chapter only if presented in writing within 2 years after it accrues. If a claim accrues in time of war or armed conflict, or if war or armed conflict intervenes within 2 years after it accrues, and if good cause is shown, the claim may be presented not later than 2 years after war or armed conflict is terminated. As used in this paragraph, a war or armed conflict is one in which any Armed Force of the United States is engaged. The dates of commencement and termination of an armed conflict must be established by concurrent resolution of Congress or by determination of the President. (b) Where claim must be presented. A claim must be presented to an agency or instrumentality of the DA. However, the statute of limitations is tolled if a claim is filed with another Government agency and forwarded to the DA within 6 months, or if the claimant makes inquiry of the DA concerning his or her claim within 6 months after it was filed with another agency of the Government. If a claim is received by an official of the DA who is not a claims approval or settlement authority under this chapter, the claim will be transmitted without delay to the nearest claims office or JA office for delivery to such an office. Sec. 536.54 Procedures. So far as not inconsistent with this chapter, the claims procedures set forth in subpart B will be followed. Subrogated claims will be processed as prescribed in Sec. 536.20(b). Sec. 536.55 Law applicable to liability. (a) Claims arising within the United States, and its territories, commonwealths and possessions. As to claims arising in the United States, its territories, commonwealths, and possessions, the law of the place where the act or omission occurred will be applied in determining liability and the effect of contributory negligence on the claimant's right to recover damages. However, theories of strict or absolute liability will not be applicable to claims under this subpart. (b) Claims arising within foreign countries. (1) For claims arising in a foreign country, liability of the United States will be assessed by reference to the law of the District of Columbia applicable to torts committed in and having their operative effect in the District (i.e. District of Columbia choice of law rules will not be applicable). The United States shall be liable in the same manner and to the same extent as a private individual under like circumstances, except that theories of absolute or strict liability may not be applied under this chapter. Damages will be determined under the provisions of Secs. 536.56 through 536.59. (2) The law of the place in which the alleged negligent act occurred will be applied to determine the effect of the claimant's own negligence on the merits of the claim. Where there is no law on this issue, the MCA requires application of traditional rules of contributory negligence. (3) In traffic accident cases, questions of negligence, and the degree of the claimant's comparative negligence, will be evaluated based on the traffic and vehicle safety laws and regulations of the country in which the accident occurred, but only to the extent they are not specifically superseded or preempted by U.S. military traffic regulations. Likewise, where a claim is based on the failure to comply with some safety or regulatory standard, the standard applicable at time and in the place where the claim arose will be used, rather than any comparable standard in the District of Columbia. Sec. 536.56 Measure of damages for property claims. (a) General. The measure of damages in property claims arising in the United States or its possessions will be determined in accordance with the law of the place where the incident occurred. The measure of damages in property claims arising overseas will be determined in accordance with the law of the District of Columbia (see Sec. 536.55(a). However, punitive or exemplary damages, including damages considered punitive in nature under 28 U.S.C. 2674, and interest on any settlement are not payable. (b) Proof of damage. The information listed below (similar to that required by 28 CFR 14.4(c) (DA Pam 27-162, appendix H)) will be submitted by a claimant to substantiate a claim. (1) Proof of ownership. (2) Detailed statement of amount claimed for each item of property. (3) Itemized receipt or estimate for all repairs. (4) Statement giving date of purchase, price and, where not economically repairable, the salvage value. (c) Appraisals. The assistance of appraisers should be used in all claims where, in the opinion of the claims officer, an appraisal is reasonably necessary and useful in effectuating administrative settlement of claims. (See Sec. 536.26 for procedures on appraisals.) Sec. 536.57 Measure of damages in injury or death claims arising in the United States or its possessions. Measure of damages in injury or death claims arising in the United States or its possessions will be assessed as follows: (a) Where an injury or an injury resulting in death arises within the United States or its possessions, the measure of damages will be determined in accordance with the law of the State or possession wherein the injury arises. However, punitive or exemplary damages, including damages considered punitive in nature under 28 U.S.C. 2674, and interest on any settlement are not payable. (b) The information listed below (similar to that required by 28 CFR 14.4(a) (DA Pam 27-162, appendix H)) will be submitted by a claimant to substantiate a wrongful death claim: (1) Authenticated death certificate or other competent evidence showing date and cause of death and age of decedent. (2) Decedent's employment and occupation at time of death, including salary or earnings and duration of last employment or occupation. (3) Names, addresses, birth dates, kinship, and marital status of survivors. (4) Identification of persons dependent on decedent for support at time of death and the degree of support provided. (5) Decedent's general physical and mental condition at time of death. (6) Itemized bills or receipts for medical and burial expenses. (7) If damages for pain and suffering are claimed, a physician's statement specifying the injuries suffered, duration of pain and suffering, drugs administered, and decedent's physical condition between time of injury and time of death. (c) The information listed below (similar to that required by 28 CFR 14.4(b) (DA Pam 27-162, appendix H)) will be submitted by a claimant to substantiate a personal injury claim: (1) Written report by the attending physician or dentist setting forth the-- (i) Nature and extent of injury. (ii) Nature and extent of treatment. (iii) Degree of temporary or permanent disability. (iv) Prognosis. (v) Period of hospitalization. (vi) Diminished earning capacity. (2) Itemized bills or receipts for medical, dental, and hospital expenses. (3) If the prognosis includes future treatment, a statement of expected expenses for such treatment. (4) If the claim includes lost time from employment, a statement by the employer showing the actual time lost and wages and/or salary lost. (5) If the claim includes lost income by a self-employed claimant, documentary evidence of such loss. Sec. 536.58 Measure of damages in injury or death claims arising in foreign countries. (a) Where a claim for an injury, or injury resulting in death, arises outside of the United States or its possessions, the elements of damages payable under this subpart will be the same as those payable in a similar claim arising under the law of the District of Columbia applicable to torts committed in and having their operative effect in the District of Columbia. The amount paid will be based on generally accepted economic principles. All awards for future payments of economic damages will be discounted to present value. Awards under this chapter will be reduced by any benefits which have been or are reasonably likely to be paid, if the benefit or payment is from the general revenues of the United States and the claimant did not contribute to or purchase the benefit. In death cases, taxes and personal consumption will be deducted from any award for lost economic contribution or lost earnings. Punitive or exemplary damages, including damages considered punitive in nature under 28 U.S.C. 2674, and interest on any settlement are not payable. (b) The information listed in Sec. 536.57 (b) or (c), as appropriate, will be submitted by the claimant to substantiate a claim. (c) A claimant who alleges a serious personal injury resulting in temporary or permanent disability should be examined by an independent physician or other medical specialist. The purpose of the examination is not just to confirm the impairment but also to help assess its extent, prognosis and treatment. See Sec. 536.27 for independent medical examination procedures. Sec. 536.59 Failure to substantiate a claim. (a) The Government is not obligated to take final action on a claim until it has been supported by the claimant with specific facts substantiated by appropriate documentary evidence, reports of investigation, medical records, or witness statements. As the burden of proof is on the claimant, the failure to substantiate a claim within a reasonable time can be the basis for denial of the claim. Upon request, the claimant must-- (1) Provide the documentation required by sections Secs. 536.56 through 536.58. (2) Undergo necessary medical examinations. (3) Permit questioning of the claimant, his or her witnesses, and treating medical personnel. (4) Submit an expert opinion in a professional negligence action. (b) Failure to comply with these requirements may provide a basis for denial of a claim, in full or in part. Sec. 536.60 Structured settlement. (a) The use of the structured settlement device by approval and settlement authorities is encouraged in all appropriate cases. A structured settlement should not be used when contrary to the desires of the claimant. (b) Notwithstanding the above, the Commander, USARCS may require or recommend to higher authority that an acceptable structured settlement be made a condition of award notwithstanding objection by the claimant or his or her representative where-- (1) Necessary to ensure adequate and secure care and compensation to a minor or otherwise incompetent claimant over a period of years; (2) Where a trust device is necessary to ensure the long-term availability of funds for anticipated further medical care; (3) Where the injured party's life expectancy cannot be reasonably determined. Sec. 536.61 Settlement authority. (a) The Secretary of the Army, the Assistant Secretary of the Army (Financial Management) as designee of the Secretary or other designee of the Secretary of the Army must approve settlements in excess of $100,000. (b) Delegations of authority. (1) Disapprovals and final offers in claims acted on under the delegations set forth herein are subject to appeal to the authorities specified in paragraph (d) of this section. (2) The TJAG and TAJAG are delegated authority to pay up to $100,000 in settlement of a claim and to disapprove a claim regardless of the amount claimed. The Commander, USARCS will process such claims as prescribed in Sec. 536.62. (3) The Commander, USARCS, or designees, are delegated authority to pay up to $25,000 in settlement of a claim and to disapprove or make a final offer in a claim regardless of the amount claimed. (4) The SJA and, subject to limitations imposed by him or her, the chief of the command claims service of the commands listed below are delegated authority to pay up to $25,000 in settlement of a claim, regardless of the amount claimed, and to disapprove or make a final offer in a claim presented in an amount not exceeding $25,000: (i) USAREUR. (ii) Eighth U.S. Army, Korea. (iii) USARSO. (5) Area claims offices are delegated authority to pay up to $15,000 in settlement of a claim, regardless of the amount claimed, and to disapprove or make a final offer in a claim presented in an amount not exceeding $15,000. (6) Claims processing offices with approval authority are delegated authority to approve, in full or in part, claims presented for $5,000 or less, and to pay claims regardless of the amount claimed provided an award of $5,000 or less is accepted in full satisfaction of the claim. (c) Settlement of multiple claims arising from a single incident. (1) Where a single act or incident gives rise to multiple claims cognizable under this chapter, and where one or more of these claims apparently cannot be settled within the jurisdiction of the authority initially acting on the claims, no final offer will be made and all claims will be forwarded with recommendation as to disposition to the authority having jurisdiction over the largest claim for a determination of liability. (2) If such authority determines that liability of the United States is established, he or she may return claims of lesser value to the field office for settlement within that office's jurisdiction. Care will be exercised by the field office to avoid compromising the discretion of the higher authority by conceding liability in claims of lesser amount. (d) Appeals. Denials or final offers on claims described as allows may be appealed to the official designated: (1) For claims presented in an amount over $100,000, final decisions on appeals will be made by The Secretary of the Army or designee. (2) For claims presented for $100,000 or less and any denied claim, regardless of the amount claimed, in which the denial was based solely upon an incident to service bar (FERES), on exclusionary language in a federal statute governing compensation of federal employees for job related injuries (see, for example, Sec. 536.75(s) and (t)) or upon the lack of timely filing, final decisions on appeals will be made by TJAG or TAJAG, except that claims presented for $25,000 or less and not acted on by the Commander, USARCS are governed by paragraph (d)(3) of this section. (3) For claims presented for $25,000 or less, final decisions on appeals will be made by the (Commander, USARCS, or his designee or the chief of a command claims service for claims acted on by an area claims office under such service's jurisdiction). See Secs. 536.63 and 536.64 for rules relating to the notification of appeal rights and processing. (e) Delegated authority. Authority delegated by this paragraph will not be exercised unless the claims settlement or approval authority has been assigned an office code. Sec. 536.62 Claims over $100,000. (a) Claims cognizable under 10 U.S.C. 2733 and this chapter, which are meritorious in amounts over $100,000, will be forwarded to the Commander, USARCS, who will negotiate a settlement subject to approval by the Secretary of the Army, the Assistant Secretary of the Army (Financial Management) as designee of the Secretary or designee, or require the claimant to state the lowest amount that will be acceptable and provide appropriate justification. Tender of a final offer by the Commander, USARCS, constitutes an action subject to appeal. The Commander, USARCS, will prepare a memorandum of law with recommendations and forward the claim to the Secretary of the Army, or designee, for final action. The Secretary, or designee, will either disapprove the claim or approve it in whole or in part. (b) If one or more claims arising from an incident are approved in an amount over $100,000, only $100,000 will be paid from the Claims Appropriation, after the execution of a settlement agreement. The excess will be reported to the Claims Division, GAO, 441 G Street, NW, Washington, DC 20548, together with documents listed in Sec. 536.35(a). Sec. 536.63 Settlement procedures. (a) Procedures. Approval and settlement authorities will follow the procedures set forth in subpart B in paying, denying, or making final offers on claims. A copy of the notification will be forwarded to Commander, USARCS. The settlement authority will notify the claimant by certified mail (return receipt requested) of a denial or final offer and the reason therefor as set forth in Sec. 536.37. The letter of notification will inform claimants of the following: (1) They must accept or appeal as provided in paragraph (b) of this section. (2) The official who will act on the appeal and that the appeal will be addressed to the settlement authority who last acted on the claim. (3) No form is prescribed for the appeal but claimants must fully set forth the grounds for appeal, or state that they appeal on the basis of the record as it exists at the time of denial or final offer. (4) The appeal must be postmarked not later than six months after the date of mailing of the notice of action on the claim. If the last day of the appeal period falls on a day on which the post office is closed, the next day on which it is open for business will be considered the final day of the appeal period. (b) Acceptance and appeal. For final offers, a settlement agreement releasing the government from all liability will be mailed along with the final offer notice. Claimants will be advised that they must either submit an appeal or accept the offer within 180 days of the date of mailing of the final offer notice. If they fail to do either, the offer will be withdrawn, the claim will be denied and the file will be closed without further recourse. (c) Companion FTCA claims. Where a claim for the same injury has been filed under subpart D, and the denial or final offer applies equally to such claim, the letter of notification must advise the claimant that any suit brought as to any portion of the claim filed under the FTCA must be brought not later than 6 months from the date of mailing of the notice of denial or final offer. Further, the claimant must be advised that if suit is brought, action on any appeal under this subpart will be held in abeyance pending final determination of such suit. Sec. 536.64 Action on appeal. (a) The appeal will be examined by the settlement authority who last acted on the claim or his or her successor, to determine if the appeal complies with the requirements of this regulation. The settlement authority will also examine the claims investigative file and decide whether additional investigation is required; ensure that all allegations or evidence presented by the claimant, agent, or attorney are documented in the file; and ensure that all pertinent evidence is included in the file. If the claimant states that he or she appeals, but does not submit supporting materials within the 180 day appeal period, the appeal will be treated as being on the record as it existed at the time of denial or final offer. Unless action under paragraph (b) of this section is taken, the claim and complete investigative file, including any additional investigation required, and a tort claims memorandum will be forwarded to the appropriate appellate authority for necessary action on the appeal. (b) If the evidence in the file, including information submitted by the claimant with the appeal and any necessary additional investigation, indicates the appeal should be granted, in whole or in part, the settlement authority who last acted on the claim or his or her successor will attempt to settle the claim. If a settlement cannot be reached, the appeal will be forwarded in accordance with paragraph (a) of this section. (c) As to an appeal that requires action by TJAG, TAJAG, or the Secretary of the Army or designee, the Commander, USARCS may take the action in paragraph (b) of this section or forward the claim together with a recommendation for action. All matters submitted by the claimant will be forwarded and considered. (d) Since an appeal under this chapter is not an adversary proceeding, no form of hearing is authorized. A request by the claimant for access to documentary evidence in the claims file to be used in considering the appeal should be granted unless access is not permitted by law or regulation. (e) If the appeal authority upholds a final offer or authorizes an award on appeal from a denial of a claim, the notice of the appellate authority's action will inform the claimant that they must accept the award within 180 days of the date of mailing of the notice of the appellate authority's action or the award will be withdrawn, the claim will be deemed denied and the file will be closed without further recourse. Sec. 536.65 Cross-servicing of claims. (a) Single-service claims responsibility. Per DODD 5515.8, the DOD has assigned single-service responsibility to the various military departments for the settlement of claims in specified countries. (b) Claims settlement procedures. Per DODD 5515.3, the DOD has directed that where a single Service has been assigned a country or area claims responsibility, that Service will settle claims cognizable under 10 U.S.C. 2733 in accordance with the departmental regulations of that Service. Sec. 536.66 Attorney fees. In the settlement of any claim pursuant to 10 U.S.C. 2733 and this chapter, attorney fees will not exceed 20 percent of the final cost to the United States of the award. On structured settlements, the cash payment due immediately upon final approved must be sufficient to allow payment of attorneys fees equal to 20% of the total cost of the settlement. Sec. 536.67 Payment of costs, settlements, and judgments related to certain medical malpractice claims. (a) General. Costs, settlements, or judgments cognizable under 10 U.S.C. 1089(f) for personal injury or death caused by any physician, dentist, nurse, pharmacist, paramedical, or other supporting personnel (including medical and dental technicians, nurse assistants, therapists, and Red Cross volunteers meeting the criteria in AR 40-3, paragraph 2-42) of DA will be paid provided-- (1) The alleged negligent or wrongful actions or omissions arose in performance of medical, dental or related health care functions (including clinical studies and investigations) within the scope of employment; (2) Such personnel furnish prompt notification and delivery of all process served or received and other documents, information, and assistance as requested; and cooperate in the defense of the action on its merits. (b) Requests for indemnification. All requests for indemnification under this paragraph should be forwarded to the Commander, USARCS, for action using procedures contained in this chapter. (See DODD 6000.6.) Sec. 536.68 Payment of costs, settlements, and judgments related to certain legal malpractice claims. (a) General. Costs, settlements, and judgments cognizable under 10 U.S.C. 1054(f) for damages for injury of loss of property caused by any attorney, paralegal, or other member of a legal staff within DA will be paid provided that-- (1) The alleged negligent or wrongful actions or omissions arose in connection with providing legal services while acting within the scope of duties or employment, (2) Such personnel furnish prompt notification and delivery of all process served or received, and other documents, information, and assistance as requested; and cooperate in the defense of the action on the merits. (b) Requests for indemnification. All requests for indemnification under this paragraph should be forwarded to the Commander, USARCS, for action utilizing the procedures contained in this subpart. Subpart D--Claims Cognizable Under the Federal Tort Claims Act Sec. 536.69 Authority. The statutory authority for this subpart is the FTCA (60 Stat. 842), (28 U.S.C. 2671-2680), as amended by the Act of 18 July 1966 (Public Law 89-506; 80 Stat. 306), Public Law 93-253, 16 March 1974 (88 Stat. 50), and Public Law 97-124, 29 December 1981, and as implemented by the Attorney General's Regulations (28 CFR 14.1-14.11). Sec. 536.70 Scope. (a) This subpart prescribes the substantive bases and special procedural requirements for the administrative settlement of claims against the United States under the FTCA and the implementing Attorney General's Regulations (DA Pam 27-162, appendix H) based on death, personal injury, or damage to or loss of property that accrues on or after 18 January 1967. If a conflict exists between this regulation and the Attorney General's Regulations, the latter governs. (b) Citations to cases interpreting and applying the FTCA are contained in the Federal Tort Claims Handbook provided by USARCS. That handbook should be used in conjunction with this subpart. Sec. 536.71 Claims payable. (a) Unless otherwise prescribed, claims for death, personal injury, or damage to or loss of property (real or personal) are payable under this subpart the injury or damage is caused by negligent or wrongful acts or omissions of military personnel or civilian employees of the DA or DOD while acting within the scope of their employment under circumstances in which the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. The FTCA is a limited consent to liability without which the United States is immune. Similarly, there is no Federal cause of action created by the Constitution that would permit a damage recovery because of the Fifth Amendment or any other constitutional provision. Immunity must be expressly waived, as by the FTCA. (b) An employee of the Government (28 U.S.C. 2671) includes the following categories of tortfeasors for which the Army is responsible: (1) Military personnel (members of the Army), including but not limited to-- (i) Members on full-time active duty in a pay status, including members-- (A) Assigned to units performing active service. (B) Serving as ROTC instructors. (Excludes Junior ROTC instructor unless on active duty.) (C) Serving as NG instructors or advisors. (D) On duty or training with other Federal agencies, for example, National Aeronautics and Space Administration, DOD, State, Navy, or Air Force. (E) Assigned as students or ordered into training at a non-Federal civilian educational institution, hospital, factory, or other industry. (This does not include members on excess leave.) (F) On full-time duty at nonappropriated fund activities. (G) Of the USAR and ARNG on active duty under Title 10. (ii) Members of Reserve Units (other than members of the ARNG under subpart F) during periods of inactive duty training and active duty training, including ROTC cadets who are reservists while they are at summer camp. (iii) Members of the ARNG while engaged in training or duty under Title 32 U.S.C. sections 316, 502, 503, 504, or 505 for claims arising on or after 29 December 1981. (2) Civilian officials and employees of both the DOD and DA (there is no practical significance to the distinction between the terms ``official'' and ``employee'') including but not limited to-- (i) Civil Service and other full-time employees of both the DOD and DA paid from appropriated funds. (ii) Contract surgeons (10 U.S.C. 1091 4022; AR 40-1, paragraph 4- 2) and consultants (10 U.S.C. 1091; AR 40-1, paragraph 4-3; CPR A-9; FPM chapter 304) where ``control'' is exercised over physician's day to day practice. (iii) Employees of nonappropriated funds if the particular fund is an instrumentality of the United States and thus a Federal agency. In determining whether or not a particular fund is a ``Federal agency,'' consider whether the fund is an integral part of the Army charged with an essential DA operational function and the degree of control and supervision exercised by DA personnel. Members or users, as distinguished from employees of nonappropriated funds, are not considered Government employees; the same is true of family child care providers. However, claims arising out of the use of certain nonappropriated fund property, or the acts or omissions of family child care providers, may be payable from such funds under subpart L as a matter of policy, even when the user is not within the scope of employment and the claim is not otherwise cognizable under any of the other authorizations in this regulation. (iv) Prisoners of war and interned enemy aliens. (v) Civilian employees of the District of Columbia National Guard, including those paid under ``service contracts'' from District of Columbia funds. (vi) Civilians serving as ROTC instructors paid from Federal funds. (viii) National Guard technicians employed under 32 U.S.C. 709(a) for claims accruing on or after 1 January 1969 (Public Law 90-486, 13 Aug. 1968; 82 Stat. 755). (3) Persons acting in an official capacity for the DOD or DA whether temporarily or permanently in the service of the United States with or without compensation including but not limited to-- (i) ``Dollar a year'' personnel. (ii) Members of advisory committees, commissions, boards, or the like. (iii) Volunteer workers in an official capacity acting in furtherance of the business of the United States. The general rule with respect to volunteers is set forth in 31 U.S.C. 665(b), which provides that, ``No officer or employee of the United States shall accept voluntary service for the United States or employ personal service in excess of that authorized by law, except in cases of emergency involving the safety of human life or the protection of property.'' Title 5, United States Code, section 3111(c) specifically provides that student volunteers employed thereunder will be considered Federal employees for purposes of the FTCA. The same classification is applied by 10 U.S.C. 1588 to museum and family support program volunteers. The Army is permitted to accept and use certain volunteer services in Army family support programs as authorized by Public Law 98-94, September 24, 1983. Red Cross volunteers meeting the criteria set forth in AR 40- 3, paragraph 2-42, are also considered to be employees of the United States for claims purposes. (iv) Loaned servants. Employees who are permitted to serve another employer may be considered ``loaned servants,'' provided the borrowing employer has the power to discharge the employee, control and direct the employee, and decide how he or she will perform the tasks. Whoever has retained those powers is liable for the employee's torts under the principle of respondent superior. Where those elements of direction and control have been found, the United States has been liable; for example, for the torts of Government employees loaned for medical training and emergency assistance and county and state employees discharging Federal programs. (c) Scope of employment means acting in ``line of [military] duty'' (28 U.S.C. 2671) and is determined in accordance with principles of respondent superior under the law of the jurisdiction in which that act or omission occurred. Determination as to whether a person is within a category listed in (b)(3) of this section will usually be made together with the scope determination. Local law should always be researched, but the novel aspects of the military relationship should be kept in mind in making a scope determination. (d) ``Line of duty'' determinations under AR 600-8-1 are not determinative of scope of employment. ``Joint venture'' situations are likely to be frequent where the Federal employee is performing federally assigned duties but is under actual direction and control of a non-Federal entity; for example, a Federal employee in training at a non-Federal entity or ROTC instructors at civilian institutions. This could also occur where the employee is working for another Federal agency. Furthermore, dual purpose situations are commonplace where benefits to the Government and the member or employee may or may not be concurrent; for example, use of privately owned vehicles at or away from assigned duty station, or permanent change of station with delay en route. (See subpart E for the handling of certain claims arising out of nonscope activities of members of the Army.) Sec. 536.72 Law applicable. The whole law of the place where the act or omission occurred, including choice of law rules, will be applied in the determining liability and quantum. Where there is a conflict between the local law and an express provision of the FTCA, the latter governs. Sec. 536.73 Subrogation. Claims involving subrogation will be processed as prescribed in Sec. 536.20(b) except where that section is inconsistent with the provisions of this chapter or the Attorney General's regulations. Sec. 536.74 Indemnity or contribution. (a) Sought by the United States. It is the policy of the Department of Justice that, if the claim arises under circumstances in which the Government is entitled to contribution or indemnity under a contract of insurance or the applicable law governing joint tortfeasors, the third party will be notified of the claim and will be requested to honor its obligation to the United States or to accept its share of joint liability. (See Secs. 536.28 and 536.29.) If the issue of indemnity or contribution is not satisfactorily adjusted, the claim will be compromised or settled only after consultation with the Department of Justice as provided in Sec. 536.75(s). (b) Claims for indemnity or contribution. Claims for indemnity or contribution from the United States will be compromised or settled under this chapter, if liability exists under the applicable law, provided the incident giving rise to such claim is otherwise cognizable under this chapter. As to such claims where the exclusivity provisions of the FECA may be applicable, see Sec. 536.75(s). (c) ARNG vehicular claims. (1) When a vehicle used by the ARNG, or a POV operated by a member or employee of the ARNG, is involved in an incident under circumstances that make this chapter applicable to the disposition of administrative claims against the United States and results in personal injury, death, or property damage, and a remedy against the State, or its insurer is indicated, the responsible area claims authority will monitor the action against the State or its insurer and encourage direct settlement between the claimant and the State or its insurer. (2) Where the State is insured, direct contact with State or ARNG officials rather than the insurer is desirable. Regular procedures will be established and followed wherever possible. Such procedures should be agreed on by both local authorities and the appropriate claims authorities subject to concurrence by Commander, USARCS. Such procedures will be designed to ensure that local authorities and U.S. authorities do not issue conflicting instructions for processing claims and, whenever possible and in accordance with governing local and Federal law, a mutual arrangement for disposition of such claims as in paragraph (d) of this section is worked out. (3) Amounts recovered or recoverable by claimant from any insurer (other than claimant's insurer who has obtained no subrogated interest against the United States) will be deducted from the amount otherwise payable. (d) Claims arising out of training activities of NG personnel. Contribution may be sought from the State involved where it has waived sovereign immunity or has private insurance that would cover the incident giving rise to the particular claim. Where the State involved rejects the request for contribution, the file will be forwarded to the Commander, USARCS. The Commander, USARCS, is authorized to enter into an agreement with a State, territory, or commonwealth to share settlement costs of claims generated by the ARNG personnel or activities of that political entity. Sec. 536.75 Claims not payable. Exclusions listed in paragraphs (a) through (l) of this section are based upon the wording of 28 U.S.C. 2680. The remainder are based either on statute or court decisions. The interpretation of these exclusions is a Federal question to be decided under Federal law; for example, the tort of assault and battery listed in 28 U.S.C. 2680(h) should be interpreted in accordance with Federal common law principles, and where State law differs, the former will prevail. Where a claim is considered not payable under this paragraph, consult DA Pam 27-162, chapter 8 for other methods of handling. A claim is not payable under this chapter if it-- (a) Is based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation is valid (28 U.S.C. 2680(a)). Where no negligence on the part of any Government employee is shown, and the only ground for the claim is the contention that the same conduct by a private individual would be tortious, or that the statute or regulation authorizing the project was invalid, the sole question is the existence of the statute or regulation, not its validity. However, a claim should not be denied based solely on this exception without the prior approval of the Commander, USARCS. (b) Is based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the Government, whether or not the discretion involved is abused (28 U.S.C. 2680(a)). A claim should not be denied solely because of this exception without the prior approval of the Commander, USARCS. (c) Arises out of the loss, miscarriage, or negligent transmission of letters or postal matter (28 U.S.C. 2680(b)). It should be noted that administrative settlement and payment of certain mail claims is authorized under subparts C and F. Further, a limited indemnity may be obtained through other channels for the loss or damage to registered, insured, and C.O.D. mail (39 U.S.C. 5001, et. seq.) (See DA Pam 27-162, paragraph 8-61.) The exclusion may not be applicable where State law recognizes a cause of action for invasion of privacy. (d) Arises with respect to the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by any customs or other law-enforcement officer (28 U.S.C. 2680(c)). Adequate remedies are available to anyone aggrieved by the application of the tax or customs laws of the United States (26 U.S.C. 6213), or the claimant may pay the tax and sue in the U.S. Claims Court or the appropriate U.S. District Court for a refund (28 U.S.C. 1491 and 1346(a)(1)). Other remedies are also available for the loss or detention of goods or merchandise; for example, Tucker Act, bailment provisions of the MCA (chap 3), or destruction of evidence for scientific analysis (AR 190-22, paragraph 3-8). With respect to the detention of goods by a law enforcement officer, this exception may apply to seizures in connection with an arrest. (e) Is cognizable under the Suits in Admiralty Act (46 U.S.C. 740- 752) or under the Public Vessels Act (46 U.S.C. 781-790). To be cognizable under this exclusion, the tort must have both a maritime situs and a maritime nexus, otherwise the tort is cognizable under the FTCA. Maritime claims may be considered under The Army Maritime Claims Settlement Act (10 U.S.C. 4801, et. seq.) and subpart H, and they must be settled or suit filed within 2 years of accrual of claim. (f) Arises out of an act or omission of any employee of the Government in administering the provisions of the Trading With the Enemy Act (50 U.S.C. appendix 1-31; 28 U.S.C. 2680(e)). That Act provides that the sole remedy of any person claiming money or other property held by the Alien Property Custodian is as provided by that Act. This exception should be broadly construed. (g) Is for damages caused by the imposition or establishment of a quarantine by the United States (28 U.S.C. 2680(f)). Claims for failure to impose a quarantine or delay in enforcing a quarantine come within the discretionary function exclusion discussed in paragraph (b) of this section. (h) Arises out of an assault or battery (28 U.S.C. 2680(h)). (1) Often artful pleading is employed to create a cause of action in negligence, such as alleging negligent supervision; such does not create a separate cause of action as the exception bars a claim arising out of an assault and battery even though there may have been negligent supervision. Under the 1974 amendment to 28 U.S.C. 2680(h), the activities of law enforcement officers that result in an assault or battery are removed from this exception and can create a cause of action. Such activities have accounted for most of the past claims and litigation involving the assault and battery exception. (2) Therefore, any claim alleging use of threatening or deadly force, especially by a law enforcement officer, must be thoroughly investigated to determine whether the nature, amount, and use of such force was justified under the circumstances. (See paragraph (i) of this section for definition of investigative or law enforcement officer). Also, section 2680(h) does not apply to a claim arising out of performance of medical, dental or related health care functions (10 U.S.C. 1089(e)). (i) Arises out of false imprisonment, false arrest, malicious prosecution or abuse of process (28 U.S.C. 2680(h)). This exception has universal applicability to all acts of false imprisonment, false arrest, malicious prosecution, or abuse of process when committed by an employee of the United States in the scope of employment. However, by amendment to 28 U.S.C. 2680(h), this exception is not applicable on or after 16 March 1974 to such actions when committed by an investigative or law enforcement officer of the United States who is empowered by law to execute searches, seize evidence, or make arrests for violations of Federal law (88 Stat. 50). Such employees are considered to include military police, but not post exchange detectives. Whether or not a Federal law enforcement officer is involved, the defense of probable cause, reasonableness, and good faith are available, provided the arrest is otherwise lawful under State law. DA Pam 27-162, paragraph 8- 8c, refers to certain claims based on unjust convictions. (j) Arises out of libel, slander, misrepresentation, or deceit (28 U.S.C. 2680(h)). The misrepresentation exception has been broadly construed to include negligent as well as intentional misrepresentation. It has not been applied in situations involving negligent failure to perform some operational task or to convey information related to public safety independent of any secondary misstatement. Where an erroneous medical diagnosis is made, the exception does not apply because malpractice is the gravamen of the action and the misrepresentation incidental. Similarly, the misrepresentation exception was held not applicable where the United States sold bomb casings to a scrap dealer expressly warranting that they were safe and fit for scrap metal processing, and one of the castings exploded. Before this exception can be applied in the determination of an administrative tort claim, the claims investigation must consider the nature of the Government's acts or omissions, as well as the information upon which the claimant may have relied to his or her detriment. (k) Arises out of interference with contract rights (28 U.S.C. 2680(h)). This exception includes both interference with existing contract rights and interference with prospective or executed contract rights or economic advantage. (l) Arises from the fiscal operations of the Department of the Treasury or from the regulation of the monetary system (28 U.S.C. 2680(i)). This exception includes all disbursing operations of the DA or other military services. However, such claims may be forwarded through Army finance channels for consideration. (m) Arises out of the combat activities of the military or naval forces, or the Coast Guard, during time of war (28 U.S.C. 2680(j)). ``Combat activities'' is defined in the glossary. (n) Arises in a foreign country (28 U.S.C. 2680(k)). There is no clear delineation of what constitutes a foreign country. However, the exception has been held applicable to claims arising in a leased military base in Newfoundland; in the American Embassy in Bangkok, Thailand; on Okinawa under the de facto sovereignty of the United States; on Kwajalein under the trusteeship of the United States; and to various occupied countries. (See subpart J and DA Pam 27-162, paragraph 821, for handling of certain claims arising in a foreign country.) Where the actionable negligence has occurred in the United States and only the consequences occurred in a foreign country, this exception has not been applied. (o) Arises from the activities of the Tennessee Valley Authority (28 U.S.C. 2680(i) and 16 U.S.C. 831 et. seq.). (p) Arises from the activities of the Panama Canal Commission (28 U.S.C. 2680(m)). (See 76A Stat. 22 through 25, and 22 U.S.C. 3761.) Claims accruing after the effective date of the Panama Canal Treaty (1 October 1979) may be cognizable under either the FCA or the MCA. (q) Arises from the activities of a Federal land bank, a Federal intermediate credit bank, or bank for cooperatives (28 U.S.C. 2680(n)). (r) Is for the personal injury or death of a member of the Armed Forces of the United States incurred incident to service, or for damage to a member's property incurred incident to service (Feres v. United States, 340 U.S. 135 (1950)). (See Sec. 536.25 and DA Pam 27-162, paragraphs 8-26 through 8-28.) Currently the most significant justification for the incident to service doctrine is the availability of alternative compensation systems, and the fear of disrupting the military command relationship. Other supportive factors often cited by the courts are the service member's duty status, location, and receipt of military benefits at the time of the incident. (1) The exception applies to members of the Army, Navy, Air Force, Marine Corps, and Coast Guard, including the Reserve Components of the Armed Forces. (See 10 U.S.C. 261.) The exception also applies to service members on the Temporary Disability Retired List, on convalescent leave, and on the extended enlistment program; to service academy cadets; and to members of visiting forces in the United States under the SOFA between the parties to the North Atlantic Treaty or similar international agreements. (2) The incident to service doctrine has been extended to derivative claims where the directly injured party is a service member. Third party indemnity claims are barred. (s) Is for the personal injury or death of a Government employee for whom benefits are provided by the FECA (5 U.S.C. 8101- 8150). (See DA Pam 27-162, paragraph 8-25.) Who is a Government employee under the Act is defined in the Act itself (5 U.S.C. 8101), but the term is not limited to Federal Civil Service employees. The term ``Government employee'' can include certain ROTC cadets (5 U.S.C. 8140) and State or local law enforcement officers engaged in apprehending a person for committing a crime against the United States (5 U.S.C. 8191), certain nurses, interns, or other health care personnel, for example, student nurses, (5 U.S.C. 5351, 8144), and certain Army Community Service Volunteers (10 U.S.C. 1588; AR 608-1). (1) This Act provides that benefits paid under this Act are exclusive and instead of all other liability of the United States, including that under a Federal tort liability statute (5 U.S.C. 8116(c)). It extends to derivative claims, subsequent malpractice for treatment of a covered injury, injuries for which there is no scheduled compensation, and employee harassment claims for which other remedies are available (42 U.S.C. 2000e). (2) Is from a federal civilian employee based on a allegation of a violation of some employment right or is otherwise one for which the rules governing federal civilian employment provide a comprehensive remedy. Such claims often allege emotional distress or psychological injury as a result of the alleged misconduct. Administrative remedies under the civil service regulations are the employee's exclusive remedy. Bush v. Lucas 462 U.S. 367 (1983). This exception does not bar third party indemnity claims. When there is doubt as to whether or not this exception applies, the claim should be forwarded through claims channels to the Commander, USARCS, for an opinion. (t) Is for the personal injury or death of an employee including nonappropriated fund employees, for whom benefits are provided by the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 901- 950). An employee of a nonappropriated fund instrumentality is covered by the Act (5 U.S.C. 8171). This is exclusive for covered employees, similar to that under the FECA. (u) Is for the personal injury or death of any employee for whom benefits are provided under any workmen's compensation law if the premiums of the workmen's compensation insurance are retrospectively rated and charged as an allowable, allocable expense to a cost-type contract. (See Sec. 536.28 and DA Pam 27-162, paragraph 8-25.) If, in the opinion of an approval or settlement authority the claim should be considered payable (for example, the injuries did not result from a normal risk of employment or adequate compensation is not payable under workmen's compensation laws), the file will be forwarded with recommendations through claims channels to the Commander, USARCS who may authorize payment of an appropriate award. (v) Is for taking of property as by technical trespass or overflight of aircraft and of a type contemplated by the Fifth Amendment to the U.S. Constitution, or otherwise constitutes attacking. (See paragraph 2c of AR 405-15 and DA Pam 27-162, paragraphs 8-46, 8- 74, and 8-75.) (1) The Fifth Amendment to the U.S. Constitution provides in part ``* * * nor shall private property be taken for public use, without just compensation.'' (2) Claims for takings without just compensation are actionable under the Tucker Act (28 U.S.C. 1346(a)(2) and 1491, Appendix A., 24 Stat. 505 (1887)). Prior to referring a claimant to a Tucker Act remedy, the applicability of the procedures under AR 405-15 should be considered by referral to appropriate Corps of Engineers authorities. (See DA Pam 27-162, paragraph 8-75.) (w) Is for damage from or by flood or flood waters at any place (33 U.S.C. 702c). This exception is broadly construed and includes multipurpose projects and all phases of construction and operation. (x) Is for damage to property or for any death or personal injury occurring directly or indirectly as a result of the exercise of performance of, or failure to exercise or perform, any function or duty by any Federal agency or employee of the Government to carry out the provisions of the Federal Civil Defense Act of 1950 during the existence of a civil defense emergency (50 U.S.C. Appendix 2291-2297). (y) Is based solely upon a theory of absolute liability or liability without fault. Either a negligent or wrongful act is required by the FTCA, and some type of malfeasance or nonfeasance is required (Dalehite v. United States, 346 U.S. 15 (1953); Laird v. Nelms, 406 U.S. 797 (1972)). Thus, liability does not arise by virtue either of United States ownership of an inherently dangerous commodity or of engaging in extra-hazardous activity. (z) Is for patent or copyright infringement. (See AR 27-60.) (aa) Claims for damage to property of a State, commonwealth, territory, or the District of Columbia caused by ARNG personnel engaged in training or duty under 32 U.S.C. 316, 502, 503, 504, or 505 who are assigned to a unit maintained by that State, commonwealth, territory, or the District of Columbia will not be paid without the express approval of the Commander, USARCS. (bb) Is for damage to property or for any death or personal injury arising out of the activities of any Federal agency or employee of the Government in carrying out the provisions of the Federal Disaster Relief Act of 1954 (Public Law 93-288, Sec. 403, 88 Stat. 143). The Act requires the local beneficiary (State or local government) to hold the Government harmless and to assume the defense of all claims arising from the removal of debris and wreckage from public or private property. (cc) Arises from activities that present a nonjusticiable political question. The courts search for six factors, as follows, any one of which is grounds for dismissal: (1) A commitment of the issue to a coordinate branch of Government by the text of the Constitution. (2) A lack of judicially discoverable and manageable standards for resolving it. (3) The impossibility of deciding without a policy determination calling for non-judicial discretion. (4) The impossibility of undertaking independent resolution without expressing lack of respect for coordinate branches of Government. (5) An unusual need for unquestioning adherence to a political decision already made. (6) The potential for embarrassment from multiple pronouncements by various departments on one question. Sec. 536.76 Claims under other laws and regulations. Any claim that may be settled under any exclusive or specific authorization discussed in DA Pam 27-162, chapter 8, will be settled under such authority in preference to settlement under this chapter. Guidance concerning application of this policy will be obtained from USARCS. Sec. 536.77 Procedures. (a) General. Unless inconsistent with the provisions of this chapter, the procedures for the investigation and processing of claims set forth in subpart B will be followed. (b) Claims arising out of tortious conduct by ARNG personnel defined in Sec. 536.71(b)(1)(iii). (1) Notification and investigation. The procedures in Secs. 536.97 and 536.98 will be followed in NG claims arising under the FTCA. (2) Claims against the U.S. Government received by agencies of the State. These claims will be expeditiously forwarded through the State adjutant general to the appropriate U.S. Army area claims office in whose geographic area the incident occurred. (c) Statute of limitations. (1) To be settled under this chapter, a claim against the United States must be presented in writing to the appropriate Federal agency within 2 years of its accrual. (2) For statute of limitations purposes, a claim will be deemed to have been presented when the appropriate Federal agency (as defined in the glossary) receives from a claimant or his or her duly authorized agent or legal representative, an executed SF 95 or written notification of an incident, together with a claim for money damages, in a sum certain, for damage to or loss of property or personal injury or death. For Federal tort claims arising out of activities of the NG, receipt of a written claim by any full time officer or employee of the NG will be considered proper receipt. (3) A claim received by an official of the DOD will be transmitted without delay to the nearest Army claims processing office or area claims office. Inquiries concerning applicability of the statute of limitations to claims filed with the wrong Federal Agency will be referred to USARCS for resolution. (d) Claims within settlement authority of USARCS or the Attorney General. (1) A copy of each of the type of claims described below will be forwarded immediately to the Commander, USARCS. (Subsequent documents should be forwarded or added in accordance with Sec. 536.22(b)(2)). (i) Claims that appear to be of a type that must be brought to the attention of the Attorney General in accordance with his or her regulations (28 CFR 14.6). (ii) A claim in which the demand exceeds $25,000 or the total amount of all claims, actual or potential, from a single incident exceeds $25,000 $50,000. (2) USARCS is responsible for the monitoring and settlement of such claims and will be kept informed of the status of the investigation and processing thereof. Direct liaison and correspondence between USARCS and the field claims authority or investigator is authorized on all claims matters and assistance will be furnished as required. (e) Non-Army claims. Claims based on acts or omissions of employees of the United States, other than military and civilian personnel of the DA, civilian personnel of the DOD, and employees of nonappropriated fund activities of the DA will be transmitted forthwith to the nearest official of the employing agency; the claimant will be advised of the referral. (See Sec. 536.18 (c) and (d) for further guidance when more than one Federal agency is involved.) (f) Acknowledgment of claim. (1) The claimant and his or her attorney will be kept informed by personal contact, telephonic contact, or mail of the receipt of his or her claim and the status of the claim. Formal acknowledgment of the claim in writing is required only where the claim is likely to result in litigation or is presented in an amount exceeding $15,000. In this event, the letter of acknowledgment will state the date of receipt of the claim by the first agency of the Army receiving the claim. (2) If it is reasonably clear to the office acknowledging receipt that a claim filed under the FTCA is not cognizable thereunder; for example, it is a maritime claim under chapter 8, or it falls under subparts C or F, the acknowledgment will contain a statement advising the claimant of the statute under which his or her claim will be processed. If it is not clear which subpart applies, a statement to that effect will be made and the claimant will be promptly advised when a decision is made. However all potential maritime claims will be handled in accordance with Sec. 536.21(b)(5). (3) When a claim has been amended as set forth in Sec. 536.20(f)(4), the amendment will be acknowledged in all cases. Also, the claimant will be informed that the amendment constitutes a new claim insofar as concerns the 6 months in which the DA is granted the authority to make a final disposition under 28 U.S.C. 2675(a) and the claimant's option thereunder will not accrue until 6 months after the filing of the amendment. (4) When a claim is improperly presented, is incomplete, or otherwise does not meet the requirements set forth in Sec. 536.20(d), the claimant or his or her representative will be promptly informed in writing of the deficiencies and advised that a proper claim must be filed within the 2 year statute of limitations. (g) Investigation. Claims cognizable under this regulation will be investigated and processed on a priority basis in order that settlement if indicated may be accomplished within the 6 months prescribed by statute. (h) Advice to claimant. (1) A full explanation of claims procedures and of the rights of the claimant will be made to the extent necessitated by the amount and nature of the claim. (2) In a case where litigation is likely, or where this course of action is preferred by the claimant, and it appears to be a proper case for administrative settlement, the claimant will be advised as to the advantages of administrative settlement. If the claim is within the jurisdiction of a higher settlement authority, the claim will be discussed with such authority prior to the furnishing of such advice. The claimant should be familiarized with all aspects of administrative settlement procedures including the administrative channels through which the claim must be processed for approval. He or she may be advised that administrative processing can result in more expeditious processing, whereas litigation may take considerable time, particularly in jurisdictions with crowded dockets. (3) If appropriate, the claimant may be informed that a tentative settlement can be reached for any amount, but that awards in excess of $200,000 are subject to approval by the Attorney General. The claimant should be advised that administrative filing of the claim protects him or her under the statute of limitations for purpose of litigation and that a suit can be filed within 6 months after the date of mailing of notice of final denial by the DA, thus potentially allowing negotiations to continue indefinitely. An attorney representing a claimant should be advised of the limitations on fees for purposes of administrative settlement (20 percent) and litigation (25 percent) and that there is no jury trial under the FTCA. (i) Notification to claimant of action on claim. (1) The filing of an administrative claim and its denial are prerequisite to filing suit. Any suit must be filed not later than 6 months after notification by certified or registered mail of the denial of the administrative claim. Failure of a settlement authority to take final action on a properly filed claim within 6 months may be treated by the claimant as a final denial for the purposes of filing suit. If the claimant has provided insufficient documentation to permit evaluation of the claim, written notice should be given to this effect. Since administrative settlements are a voluntary process, the preferred method of negotiating is to attempt to exchange information on an open basis. (2) Upon final denial of a claim, or upon rejection by claimant of a partial allowance, if further efforts to reach a settlement are not considered feasible (Sec. 536.21(b)(1)), the settlement authority will inform the claimant of the action on his or her claim by certified or registered mail. Notification will be made as set forth in Sec. 536.37(b). A copy of this notification will be furnished to Litigation Division, OTJAG, and the Commander, USARCS. In all medical malpractice cases, a copy will be furnished to the Consultation Case Review Branch (CCRB), Office of the Surgeon Command and the SJA, Health Services Command. (3) If a claim has been presented to the DA and, also, to other Federal agencies, without any notification to the DA of this fact, final action taken by the DA prior to that of any other agency is conclusive on a claim presented to other agencies unless another agency decides to take further action to settle the claim. Such agency may treat the matter as a reconsideration under 28 CFR 14.9(b) unless suit has been filed. (See Sec. 536.82.) The foregoing applies likewise to Army claims in which another Federal Agency has taken final action. (4) If, after final denial by another agency, a claim is filed with the Army, the new submission will not toll the 6 months limitation for filing suit unless the DA treats the second submission as a request for reconsideration under Sec. 536.82. (5) In those cases where claimants exercise their option under 28 U.S.C. 2675(a) and file suit after six months but before final agency action, a formal denial notice will be sent to the claimant promptly upon notification of the suit unless the Assistant United States Attorney responsible for litigation of the suit expressly requests that such action not be taken. Sec. 536.78 Payment of claims. (a) Awards of $2,500 or less. Awards of $2,500 or less are paid from the claims appropriation. For procedures, see sections 536.32 through 536.35. An explanation of various claims appropriations to be used is in section 536.34. (b) Awards in excess of $2,500. Payment of awards in excess of $2,500 will be accomplished by forwarding the documents listed in Sec. 536.35(b) to the Claims Division, GAO, 441 G Street, NW., Washington, DC 20548. When an award is in excess of $25,000, evidence that the award has been approved by the Attorney General or designee is also required. (For procedures, see Secs. 536.32 through 536.35.) (c) Attorney as payee. If a claimant is represented by an attorney, both the claimant and the attorney will be designated as ``payees'' on the voucher (SF 1145) and the check will be delivered to the attorney whose address appears on the voucher. (d) Broker as payee. If the settlement requires the purchase of an annuity and establishment of a reversionary trust, the broker may be named as payee and required to dispose of the amount paid as set forth in the settlement agreement. (e) Attorneys fees. Attorneys' fees are limited by 28 U.S.C. 2678 to not more than 20 percent of any award, compromise, or settlement. Sec. 536.79 Acceptance of award. The acceptance by the claimant of an award, compromise, or settlement made pursuant to this chapter will be final and conclusive for all purposes and will constitute a complete release of any claim against the United States and against the military or civilian personnel of the DA, or civilian employees of the DOD whose act or omission gave rise to the claim by reasons of the same subject matter. (See Sec. 536.32 on preparing a settlement agreement.) Sec. 536.80 Delegation of authority. (a) Settlement authority. (1) Subject to the approval of the Attorney General for payments in excess of $200,000 in a single claim or where the total value of all claims and potential claims arising out of a single incident exceeds $200,000 or as otherwise required (see Sec. 536.81), the following are delegated authority to settle (i.e. pay in full, pay in part or deny) and make final offers on claims under this chapter: (i) TJAG. (ii) TAJAG. (iii) The Commander, USARCS or designees. (2) Unless the Commander, USARCS alters the delegation, heads of area claims offices or their designated claims Judge Advocates/claims attorneys are delegated authority to approve and pay in full or in part, to disapprove, and to make final offers on claims presented for $25,000 or less. These offices are also authorized to approve and pay, regardless of the amount claimed, an agreed award of $25,000 or less, provided that the total value of all claims and potential claims arising out of a single incident does not exceed $50,000. (3) Notice of disapproval or final offer issued by an authority listed in paragraphs (a)(1) and (a)(2) of this section will be in accordance with Secs. 536.5(f) and 536.37 and must be accompanied by an explanation that the claimant may submit a written request for reconsideration (Sec. 536.82), in lieu of filing suit, to the Commander, USARCS (through the office issuing the disapproval or final offer) provided that the request is received prior to the expiration of the 6-month period provided in 28 U.S.C. 2401(b). Once received, the claimant will be advised in writing that the request will suspend the option to bring suit under 28 U.S.C. 2675(a) for 6 months from the date the request was received. (4) Heads of claims processing offices with approval authority are delegated authority to approve and pay, in full or in part, claims presented for $5,000 or less and to compromise and pay, regardless of the amount claimed, an agreed award of $5,000 or less, provided that the total value of all claims and potential claims arising out of a single incident does not exceed $25,000 and that the claimant agrees to accept the award in full satisfaction of the claim. (b) Office code. Authority delegated by this paragraph will not be exercised unless the claims settlement or approval authority has been assigned an office code. Sec. 536.81 Consultation with the Department of Justice. (a) Consultation with the Department of Justice is required when, in the opinion of the Federal agency-- (1) A new precedent or a new point of law is involved; (2) A question of policy is or may be involved; (3) The United States is or may be entitled to indemnity or contribution from a third party, and the agency is unable to adjust the third party claim; (4) The total amount to be paid in all claims or potential claims arising out of the same transaction will or may exceed $200,000; (5) For any reason, the compromise of a particular claim, as a practical matter, will control the disposition of actual or potential claims arising out of a single incident in which the amount to be paid may exceed $25,000 $200,000; or (6) Where the United States, an employee, agent, or cost-plus contractor is involved in litigation based on a claim arising out of the same transaction. (b) Claims requiring consultation with, or approval by the Department of Justice will be forwarded to the Commander, USARCS. The Commander will refer such claims to the Assistant Attorney General, Civil Division, Department of Justice in accordance with Section 14.7, Attorney General Regulations. (See DA Pam 27-162, appendix H.) Sec. 536.82 Reconsideration. (a) Original approval or settlement authority. (1) Reconsideration. An original approval or settlement authority may reconsider the denial of or final offer on a claim under the FTCA upon request of the claimant, the claimant's authorized agent, or the claimant's legal representative. (2) Settlement correction. An original approval or settlement authority may reopen and correct his or her action on a claim that was previously settled in whole or in part (even where a settlement agreement has been executed) when an error contrary to the mutual understanding of the parties is discovered in the original action (e.g., a claim is settled for $15,000 but the settlement agreement was typed to read $1500 and the error is not discovered until the file is being prepared for payment). If appropriate, a corrected payment will be made. The approval or settlement authority will reopen his or her action on a claim when he or she has reason to believe that a settlement was obtained by means of fraud by the claimant (or claimant's authorized agent or legal representative) and, if substantiated, will correct his or her action. The basis for any correction of an action will be stated in a memorandum which will be included in the file. (b) A successor approval or settlement authority. (1) Reconsideration. A successor approval or settlement authority may reconsider the denial of or final offer in a claim under the FTCA upon request of the claimant, the claimant's authorized agent, or the claimant's legal representative, only on the basis of fraud, substantial new evidence, errors in calculation or mistake (misinterpretation) of law. (2) Settlement correction. A successor approval or settlement authority may reopen and correct a predecessor's action on a claim which was previously settled in whole or in part for the same reasons as an original authority, as stated above. (c) All requests for reconsideration of a denial or final offer by a command claims service or area claims office in which full relief is not granted will be forwarded to the Commander, USARCS for action, with any additional investigative material and legal analysis generated by the request. (d) A request for reconsideration should indicate fully the legal or factual basis asserted as grounds for relief. Following completion of any investigation or other action deemed necessary for an informed disposition of the request, the approval or settlement authority will reconsider the claim and attempt to settle it by granting such relief as may appear warranted. When further settlement efforts appear unwarranted, the entire file with a memorandum of opinion will be referred through claims channels as outlined in Sec. 536.31. If a higher claims authority is unable to grant the relief requested, he or she will forward the claim with the recommendation to the Commander, USARCS, and inform the claimant of such reference. (e) A request for reconsideration must be filed prior to the commencement of suit and prior to the expiration of the 6-month period provided in 28 U.S.C. 2401(b). Upon timely filing, the appropriate authority will have 6 months from the date of filing in which to make a final disposition of the request, and the claimant's option under 28 U.S.C. 2675(a) will not accrue until 6 months after the filing of the request. The action on the request will be effected as set forth in Sec. 536.77(i). (f) Action upon a request for reconsideration by the appropriate authority (either affirming the prior action or granting full or partial relief) constitutes final administrative disposition of a claim. No further requests for reconsideration will be allowed except on the basis of fraud. Attempted further requests for reconsideration on other grounds will not toll the 6-month period provided in 28 U.S.C. 2401(b). Subpart E--Claims Involving Government Vehicles and Property Not Cognizable Under Other Law Sec. 536.83 Statutory authority. The statutory authority for this subpart is contained in the act of 9 October 1962 (76 Stat. 767, 10 U.S.C 2737). This statute is commonly called the ``Nonscope Claims Act.'' For the purposes of this subpart, a Government installation is a facility having fixed boundaries owned or controlled by the Government, and a vehicle includes every description of carriage or other artificial contrivance used, or capable of being used, as a means of transportation on land (1 U.S.C 4). Sec. 536.84 Scope. (a) This subpart prescribes the substantive bases and special procedural requirements for the administrative settlement and payment, in an amount not more than $1,000, of any claim against the United States not cognizable under any other provision of law for damage or loss of property, or for personal injury or death caused by a member or employee of the DA incident to the use of a U.S. vehicle at any location or incident to the use of other U.S. property on a Government installation. (b) Any claim in which there appears to be a disputed issue relating to whether the employee was acting within the scope of employment will be considered under subparts C, D, and F of this part. Only when all parties, to include an insurer, agree that there is no ``in scope'' issue will this chapter be used. Sec. 536.85 Claims payable. (a) General. A claim for personal injury, death, or damage or loss of property, real or personal, is payable under this chapter when-- (1) Caused by the act or omission, negligent, wrongful, or otherwise involving fault of a member of the DA or the ARNG, or a civilian employee of the DA or the ARNG-- (i) Incident to the use of a vehicle of the United States at any place. (ii) Incident to the use of any other property of the United States on a Government installation. (2) The claim may not be settled under any other claims statute and claims regulation available to the DA for the administrative settlement of claims. (3) The claim has been determined to be meritorious, and the approval or settlement authority has obtained a settlement agreement in an amount not in excess of $1,000 in full satisfaction of the claim prior to approval of the claim for payment. (b) Personal injury or death. A claim for personal injury or death is allowable only for the cost of reasonable medical, hospital, or burial expenses actually incurred and not otherwise furnished or paid by the United States. (c) Property loss or damage. A claim for damage or loss of property is allowable only for the cost of reasonable repairs or value at time of loss, whichever is less. Sec. 536.86 Claims not payable. (a) A claim is not allowable under this chapter that-- (1) Results wholly or partly from the negligent or wrongful act of the claimant or his or her agent or employee. The doctrine of comparative negligence is not applicable. (2) Is for medical, hospital, and burial expenses furnished or paid by the United States. (3) Is for any element of damage pertaining to personal injuries or death other than provided in Sec. 536.85(b). All other items of damage; for example, compensation for loss of earnings and services, diminution of earning capacity, anticipated medical expenses, physical disfigurement, and pain and suffering are not payable. (4) Is for loss of use of property or for the cost of a substitute property; for example, a rental. (5) Is legally recoverable by 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. (6) Is a subrogated claim. (b) Examples of claims not allowable under this chapter are as follows: (1) The claimant has collision insurance covering his or her automobile with a deductible amount of $100. While the claimant is sitting in the vehicle, which is properly parked, it is struck from the rear by an Army truck operated by a DA civilian who had misappropriated the Government vehicle. The claimant sustains personal injuries requiring hospitalization for 6 weeks during which actual medical and hospital expenses are incurred in the amount of $1,200. He or she has no medical or hospitalization insurance. The damage to the vehicle totals $300. The claimant's insurance carrier reimburses him or her $200 for the vehicle damage and becomes subrogated in that amount under the policy terms. The claimant files a claim in the amount of $1,500, alleging $300 for property damage to the automobile and $1,200 for medical and hospital expenses. The claim is allowable in the total amount of $1,000, consisting of $100, the insurance deductible for property damage, and $900 of the medical and hospital expenses. The amount claimed for medical and hospital expenses and for property damage merely constitutes separable interests in a single claim that may not be allowed in an amount in excess of $1,000 under this chapter. The claimant's insurer is not a proper party claimant, and no payment is allowable for the insurer's subrogated interest. (2) Claimant has medical and hospitalization insurance that entitles him or her to reimbursement of up to $500 for the reasonable cost of medical and hospital expenses incurred for personal injuries. While visiting at an Army installation the claimant is wounded by the negligent discharge of a Government issue caliber .45 pistol by a soldier who had stolen the weapon. The claimant is hospitalized at a civilian hospital and has incurred medical and hospital expenses of $750. The claimant may be paid $250, the amount allowable for reasonable medical and hospital expenses actually incurred after deduction of $500 legally recoverable by him or her under the insurance policy. Sec. 536.87 When claim must be presented. A claim may be settled under this regulation only if it is presented in writing within 2 years after it accrues. Sec. 536.88 Procedures. So far as not inconsistent with this part, the procedures for the investigation and processing of claims contained in subpart B will be followed. Sec. 536.89 Settlement agreement. A claim may not be paid under this part unless the amount tendered is accepted by the claimant in full satisfaction. A settlement agreement is required before payment. (See sections 536.32) Sec. 536.90 Delegation of authority. (a) Settlement authority. The following are delegated authority to pay up to $1,000 in settlement of claims and to disapprove claims presented in any amount under this chapter: (1) TJAG. (2) TAJAG. (3) The Commander, USARCS, or his designees. (4) The SJA or chief of the command claims service of the following commands: (i) USAREUR. (ii) Eighth U.S. Army, Korea. (iii) WESTCOM. (iv) USARSO. (5) Area claims offices. (b) Approval authority. Claims processing offices with approval authority are delegated authority to approve and pay, in full or in part, claims presented for $1,000 or less and to compromise and pay, regardless of amount claimed, an agreed award of $1,000 or less. (c) Exercise of authority. Authority delegated by this paragraph will not be exercised unless the claims settlement or approval authority has been assigned an office code. Sec. 536.91 Reconsideration. (a) An original approval or settlement authority may reconsider the quantum of a claim upon request of the claimant or someone acting in his behalf. In the absence of such a request, an approval or settlement authority may on his or her own initiative reconsider the quantum of a claim. Reconsideration may occur even in a claim that was previously disapproved in whole or in part (even though a settlement agreement has been executed) when it appears that his or her original action was incorrect in law or fact based on the evidence of record at the time of the action or subsequently received. If he or she determines that the original action was incorrect, he or she will modify the action and, if appropriate, make a supplemental payment. If the original action is determined correct, the claimant will be so notified. The basis for either action will be stated in a memorandum included in the file. (b) An approval or settlement authority may reconsider the applicability of this chapter to a claim upon request of the claimant or someone acting in his behalf, or on his or her own initiative. Such reconsideration may occur even though all parties had previously agreed per Sec. 536.84 when it appears that this agreement was incorrect in law or fact based on the evidence of record at the time of the agreement or subsequently received. If he or she determines the agreement to be incorrect, the claim will be reprocessed under the applicable chapter of this regulation. If he or she determines the agreement to have been correct, that is, that this subpart is applicable, he or she will so advise the claimant. This advice will include reference to any appeal or judicial remedies available under the chapter which the claimant alleges the claim should be processed under. (c) A successor or higher approval or settlement authority may also reconsider the original action on a claim under a or b above, but only on the basis of fraud, substantial new evidence, errors in calculation, or mistake (misinterpretation) of law. (d) A request for reconsideration should indicate fully the legal or factual basis asserted as grounds for relief. Subpart F--Claims Arising From Activities of the Army National Guard Sec. 536.92 Statutory authority. (a) The statutory authority for this subpart is contained in the Act of 13 September 1960 (74 Stat. 878, 32 U.S.C. 715), commonly referred to as the ``National Guard Claims Act'' as amended by Public Law 90-486, 13 August 1968, (82 Stat. 756), Public Law 90-525, 26 September 1968 (82 Stat. 877), Public Law 901-312, 8 July 1970 (84 Stat. 412), and Public Law 93-336, 8 July 1974, 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 as amended by Public Law 98564, 20 October 1984. (b) For purposes of this subpart, the following terminology applies: (1) ARNG personnel. A member of the ARNG engaged in training or duty under 32 U.S.C. 316, 502, 503, 504, 505, or 709. (2) Claimant. An individual, partnership, association, corporation, country, State, commonwealth, territory, or a political subdivision thereof, or the District of Columbia presenting a claim and meeting the conditions set forth in section 536.20. The term does not include the U.S. Government, any of its instrumentalities, except as prescribed by statute, or a State, commonwealth, territory, or the District of Columbia, which maintains the unit to which the ARNG personnel causing the injury or damage are assigned. This exclusion does not ordinarily apply to a unit of local government that does not control the ARNG organization involved. As a general rule, a claim by a unit of local government other than a State, commonwealth, or territory will be entertained unless the item claimed to be damaged or lost was procured or maintained by State, commonwealth, or territorial funds. (3) State. As used in this subpart the term ``state'' includes self-governing commonwealths and territories of the United States; for example, Puerto Rico and the Virgin Islands. Sec. 536.93 Scope. (a) This subpart is applicable in all places and sets forth the procedures to be followed in the settlement and payment of claims for death, personal injury, or damage, loss, or destruction of property caused by-- (1) Members or employees of the ARNG. (2) Noncombat activities of the ARNG when engaged in training or duty under 32 U.S.C. 316, 502, 503, 504, 505, or 709, provided such claim is not for personal injury or death of a member of the Armed Forces or Coast Guard. (3) An employee whose injury or death is incident to service. (b) A claimant dissatisfied with an administrative settlement under this subpart as the result of activities of the NG of a State, Commonwealth, or Territory is not entitled to judicial relief in an action against the United States. Whether he or she has a legal cause of action or may file an administrative claim against such political entity depends upon controlling local law. (c) Claims arising out of activities of the ARNG when performing duties at the call of the governor of a State maintaining the unit are not cognizable under this chapter or any other law, regulation, or appropriation available to the Army for the payment of claims. Such claims should be returned or referred to the authorities of the State, for whatever action they choose to take and claimants should be informed of the return or referral. Care should be taken to determine the status of the unit; members at the time the claims incident occurred, particularly in civil emergencies as units called by the governor, are sometimes ``federalized'' during the call-up. If the unit was federalized at the time the claims incident occurred, the claim will be cognizable under subparts C, D and F or other subparts pertaining to the Active Army. Sec. 536.93 Claims payable. (a) Tort claims. All claims for personal injuries, death, or damage to or loss of real or personal property, arising out of incidents occurring on or after 29 December 1981 based on negligent or wrongful acts or omissions, of ARNG personnel activity within the scope of employment, 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 (subpart D). Such claims arising before 29 December 1981 will, except as modified herein, be processed and settled in accordance with the provisions of subpart C. (b) Noncombat activities. A claim incident to the noncombat activities of the ARNG while engaged in duty or training under 32 U.S.C. 316, 502, 503, 504, 505, or 709 may be settled under this subpart. (c) Subrogated claims. Subrogated claims will be processed as prescribed in Sec. 536.20(b). (d) Advance payments. Advance payments in partial settlement of meritorious claims to alleviate immediate hardship are authorized as provided in subpart B, small claims. Sec. 535.95 Claims not payable. The type of claims listed in Sec. 536.51, as not payable are also not payable under this chapter. Sec. 535.96 Claims under other subparts. (a) Claims within the scope of this subpart that are also cognizable under subparts D, H, J or K will be considered initially under the latter. (b) This chapter does not apply to any claim that may be settled under an exclusive or specific authorization listed in DA Pam 27-162, chapter 8 (see Sec. 536.76). Sec. 536.97 Notification of incident. Except where claims are regularly paid from State sources; for example, insurance, court of claims, and legislative committee, the appropriate adjutant general will ensure that each incident of the type enumerated in Sec. 536.15 is reported immediately by the most expeditious means to the area claims office in whose geographic area the incident occurs or to a claims processing office designated by the area claims office. The report will contain the following information: (a) Date of incident. (b) Place of incident. (c) Nature of incident. (d) Names and organizations of ARNG personnel involved. (e) Names of potential claimants. (f) A brief description of any damage, loss, or destruction of private property and any injuries or death of potential claimants. Sec. 536.98 Investigation. (a) When required. An investigation is required as indicated in Sec. 536.15 except when claims are regularly paid by local sources. (b) By whom made. Area offices, or claims processing offices designated by them, are responsible for the investigation of claims occurring within their assigned geographic areas. The state adjutant general will designate an official or office as point of contact for Army claims personnel and will furnish necessary personnel to conduct or assist in investigations subject to the availability of funds and personnel. (See Sec. 536.7(h). The use of ARNG personnel when available, is authorized. Attention is directed to Sec. 536.19(b) that requires the use of information from other investigations made previously, particularly military and civilian police reports, reports of survey, line of duty investigations, and collateral air crash investigations. (c) Conduct of investigation. The investigation will be conducted in accordance with subpart B, except that a sample scope of employment format will be added, together with a copy of the orders authorizing the performance of duty by the tortfeasor. Also, where a State has waived immunity or has some other means for paying claims, as through legislative committee or insurance, the claims officer's report will contain a statement as to the nature of the remedy against the State, the extent of insurance coverage, and the status of any claim made. If there is no remedy against the State and no insurance coverage, the claims officer's report will so indicate. If a regular procedure has been established for the processing of claims for a particular jurisdiction as by agreement between local authorities and an appropriate Army headquarters or USARCS, this requirement is waived. Finally, inquiry should be made as to any existing or anticipated claim or lawsuit against or by the driver of the ARNG vehicle or insurer. If a claim or lawsuit has been filed, further inquiry should be made as to probable outcome. This could be accomplished by discussion with the driver and an examination of the driver's insurance policy, which, if obtained, should be included in the file. Sec. 536.99 Claims in which there is a State source of recovery. Where there is a remedy against the State, as a result of either waiver of sovereign immunity or liability insurance coverage, the following procedures apply: (a) Where the State is insured, direct contact with State or ARNG officials rather than the insurer is desirable. Regular procedures will be established and followed wherever possible. Such procedures should be agreed on by both local authorities and the appropriate claims authorities subject to concurrence by Commander, USARCS. Such procedures will be designed to ensure that local authorities and U.S. authorities do not issue conflicting instructions for processing claims, and whenever possible, and in accordance with governing local and Federal law, a mutual arrangement for disposition of such claims as in paragraph (c) of this section is worked out. Amounts recovered or recoverable by claimant from any insurer (other than claimant's insurer who has obtained no subrogated interest against the United States) will be deducted from the amount otherwise payable. (b) If there is a remedy against the State or its insurer, the claimant may be advised of that remedy. If the payment by the State or its insurer does not fully compensate claimant, an additional payment may be made. If liability is clear and claimant settles with the State or its insurer for less than the maximum amount recoverable, the difference between the maximum amount recoverable and the settlement normally will be deducted from the payment by the United States. (c) If the State or its insurer desires to pay less than their maximum jurisdiction or policy limit on a basis of 50 percent or more of the actual value of the entire claim, any payment made by the United States must be made directly to the claimant. This can be accomplished by either having the United States pay the entire claim and have the State or its insurer reimburse its portion to the United States, or by having each party pay its agreed share directly to the claimant. If the State or its insurer desires to pay less than 50 percent of the actual value of the claim, the procedure set forth in paragraph (d) of this section will be followed. (d) If there is a remedy against the State and the State refuses to make payment, or there is insurance coverage and the claimant has filed an administrative claim against the United States, forward file with Tort Claim memorandum to the Commander, USARCS; include information on the status of any judicial or administrative action the claimant has taken against the State or its insurer. The Commander, USARCS will determine whether the claimant will be required to exhaust his or her remedy against the State or its insurer, or whether the claim against the United States can be settled without such requirement. If the Commander, USARCS, determines to follow the latter course of action, he or she will also determine whether an assignment of the claim against the State or its insurer will be obtained and whether recovery action will be taken. The State or its insurer will be given appropriate notification in accordance with State law necessary to obtain contribution of indemnification. Sec. 536.100 Claims against the ARNG tortfeasor individually. The procedures set forth in Sec. 536.29 are applicable. With respect to claims arising before 29 December 1981, an ARNG driver acting pursuant to the authorities cited in Sec. 536.94(a) is not protected by the provisions of the Drivers Act (28 U.S.C. 2670(b)); the driver may be sued individually in State court. When this situation occurs, it should be monitored closely by ARNG authorities. If possible an early determination will be made as to whether any private insurance of the ARNG tortfeasor is applicable. Where such insurance is applicable and the claim against the United States is doubtful validity, final actions will be withheld pending resolution of the demand against the NG tortfeasor. If, in the opinion of the claims approving or settlement authority, such insurance is applicable and the claim against the United States is payable in full or in a reduced amount, settlement efforts will be made either together with the insurer or singly by the United States as in Sec. 536.99(b). Any settlement will not include amounts recovered or recoverable as in Sec. 536.28. If the insurance is not applicable, settlement or disapproval action will proceed without further delay. Sec. 536.101 When claims must be presented. A claim may be settled under this subpart only if presented in writing within 2 years after it accrues, except that if it accrues in time of war or armed conflict, or if war or armed conflict intervenes within 2 years after it accrues, and if good cause is shown, the claim may be presented not later than 2 years after war or armed conflict is terminated. As used in this paragraph, war or armed conflict is one in which any Armed Force of the United States is engaged. The dates of commencement and termination of an armed conflict must be established by concurrent resolution of Congress or by determination of the President. Sec. 536.102 Where claims must be presented. A claim must be presented to the appropriate Federal agency. Presentment of a written claim to any full time officer or employee of the NG will be considered a receipt. However, the statute of limitations is tolled if a claim is filed with a State agency, the claim purports to be under the NGCA and it is forwarded to the Army within 6 months, or the claimant makes inquiry of the Army concerning the claim within 6 months. If a claim is received by a DA official who is not a claims approval or settlement authority under this regulation, the claim will be transmitted without delay to the nearest approval or settlement authority. Sec. 536.103 Procedures. (a) The form of a claim under this Act will be as described in Sec. 536.20 (d) and (e). (b) So far as they are not inconsistent with this subpart, the procedures set forth in subpart B, settlement procedures, will be followed in processing a claim under this subpart. (c) The following provisions of subpart C are applicable to claims under this subpart and are hereby incorporated by the following references: (1) Applicable law (Sec. 536.55). (2) Determination of quantum (Sec. 536.56 through section 536.59 ). (3) Delegation of authority (Sec. 536.61). (4) Claims over $100,000 (Sec. 536.62). (5) Settlement procedures (Sec. 537.63). (6) Action on appeal (Sec. 536.64). (7) Attorney fees (Sec. 536.66). Sec. 536.104. Settlement agreement. Procedures concerning settlement agreements will be in accordance with Sec. 536.32, except that the agreement will be modified to include a State and its NG in most cases. A copy of the agreement will be furnished to State authorities and the individual tortfeasor. Subpart G--Claims Under Status of Forces and Other International Agreements General Sec. 536.105 Statutory Authority. The authority for this subpart is contained in the following: (a) 10 U.S.C. 2734a as amended, concerning claims arising overseas under international agreements. (b) 10 U.S.C. 2734b, as amended, concerning claims arising under international agreements in this country. (c) 10 U.S.C. 2735 (d) 10 U.S.C. 2736, as amended, providing for advance payment of certain claims. Claims Arising in the United States Sec. 536.106 Scope. (a) This subpart provides procedures and defines responsibilities for the investigation, processing, and settlement of claims arising out of acts or omissions of members of a foreign military force or civilian component present in the United States, or a territory, commonwealth, or possession thereof under the provisions of reciprocal international agreements, which contain claims settlement provisions applicable to claims arising in the United States, such as Article VIII of the Agreement Regarding the Status of Forces of Parties to the North Atlantic Treaty (DA Pam 27-162, appendix L). (b) The Sending States under current international reciprocal agreements include Belgium, Canada, Denmark, Federal Republic of Germany, France, Greece, Italy, Luxembourg, Netherlands, Norway, Portugal, Turkey, the United Kingdom, Spain, and SHAPE. (c) Reference should be made to DA Pam 27-162, appendix L for delineation of what constitutes a foreign military force, a foreign civilian component, and a foreign dependent. (d) Whenever claims arise involving foreign soldiers training or otherwise stationed in the United States pursuant to bilateral agreements or other arrangements, such as foreign military sales agreements, which contain specific claims provisions, the claims office receiving the claim will report such claims to the Commander, USARCS, for guidance as to the resolution and, if necessary, payment of such claims. (e) The United States, as a Receiving State, is responsible under some Status of Forces Agreements, for the investigation of incidents, and for the processing of claims, arising from acts or omissions of members or civilian employees of an armed force of a sending state present in the United States. The United States may be liable for partial payment of such claims if they arise incident to the official duties of the sending state's soldier or employee. Article VIII of the NATO SOFA is the most commonly invoked agreement of this sort. It applies to torts committed within the North Atlantic Treaty Area, which includes the continental United States and island possessions north of the Tropic of Cancer (i.e. excludes Puerto Rico, Hawaii and American Samoa). It also applies to claims arising out of acts by military or civilian personnel, regardless of nationality, who are assigned, attached to, or employed by an international headquarters established under the provisions of the Protocol on the Status of International Military Headquarters Set Up Pursuant to the North Atlantic Treaty dated August 28, 1952 (e.g. Supreme Allied Command, Atlantic). (f) Single service responsibility for the processing and settlement of claims cognizable under this section is assigned to DA by DODD 5515.8. The Secretary of the Army hereby designates the USARCS as the Receiving State Office for claims cognizable under this section with authority to settle such claims in accordance with 10 U.S.C. 2734b. (See DA Pam 27-162, appendix L.) (g) As Sending State forces are considered assimilated into the armed forces of the United States for purposes of the SOFAs, their members are also barred from being compensated by the United States when they are injured incident to their service, Daberkow v. United States, 581 F.2d 785 (9th Cir. 1978). (See also DA Pam 27-162, appendix L for an example of a government-to-government claim bar in these circumstances.) Sec. 536.107 Notification of incidents. In order for the United States to properly discharge its claims responsibilities under international agreements, it is essential that the responsible military authorities be notified of all incidents, including off-duty incidents, in which members of a foreign military force or civilian component are involved. Any installation that learns of an incident involving a member of a foreign military force or civilian component which results in personal injury, death, or property damage will notify immediately by the most expeditious means the installation to which such person is assigned or attached. An information copy of such notification will be furnished to the Commander, USARCS. In the event the member is not assigned or attached to any installation within the United States, the Commander, USARCS will be notified. The notification (exempt report, AR 335-15, para 720) will contain so much of the following information as is readily available: (a) Date of incident. (b) Place of incident. (c) Nature of incident. (d) Names and organization of foreign personnel involved. (e) Name of potential claimants. (f) A brief description of any damage, loss, or destruction of property, and personal injuries or death. Sec. 536.108 Liaison with sending State representatives. The Commander, USARCS is responsible for maintaining liaison with designated representatives of Sending States as to claims matters under this section, and establishing internal operating procedures. Sec. 536.109 Investigations. (a) Immediate investigation of each incident involving a member of a foreign force or civilian component is required in order to ensure that all necessary information, including necessary statements and depositions, is obtained before the foreign personnel involved, either principals or witnesses, depart the United States. (b) Responsibility for the investigation of an incident rests upon the commander of the installation to which the member of a foreign force or civilian component is assigned or attached, or if not assigned or attached within the United States upon the Commander, USARCS. He or she is authorized to designate an appropriate agency of the Armed Services for this purpose. (c) The installation responsible for the investigation will be free to request appropriate assistance from any other installation within the DOD to the end that a reliable and complete investigation of the incident will be accomplished most economically. Such requested assistance may be for an investigation of the entire incident, or it may cover only part of the investigation; for example, it may be a statement from one witness. Normally such requests will be made of an installation having claims responsibility under the appropriate departmental regulation and nearest the place of the occurrence. In a case involving an aircraft, such request will normally be made of an installation that also has the capability of investigating air accidents giving due regard to the type of aircraft. (d) The investigation will be made in accordance with the regulations of the department of which the installation is a part. Also, information will be obtained as to whether the claimant is a member of a foreign force or civilian component, or dependent of such a member or employee. If so, the following will be listed: (1) Any benefits the claimant may be entitled to from his or her own government whether he or she has applied, or intends to apply, for such benefits. (2) The value of any benefits to which the claimant may be entitled, which he or she may have received, or both. (e) The investigating officer will arrange with the commanding officer of the foreign unit to which a member of a foreign force or civilian component is assigned, or the immediate superior of such member, to obtain from such member the pertinent information and required reports. If the member is assigned or attached to a United States organization or installation, information and reports will be obtained in accordance with the procedure applicable to United States personnel. (f) Notwithstanding the provisions of department regulations, a copy of the report of investigation will be forwarded to the Commander, USARCS immediately upon completion. Sec. 536.110 Claims procedures. (a) Place and time of filing. A claim should be filed with the commanding officer of the United States military installation nearest the place where the incident occurred, but may be filed at any other such installation, within two years of its accrual. Immediately upon receipt, a copy will be forwarded to Commander, USARCS. The claim and supporting documents will conform to the regulations of the department of which the place of filing is a part. Claims filed with a sending State official within 2 years of their accrual will be accepted as timely if received by a U.S. claims office (Sec. 536.5) before the passage of a total of 2\1/2\ years from the date of accrual. (b) Processing of claims. A claim normally will be processed by the installation that first investigated the incident from which it arose in accordance with the pertinent departmental regulations. The commanding officer of an installation with which a claim is filed may by direct communication ascertain whether the incident from which it arose was investigated by another installation, and, if so, may transmit the claim for further processing to that installation. Upon completion of investigation, the claim file will be forwarded to the Commander, USARCS. (c) Official duty claims. Pursuant to 10 U.S.C. 2734b, claims generated by the sending State personnel, while engaged in the performance of official duties, are settled by a person designated in Sec. 536.111 in the manner provided for claims generated by personnel of the armed forces of the United States, that is, under the MCA (subpart C), the FTCA (subpart D) or the Army Maritime Claims Settlement Act (subpart H). The Commander, USARCS, will obtain scope of employment determinations from sending State officials under the conditions set forth in Article VIII, NATO SOFA. Payments made are subject to pro rata reimbursement by the sending State (paragraph 5, Article VIII, NATO SOFA (DA Pam 27-162, appendix L)). (d) Exgratia claims. Claims arising from off-duty activities of sending State personnel are, after investigation, processing, and evaluation, referred by the Commander, USARCS to sending State officials for a determination as to whether an exgratia payment will be offered (paragraph 6, Article VIII, NATO SOFA (DA Pam 27-162, appendix L)). Sec. 536.111 Settlement authority. The Commander, USARCS, or designees, are delegated sole authority to settle claims under this subpart. Sec. 536.112 Advance payments. Advance payments in partial settlement of meritorious claims to alleviate immediate hardship are authorized as provided in subpart B of this part, advanced payments. Sec. 536.113 Litigation. Officials designated by departmental regulations as responsible for reporting the initiation of legal proceedings involving their department will take the following action upon the commencement of legal proceedings: (a) Report the initiation of the proceeding by electrical message to the Litigation Division, Office of TJAG, submitting the information required by departmental regulation for reports of commencement of proceedings, with a copy to Commander, USARCS. (b) Notify the proper United States Attorney and furnish him or her with copies of all process and pleadings. (c) Forward by fastest means available to the Litigation Division, Office of TJAG, three copies of all process, pleadings, and related papers. (d) Unless otherwise directed by TJAG, prepare an investigative (litigation) report in the manner prescribed by departmental regulations and submit three copies to Litigation Division, Office of the TJAG, AR 27-40; AFR 110-3; Navy JAG Manual, chapter 13. Sec. 536.114 Assistance to foreign forces. (a) In order that claims cognizable under this section will be treated as nearly as possible as if they arose from activities of United States personnel, all possible assistance will be provided to commanding officers of foreign units and to members thereof. (b) The commanding officer of an installation at which a foreign unit is stationed will furnish to the commanding officer of the foreign unit copies of regulations and forms relating to claims, and, when applicable, will provide instructions for the members of the unit with respect to the pertinent State laws and reporting of accidents. (c) The commanding officer of an installation to whom a request for information or assistance is made by foreign personnel or to whom a report of an incident is made will provide, to the extent permitted by security regulations, the requested information or assistance. (d) When circumstances permit, assistance in meeting local requirements will be rendered to the foreign personnel involved at the scene of an incident by the commanding officer of the installation to which the incident was reported. The commanding officer of an installation at which a foreign unit is stationed should request that local law enforcement agencies follow procedures applicable to incidents involving military personnel of the United States in any incident involving foreign personnel. Claims Against the United States Arising Overseas Sec. 536.115 Scope. (a) This section provides guidance on claims against the United States which are based on acts of our soldiers or employees within the scope of their employment and which arise in countries for which there is an international agreement requiring a foreign government (i.e., receiving state) to adjudicate and pay the claims subject to partial reimbursement by the United States. (b) Claims by foreign inhabitants based on acts of members of our forces which are outside the scope of their official duties may be payable under the Foreign Claims Act (chapter 10) but are usually not adjudicated by receiving states under most international agreements. These non-scope claims will be processed under the provisions of subpart J. Sec. 536.116 Claims procedures. (a) Claims provisions in Status of Forces Agreements providing for receiving state adjudication have been held to be the exclusive remedy for claims against the United States, preempting any remedy that would otherwise be available under other United States claims statutes, such as the Foreign Claims Act or the Public Vessels Act (Aaskov v. Aldridge, 695 F. Supp. 595 (D.D.C. 1988)). (b) SOFA provisions for receiving state adjudication of claims against the United States usually refer to claims by ``third parties'' against members of the force or civilian component. This clearly includes claims by tourists or business travelers from the United States as well as inhabitants of foreign countries. Depending on how the receiving state interprets the class of proper claimants under the SOFA claims provisions, the receiving state may also adjudicate claims by dependents of our forces. Chiefs of command claims services responsible for claims arising in countries with SOFA or other treaty provisions requiring adjudication of claims against the United States by a receiving state will ensure their tort claims personnel are aware of the receiving state's policy on the issue of who are proper claimants under the treaty provisions. (c) Where SOFA provisions provide for receiving state adjudication of claims, the time limit for filing such claims is often substantially less than the two years that would otherwise be allowed under the FCA or MCA. For example, the Defense Cost Office in Germany requires that a claim be filed within 90 days of the date it accrues. Command claims services will ensure that all claims personnel in their area of responsibility: (1) Receive annual training on the receiving state's claims procedures, to include the applicable time limits, procedures and location of the appropriate receiving state claims office or agency; (2) Screen all new claims and inquiries about claims to identify claimants who must file with the receiving state; (3) Ensure that all such claimants are informed of this requirement and the applicable time limit. (d) All foreign inhabitants who have claims against the United States which are the responsibility of the receiving state (i.e., based on acts within scope of duties of employees or members of U.S. forces and not otherwise excluded by the treaty) will be required to file the claim with the appropriate receiving state office. Those U. S. inhabitants whose claims would otherwise be cognizable under the Military Claims Act (chapter 3) and who are deemed by the receiving state to be proper claimants under the SOFA claims provisions must also file with the receiving state. However, if they fail to do so, their claim may be considered under subpart C, for good cause, with the permission of the Commander, USARCS. Claims for which a foreign country is responsible under a SOFA or similar agreement will not be paid under subpart J or subpart C without prior approval of the Commander, USARCS or the senior JA in country (Sec. 536.52(a)(3) and 536.152(c)). (e) A claim filed and adjudicated by a receiving state under a SOFA or other international agreement claims provision may be considered under other claims provisions of this regulation only if the receiving state denied the claim on the basis that it was not cognizable under the treaty or agreement provisions. Where a claimant has filed a claim with a receiving state and received payment, such payment will be the claimant's final and exclusive remedy against the United States. If the claim is denied on the merits by the receiving state, that action will also be the claimant's final and conclusive remedy against the United States. Sec. 536.117 Responsibilities. (a) The Commander, USARCS, is responsible for-- (1) Providing policy guidance to command claims services concerning SOFA or other treaty reimbursement programs implementing 10 U.S.C. 2734a. (2) Monitoring the reimbursement system to ensure that programs are in place for the proper verification and certification of reimbursement claims. (3) Monitoring funds expended for reimbursements to foreign governments. (b) Command claims services within whose jurisdiction SOFA or other treaty provisions providing for a claims reimbursement system are in force and where DA has been assigned single-service responsibility for the foreign country seeking reimbursement (see Sec. 536.159) are responsible for-- (1) Establishing a program for the verification, certification, and reimbursement of claims. A copy of the procedures implementing the program will be provided to the Commander, USARCS. (2) Providing the Commander, USARCS, with budget estimates or reimbursements in addition to the reports required by Sec. 536.242. (3) Providing the Commander, USARCS, with statistical information each month in which payments are made as to the number of individual claims reimbursed, the total amount paid by the foreign government, and the total amount reimbursed by the United States. (4) Providing the Commander, USARCS, with a quarterly report showing total reimbursements paid during the quarter for maneuver damage and tort claims (broken out by major categories of damage as determined by the Commander, USARCS) and an update on major issues or activities that could impact on the operation or funding of the reimbursement system. Sec. 536.118 Reimbursements for nonappropriated funds. (a) Reimbursements for claims generated by the operations of nonappropriated fund activities will be paid using nonappropriated funds (NAF) (see subpart L). (b) Command claims services will provide the Commander, USARCS, with statistical information each month, if appropriate, as to the number of NAF claims processed and the amounts to be reimbursed by NAFs. Sec. 536.119 Reimbursement for Coast Guard activities. Upon request of the Secretary of Transportation, or designee, any payments made relating to Coast Guard-generated claims covered by 10 U.S.C. 2734a(c) may be reimbursed or paid to the foreign government concerned by a command claims service out of its reimbursement expenditure allowance, subject to reimbursement from the Department of Transportation (10 U.S.C. 1734a(d)). Subpart H--Maritime Claims General Sec. 536.120 Statutory authority. Administrative settlement or compromise of admiralty and maritime claims in favor of and against the United States by the Secretary of the Army, or designee, is authorized by the Army Maritime Claims Settlement Act (10 U.S.C. 4801-04, 4806, as amended). Sec. 536.121 Related statutes. The Army Maritime Claims Settlement Act is supplemented by the following statutes under which suits in admiralty may be brought: The Suits in Admiralty Act (46 U.S.C. 741-752); the Public Vessels Act (46 U.S.C. 781-790); an act Extending the Admiralty and Maritime Jurisdiction (46 U.S.C. 740). Similar maritime claims settlement authority is exercised by the Department of the Navy under 10 U.S.C. 7365 and 7621-23 and by the Department of the Air Force under 10 U.S.C. 9801-04 and 9806. Claims Against the United States Sec. 536.122 Scope. Title 10, United States Code, section 4802, provides for the settlement or compromise of claims for-- (a) Damage caused by a vessel of, or in the service of, the DA or by other property under the jurisdiction of the DA; (b) Compensation for towage and salvage service, including contract salvage, rendered to a vessel of, or in the service of, the DA or to other property under the jurisdiction of the DA; or (c) Damage caused by a maritime tort committed by any agent or employee of the DA or by property under the jurisdiction of the DA. Sec. 536.123 Claims exceeding $500,000. Claims against the United States settled or compromised in a net amount exceeding $500,000 are not payable hereunder, but will be investigated and processed under this section and, if approved by the Secretary of the Army, will be certified to Congress. Sec. 536.124 Claims not payable. A claim is not allowable under this section that-- (a) Is for damage to, or loss or destruction of property, or for personal injury or death, resulting directly or indirectly from action by the enemy, or by U.S. Armed Forces engaged in armed conflict, or in immediate preparation for impending armed conflict. (b) Is for the personal injury or death of a member of the Armed Forces of the United States or a civilian employee incurred incident to his or her service. (c) Is for the personal injury or death of a Government employee for whom benefits are provided by the FECA (5 U.S.C. 8101-8150). (d) Is for the personal injury or death of an employee, including nonappropriated fund employees, for whom benefits are provided by the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 901). (e) Has been made the subject of a suit by or against the United States, except as provided in Sec. 536.127(b). (f) Arises in a foreign country and was considered by the authorities of a foreign country and final action taken thereon under Article VIII of the NATO SOFA, Article XVIII of the Japanese Administrative Agreement, or other similar treaty or agreement, if reasonable disposition was made of the claim. (g) Is based upon the exercise or performance or the failure to exercise or to perform a discretionary function or duty whether or not the discretion is abused, provided that the United States Court of Appeals for the jurisdiction in which the claim arises has not specifically refused to incorporate the discretionary function exception into the Suits in Admiralty Act (e.g. United States Court of Appeals for the Fourth Circuit). (h) Is presented by a citizen or government agency, or a corporation controlled by a citizen or government agency, of a country at war or engaged in armed conflict with the United States, or any country allied with such enemy country unless the appropriate settlement authority determines that the claimant is, and, at the time of the incident, was friendly to the United States. Sec. 536.125 Claims under other laws and regulations. (a) Claims of DA personnel and civilian employees of DOD including military and civilian officers and crews of Army vessels, for damage to or loss of personal property occurring incident to their service will be processed under the provisions of subpart K. (b) Claims that are within the scope of this section and also within the scope of subpart J may be processed under subpart J when specific authority to do so has been obtained from the Commander, USARCS. The request for such authority should be accompanied by a copy of the report of the incident by the Marine Casualty Investigating Officer, or other claims investigator. Sec. 536.126 Subrogation. (a) An insurer will be recognized as a claimant under this section to the extent that it has become subrogated by payment to, or on behalf of, its assured, pursuant to a contract of insurance in force at the time of the incident from which the claim arose. An insurer and its assured may file a claim either jointly or separately. Joint claims will be asserted in the names of, and must be signed by, or on behalf of, all parties; payment then will be made jointly. If separate claims are filed, payment to each party will be limited to the extent of such party's undisputed interest. (b) For the purpose of determining authority to settle or compromise a claim, the payable interests of an insurer (or assurers) and the assured represent merely separable interests, which interests in the aggregate must not exceed the amount authorized for administrative settlement or compromise. (c) The policies set forth in paragraphs (a) and (b) of this section with respect to subrogation arising from insurance contracts are applicable to all other types of subrogation. Sec. 536.127 Limitation of settlement. (a) The period of effecting an administrative settlement under the Army Maritime Claims Settlement Act is subject to the same limitation as that for beginning an action under the Suits in Admiralty Act; that is, a 2-year period from the date the cause of the action accrued. The claimant must have agreed to accept the settlement, and it must be approved for payment by the Secretary of the Army, or other approval authority, prior to the end of such period. The presentation of a claim, or its consideration by the DA, neither waives nor extends the 2-year limitation period and the claimant should be so informed in accordance with paragraph (c), of this section. (b) In the event that an action has been filed in a U.S. district court before the end of the 2-year statutory period, an administrative settlement may be negotiated by the Commander, USARCS with the claimant, even though the 2-year period has elapsed since the cause of action accrued, provided the claimant obtains the written consent of the appropriate office of the Department of Justice charged with the defense of the complaint. Payment may be made upon dismissal of the complaint. (c) When a claim under this section, notice of damage, invitation to a damage survey, or other written document indicating an intention to hold the United States liable is received, the receiving installation, office, or person, will immediately forward such document to the Commander, USARCS. The USARCS claims office receiving notice of the claim will promptly advise the claimant or potential claimant in writing of the comprehensive application of the time limit. (d) Where a claim under this section for $25,000 or less is presented to a Corps of Engineers or other designated area claims office (see Secs. 536.128(c)) and 536.132(c) and thus may be appropriate for action by that office pursuant to the delegation of authority set forth in Sec. 536.128, the receiving Corps of Engineer office will promptly advise the claimant in writing of the comprehensive application of the time limit on the Army's authority to settle the claim as well as the fact that the claim does not toll the statute of limitations for filing suit. (See Sec. 536.21(b).) (e) Claimants are not required to file an administrative claim six months prior to filing suit except for those claims where maritime jurisdiction is based on the Act Extending the Admiralty and Maritime Jurisdiction (46 U.S.C. 740) (i.e. damage or injury on land resulting from an act on navigable waters). However, even in those cases, the filing of an administrative claim does not toll the two year statutory limit for filing suit nor extend the authority of the Army to settle a claim. Any such claim filed within six months of the running of the statute of limitations should be brought to the attention of USARCS immediately and every reasonable effort should be made to complete final agency action before the running of the two year limit. (f) Limitation of liability. Under the provisions of the Limitation of Shipowners' Liability Act, 46 U.S.C. 181-188, the United States may be able, in cases alleging injury or loss due to negligent operation of a vessel, to limit our liability to the value of the vessel after the accident. To take advantage of this law, the United States must file an action in federal district court within six months of receiving written notice of a claim. Therefore, USARCS must be notified within 10 workdays of the receipt of any maritime claim arising in the United States or on the high seas out of the operation of an Army vessel, to include pleasure craft owned by the United States. The Claims Service will coordinate with Litigation Division, OTJAG or the Chief Counsel, COE and the Department of Justice on whether a limitation of liability action will be filed. Sec. 536.128 Approval authority. (a) The Secretary of the Army, the Assistant Secretary of the Army (Financial Management) as designee of the Secretary or the designee of the Secretary may approve any settlement or compromise of a claim under this chapter subject only to the statutory limits (presently $500,000). (b) TJAG, TAJAG and the Commander, USARCS or his designee within USARCS are delegated authority to settle ( i.e. deny or approve payment in full or in part) any claim under this chapter regardless of the amount claimed, provided that any amount awarded does not exceed $100,000 and that the claimant signs an appropriate settlement agreement. (c) Chiefs of command claims services, heads of Corps of Engineers area claims offices and heads of other area claims offices designated by the Commander, USARCS, are delegated authority to deny claims under this chapter presented in an amount not exceeding $25,000. They may also pay in full or compromise any claim where the amount to be paid does not exceed $25,000, provided the claimant is willing to accept the payment and executes an appropriate settlement agreement. (d) Only the authorities designated in paragraph a, above may deny or make a final offer on a claim demanding more than $25,000. If a claim cannot be settled within the authority of the head of an area claims office or the chief of a command claims service responsible for investigating a claim, it will be forwarded to USARCS through appropriate channels with a claims memorandum of opinion recommending disposition. (e) Meritorious claims arising from civil works activities of the Corps of Engineers will be paid from Corps of Engineers funds. Claims in Favor of the United States Sec. 536.129 Scope. (a) Title 10, United States Code, section 4803, provides for agency settlement or compromise of claims for damage to-- (1) DA accountable properties of a kind that are within the admiralty jurisdiction of a district court of the United States. (2) Claims for damage caused by a vessel or floating object to property under the jurisdiction of the DA or property for which the DA has assumed an obligation to respond in damages, where the net amount payable to the United States does not exceed $500,000. (b) Title 10, United States Code, section 4804, provides for the settlement of compromise of claims in any amount for salvage services (including contract salvage and towage) performed by the DA. Claims for salvage services are based upon labor costs, per diem rates for the use of salvage vessels and other equipment, and upon repair or replacement costs of materials and equipment damaged or lost during the salvage operation. The sum claimed is intended to compensate the United States for operational costs only, reserving, however, the right of the Government to assert a claim on a salvage bonus basis in accordance with commercial practice, in appropriate cases. (c) The United States has three years from the date a maritime claim accrues under this section to file suit against the responsible parties. The Army's authority to settle or compromise a suit under this section terminates when the statute of limitations has run. Efforts to compromise a claim under this section should not extend more than two years past the date the claim accrues unless it is clear that an administrative settlement is likely. As a general rule, affirmative claims which are likely to be resolved through litigation should be referred to the Department of Justice within two years of the date the claims accrue. Sec. 536.130 Claims exceeding $500,000. Maritime claims in favor of the United States, except claims for salvage services, may not be settled or compromised under this section at a net amount exceeding $500,000 payable to the United States. However, all such claims otherwise within the scope of this section will be investigated in accordance with the procedures in subpart B and reported to the Commander, USARCS. The Commander, USARCS will forward the claim to the Secretary of the Army, the Assistant Secretary of the Army (Financial Management) as designee of the Secretary or other designee of the Secretary who will then certify it to Congress. Sec. 536.131 Civil works activities. Rights of the United States to fines, penalties forfeitures, or other special remedies in connection with the protection of navigable waters, the control and improvement of rivers and harbors, flood control, and other functions of the Corps of Engineers involving civil works activities are not dealt with in this section. However, claims for money damages that are civil in nature, arising out of civil works activities of the Corps of Engineers and otherwise under this section, for which an adequate remedy is not available to the COE, may be processed under this section. Sec. 536.132 Delegation of authority. (a) The Secretary of the Army, the Assistant Secretary of the Army (Financial Management) as designee of the Secretary or other designee of the Secretary may compromise an affirmative claim by the United States under this subpart subject only to the statutory limit (presently $500,000) on the amount to be received (10 U.S.C. 4803(a)(2)). (b) TJAG, TAJAG and the Commander, USARCS or his designee within USARCS may settle, or compromise, and receive payment on a claim by the United States under this subpart if the amount to be received does not exceed $100,000. They may also terminate collection of claims for the convenience of the government in accordance with the standards specified by the Department of Justice (see 4 CFR parts 103 and 104), regardless of the amount claimed. (c) Chiefs of command claims services, the Chief Counsel, Corps of Engineers, heads of Corps of Engineers area claims offices, and heads of other area claims offices designated by the Commander, USARCS may receive payment in full or compromise any claim by the United States under this subpart provided: (1) The amount of the government's claim does not exceed $100,000, and (2) The amount to be received does not exceed $25,000. The authority delegated in this paragraph to Corps of Engineers claims offices is subject to such limitations as may be imposed by the Chief Counsel, Corps of Engineers. (d) The head of any claim office may assert and receive payment for the full amount of a claim not exceeding $100,000 by the United States under this subpart. Sec. 536.133 Demands. (a) It is essential that demands for payment or notice of intention to make such demands be made as soon as possible following receipt of information of damage to Army property where legal liability to respond is present or possibly present. Except in cases falling under Sec. 536.132(b), copies of the initial demand/notice of intention to make demand letters, as well as copies of subsequent correspondence will be promptly provided to the Commander, USARCS, who will monitor the progress of such claims. (b) Where, in response to any demand made by a field claims office, a respondent denies liability, fails to respond within a reasonable period, or offers a compromise settlement, the file will be promptly forwarded to the Commander, USARCS, except in cases where proposed compromise settlement is deemed acceptable and the claim is otherwise within the authority delegated in Sec. 536.132(b). Investigations and Reports Sec. 536.134 Procedure. Claims under this subpart will be investigated and reported in accordance with subpart B of this part, AR 55-19 or other applicable regulations. Sec. 536.135 Reports. A copy of the report of a marine casualty investigation disclosing the basis for a claim under section II or III of this chapter will be furnished to the Commander, USARCS within 60 days after the day on which the marine casualty occurred or after notice of such casualty. An interim report will be forwarded if the investigation has not been completed within the 60-day period. The report will contain original signed statements of all witnesses and other original documentary evidence to the extent practicable. Sec. 536.136 Form of claim. (a) A demand letter may initiate a claim. Formalization of a claim may be accomplished at any time before consummation of the settlement or compromise. It is preferable that claims under section II of this chapter be submitted on SF 95; however, the submission of a special form, in view of commercial practice, is not required. The reporting of a maritime casualty under Sec. 536.135 will not be deferred in anticipation of the receipt of a claim. (b) Claims of foreign nationals will be stated in the currency of the country in which the casualty occurred, or in the currency of the nationality of the claimant if other than the country of the casualty. Subpart I--Claims Under Article 139, Uniform Code of Military Justice Sec. 536.137 Statutory authority. The authority for this subpart is Article 139, UCMJ (10 U.S.C. 939), which provides for redress for property willfully damaged or destroyed, or wrongfully taken, by members of the armed forces of the United States. Sec. 536.138 Purpose. This subpart sets forth the standards to be applied and the procedures to be followed in the processing of claims for damage, loss, or destruction of property owned by or in the lawful possession of an individual whether civilian or military, a business, a charity, or a State or local government, where the property was wrongfully taken or willfully damaged by military members of DA. Claims cognizable under other claims statutes may be processed under this subpart. Sec. 536.139 Effect of disciplinary action. Administrative action under Article 139 and this subpart is entirely separate and distinct from disciplinary action taken under other sections of the UCMJ or other administrative actions. Because action under Article 139 and this chapter requires independent findings on issues other than guilt or innocence, the mere fact that a soldier was convicted or acquitted of charges is not dispositive of a claim under Article 139. Sec. 536.140 Claims cognizable. Claims cognizable under Article 139, UCMJ, are limited to-- (a) Claims for property willfully damaged. Willful damage is damage which is inflicted intentionally, knowingly, and purposefully without justifiable excuse, as distinguished from damage caused inadvertently or thoughtlessly through simple or gross negligence. Damage, loss, or destruction of property caused by riotous, violent, or disorderly acts, or by acts of depredation, or through conduct showing reckless or wanton disregard of the property rights of others may be considered willful damage. (b) Claims for property wrongfully taken. A wrongful taking is any unauthorized taking or withholding of property, not involving the breach of a fiduciary or contractual relationship, with the intent to temporarily or permanently deprive the owner or person lawfully in possession of the property. Damage, loss, or destruction of property through larceny, forgery, embezzlement fraud, misappropriation, or similar offense may be considered wrongful taking. Sec. 536.141 Claims not cognizable. Claims not cognizable under this subpart and Article 139 include-- (a) Claims resulting from negligent acts. (b) Claims for personal injury or death. (c) Claims resulting from acts or omissions of military personnel acting within the scope of their employment. (d) Claims resulting from the conduct of Reserve component personnel who are not subject to the UCMJ at the time of the offense. (e) Subrogated claims, including claims by insurers. Sec. 536.142 Limitations on assessments. (a) Time Limitations. To be considered, a claim must be submitted within 90 days of the incident out of which the claim arose, unless the special court-martial convening authority (SPCMCA) acting on the claim determines that good cause has been shown for the delay. (b) Limitations on amount. If the General Court-Martial Convening Authority (GCMCA), or designee, acting on the claim determines that an assessment against a soldier in excess of $10,000 for a single incident is meritorious, he or she will assess the pay of that soldier in the amount of $10,000 and forward the claim to the Commander, USARCS with his or her recommendation as to the additional amount that should be assessed. (1) A SPCMCA has authority to approve a pay assessment not to exceed $5,000 on a single incident and deny a claim in any amount. (2) A GCMCA, or designee, has authority to approve a pay assessment in an amount not to exceed $10,000 on a single incident. (3) Only the Commander, USARCS, or designee, has authority to approve a pay assessment in an amount greater than $10,000 on a single incident. (c) Direct damages. Assessments are limited to direct damages for the loss or damage to property. Indirect, remote, or consequential damages may not be considered under this chapter. Sec. 536.143 Procedure. Area claims offices and claims processing offices with approval authority are responsible for publicizing the Article 139 program and maintaining a log for Article 139 claims presented in their areas (see DA Pam 27-162, paragraph 10-6). Area claims offices and claims processing offices with approval authority are required to monitor action taken on Article 139 claims and ensure that time requirements are met. If assessment action on a particular claim will be unduly delayed, the office may consider the claim under 31 U.S.C. 3721 and chapter 11 of this regulation if it is otherwise cognizable under that authority. The office will counsel the claimant to repay any overpayment if the Article 139 claim is later successful (see Sec. 516.163(d)(1). (a) Form 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. (See Sec. 536.20(d)(1)(i)) (b) Action upon receipt of a claim. Any officer receiving a claim will forward it within 2 working days to the SPCMCA over the soldier or soldiers against whom the claim is made. If the claim is made against soldiers under the jurisdiction of more than one such convening authority who are under the same general court-martial convening authority, the claim will be forwarded to that general court-martial convening authority, who will designate one SPCMCA to investigate and act on the claim as to all soldiers involved. If the claim is made against soldiers under the jurisdiction of more than one SPCMCA at different locations and not under the same general court-martial convening authority, the claim will be forwarded to the SPCMCA whose headquarters is closest to the situs of the incident, who will investigate and act on the claim as to all soldiers involved. If a claim is made against a member of one of the other Military Services, the claim will be forwarded to the commander of the nearest MACOM of that Service. (c) Action by the SPCMCA. (1) If the claim appears to be cognizable, the SPCMCA will appoint an investigating officer within 4 working days of receipt of a claim. The investigator will use the procedures of this chapter supplemented by the procedures of AR 15-6, chapter 4, applicable to informal investigations. The claims officer of a command, if he or she is a commissioned officer, may be appointed as the investigating officer. (2) If the claim is not made against a person who is a member of the armed forces of the United States at the time the claim is received, or if the claim otherwise does not appear to be cognizable under Article 139, the SPCMCA may refer it for legal review (see paragraph (e) of this section) within 4 working days of receipt. If, after legal review, the SPCMCA determines that the claim is not cognizable, he or she may take final action disapproving the claim (see paragraph (f)) without appointing an investigating officer. (d) Action by the investigating officer. The investigating officer will provide notification to the soldier against whom the claim is made. (1) If the soldier indicates a desire to make voluntary restitution, the investigating officer may, with the convening authority's concurrence, delay proceedings until the end of the next pay period to accomplish this. If the soldier makes payment to the claimant's full satisfaction, the claim will be dismissed. (2) In the absence of full restitution, the investigating officer will determine whether the claim is cognizable and meritorious under the provisions of Article 139 and this 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. (3) If the soldier is absent without leave so that he or she cannot be provided with notification, the Article 139 claim may be processed in the soldier's absence. If an assessment is approved, a copy of the claim and memorandum authorizing pay assessment will be forwarded by transmittal letter to the servicing finance and accounting office (FAO) for offset input against the soldier's pay account. In the event the soldier is dropped from the rolls, the servicing FAO will forward the assessment documents to Commander, Defense Finance and Accounting Services, ATTN: Military Pay Operations, Indianapolis, Indiana 46249. (e) Legal review. The SPCMCA will refer the claim to the area claims office or claims processing office servicing his or her command to review for legal sufficiency and advice. This will be either after completion of the investigating officer's report or subsequent to the SPCMCA's decision that the claim is clearly not cognizable (Sec. 536.143(c)(2)). That office will furnish within 5 working days or such time as the SPCMCA will provide a written opinion as to-- (1) Whether the claim is cognizable under the provisions of Article 139 and this subpart. (2) Whether the findings and recommendations are supported by evidence. (3) Whether there has been substantial compliance with the procedural requirements of Article 139, this subpart, and AR 15-6. (4) Whether the claim is clearly not cognizable (see section 536- 143(c)(2)) and final denial action can be taken without appointing an investigating officer. (5) If the investigator recommends an assessment more than $5,000, the Judge Advocate/claims attorney will forward the packet to the head of the area claims office for the legal review. Within 5 working days, the head of the area claims office will forward the packet, with recommendations, to the GCMCA for approval of an assessment not to exceed $10,000. If the recommended assessment is over $10,000, the head of the area claims office will then forward the packet to the Commander, USARCS for final approval of the assessment. (f) Final action. After considering the advice of the legal advisor, the approval authority will disapprove or approve the claim in an amount equal to or less than the amount recommended by the investigating officer up to $10,000. The approval authority will notify the claimant, and any soldier subject to his or her jurisdiction, of the determination and the right to request reconsideration. (See Sec. 536.144.) A copy of the investigating officer's findings and recommendations will be enclosed with the notice. The approval authority will then suspend action on the claim for 10 working days pending receipt of a request for reconsideration unless he or she determines that this delay will result in substantial injustice. The approval authority will direct the servicing finance officer for the soldier against whom assessments are approved to withhold such amount from the soldier not to exceed $10,000. (See Sec. 536.142(b)). For any soldier not subject to the approval authority's jurisdiction, the approval authority will forward the claim to that commander who does exercise special court-martial jurisdiction over the soldier for collection action. (g) Assessment. Subject to any limitations provided in appropriate regulations, the servicing finance officer will withhold the amount directed by the approval authority and pay it to the claimant. The assessment is not subject to appeal and is conclusive on any finance officer. If the servicing finance officer finds that the required amount cannot be withheld because he or she does not have custody of the soldier's pay record or because the soldier is in a no pay due status, the servicing finance officer will promptly notify the approval authority of this in writing. (h) Post settlement action. After action on the claim is completed, the claims office servicing the command which took final action will retain the original claim file and forward a complete copy of the claim file to the SPCMCA. The article 139 claim will be filed locally, IAW the Modern Army Record Keeping System (MARKS). If a claim for the same incident is filed UP AR 27-20, chapter 11, a copy of the article 139 claim will be incorporated into the chapter 11 claim file. (i) 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. Sec. 536.144 Reconsideration. (a) General. Although Article 139 does not provide for a right of appeal, either the claimant or a soldier whose pay is assessed may request the SPCMCA or a successor in command to reconsider the action. A request for reconsideration will be submitted in writing and will clearly state the factual or legal basis for the relief requested. The SPCMCA may direct that the matter be reinvestigated. (b) Reconsideration by the original SPCMCA. The original SPCMCA may reconsider the action so long as he or she occupies that position, regardless of whether a soldier whose pay was assessed has been transferred. The original SPCMCA may modify it if he or she determines that the action was incorrect, subject to paragraph (d) of this section. However, the SPCMCA should only modify the action on the basis of fraud, substantial new evidence, errors in calculation, or mistake of law. (c) Reconsideration by a successor in command. Subject to paragraph (d) of this section, a successor in command may only modify an action on the basis of fraud, substantial new evidence, errors in calculation, or mistake of law apparent on the face of the record. (d) Legal review and action. Prior to modifying the original action, the SPCMCA will have the claims office render a legal opinion and fully explain the basis for modification as part of the file. If a return of assessed pay is deemed appropriate, the SPCMCA should request the claimant to return the money, setting forth the basis for the request. There is no authority for repayment from appropriated funds. (e) Disposition of files. After completing action on reconsideration, the SPCMCA will forward the reconsideration action to the claims office who will then file the action in accordance with Sec. 536.143(h). Subpart J--Claims Cognizable Under the Foreign Claims Act General Sec. 536.145 Statutory authority. The authority for this subpart is contained in the following statutes: (a) 10 U.S.C. 2734 as amended, commonly referred to as ``The Foreign Claims Act.'' (b) 10 U.S.C. 2734a as amended, commonly referred to as ``The International Agreement Claims Act.'' (c) The Act of 8 September 1961 (10 U.S.C. 2736), as amended. (d) Act of 4 March 1923 (36 U.S.C. 121, 138b). Sec. 536.146 Scope. (a) This subpart implements the FCA and authorizes the administrative settlement of claims of inhabitants of a foreign country, or by a foreign country or a political subdivision thereof, against the United States for personal injury or death or property damages caused outside the United States, its territories, commonwealths, or possessions by military personnel or civilian employees of the DA, or claims which arise incident to noncombat activities of the Army. (b) Claims resulting from the activities, or caused by personnel of another military department, service, or agency of the United States may also be settled by Army foreign claims commissions as authorized by this subpart. (c) Claims arising from acts or omissions of employees of nonappropriated fund activities may also be settled by Army foreign claims commissions pursuant to this subpart if otherwise applicable, but are payable from nonappropriated funds (subpart L). Sec. 536.147 Claims cognizable under other subparts. (a) Subparts C and E. Claims within the scope of the FCA, which otherwise would be cognizable under subpart E will be considered first under this subpart. Claims by foreign inhabitants covered by the FCA may not be paid under the provisions of subpart C (see 10 U.S.C. 2733(b)(2)). (b) Subpart I. Consideration may be given to first settling under subpart I, any claim which is also within the scope of the FCA. However, if the settlement of the claim under subpart I will cause identifiable hardship to the claimant, procedures of this subpart will be used. (c) Subpart K. Claims cognizable under this chapter, which are also cognizable under subpart K, will be considered first under the latter subpart. (d) Subpart H. Claims that may be settled under chapter 8 may be settled under this chapter only when specifically authorized by the Commander, USARCS. (See Sec. 536.125(b).) Sec. 536.148 Claims provisions of treaties and agreements. When a foreign government has assumed responsibility for settling claims against the United States pursuant to Article VIII, NATO--SOFA, or other similar treaty or agreement, any claim presented to U.S. authorities will be forwarded to the appropriate United States sending State Office, or similar office, for referral to the foreign government. The investigation by U.S. authorities of claims cognizable under a SOFA will normally be limited to securing evidence from U.S. sources. Sec. 536.149 Presentation of claims. A claim may not be allowed under this subpart unless it is presented within 2 years after it accrues. Such presentation may be made to United States authorities or to a foreign government in accordance with Article VIII, NATO--SOFA or other applicable treaty or agreement. Sec. 536.150 Form of claims. (a) A claim normally will be presented in writing. A report of the incident to the authorities stated in Sec. 536.149 by the claimant or agent requesting compensation is an adequate presentation. Under unusual circumstances, a claim presented orally by the claimant to U.S. authorities may be considered acceptable. An oral claim must be reduced to writing, however, not more than 3 years after the date on which it accrues. The written claim must state the time, place, and nature of the incident; the nature and extent of damage, loss, or injury; and the amount of compensation claimed. (b) A claim will be stated in the currency of the country where the incident occurred, or the country where the claimant was an inhabitant at the time of the incident. The U.S. dollar equivalent of a foreign currency, computed at the time the claim is filed and based on the annual Foreign Currency Fluctuation Account exchange rate (where applicable), will determine whether a foreign claims commission has monetary jurisdiction to settle the claim. (See Sec. 536.149.) (c) Claims commissions and command claims service will coordinate informally with the Chief, Special Claims Branch, USARCS to determine whether it is necessary to comply with the mirror file requirements of Sec. 536.21 (c) and (d), for any claim cognizable under this subpart in which the amount claimed is greater than $50,000 and a foreign government is not responsible for adjudication under a SOFA or other agreement. Sec. 536.151 Claimants. (a) General. (1) In personal injury or property damage cases, a claimant must have been an inhabitant of a foreign country at the time of the incident and not otherwise excluded as a claimant. In a wrongful death case, the proper claimants are those who are entitled by the law of the country where the incident occurred to bring a claim for the decedent's death, and the decedent must have been an inhabitant of a foreign country at the time of the incident and not otherwise excluded as a claimant. However, it is not necessary that the claimant in personal injury and property damage cases, or the decedent in a death case, be a citizen of, or have legal domicile in the foreign country, to establish that he or she is an inhabitant thereof. (2) A corporation or other organization doing business in a foreign country on a permanent basis may qualify as a proper claimant although organized under U.S. law. (3) United States citizens residing overseas may be proper claimants provided it is established that they actually are inhabitants of a foreign country (see paragraph 7-4c(1)(a), DA Pam 27-162) and are not otherwise excluded. (4) The government of a foreign country and political subdivisions thereof are proper claimants unless waiver provisions of applicable international agreements exclude such claims. (b) Claimants excluded. (1) A national, or a corporation controlled by a national, of a country at war or engaged in armed conflict with the United States or of any country allied with such enemy country, is excluded as a claimant, unless the appropriate foreign claims mission considering the claim or the responsible military commander, determines that the claimant is, and at the time of the incident was, friendly to the United States. (2) United States military personnel and civilian employees of the U.S. Government or its agencies and instrumentalities and their dependents, who are normally residents of the United states and who, at the time of the incident giving rise to the claim, are residing in a foreign country primarily because of their own or their sponsor's duty or employment status, are not foreign inhabitants and are excluded from coverage under the Foreign Claims Act. (i) Foreign born spouses, children and other dependent family members of such military personnel and United States employees are also deemed to be inhabitants of the United States and excluded from coverage under this chapter if they have resided with their sponsor in the United States and are now overseas primarily because of their sponsor's duty assignment. (ii) Children born to or adopted by a member of the force or civilian component who has not been reassigned to the United States since the date of the birth or adoption, are deemed to be inhabitants of the United States and excluded from coverage under this chapter from the time they are born or adopted. However, children born or adopted overseas will be deemed to be foreign inhabitants if there is clear evidence that they are not a member of the sponsor's household and are not residing overseas primarily because of the sponsors duty assignment. For example, a child born or adopted overseas would be deemed to be a foreign inhabitant if the child continued to reside overseas with the other parent after their military or civilian employee sponsor returns to the United States or is transferred to another foreign country on permanent change of station orders. (See paragraph 7-4c, DA Pam 27-162. (iii) In the case of a spouse married overseas to a member of the armed forces or a U.S. civilian employee, the spouse continues to be a foreign inhabitant until he or she moves with the sponsor to another foreign country or to the United States. (iv) Parents or other relatives who are financially dependent on a member of the military or civilian employee, but are not members of the household, continue to be foreign inhabitants. If they are members of the sponsor's household they lose foreign inhabitant status once they have resided in the United States or another foreign country with the sponsor. (3) Other residents of the United States, or its territories, commonwealths, or possessions who are visiting, touring, or employed overseas, but not inhabitants of a foreign country, are excluded. (c) Insurers or other subrogees. (1) Under this subpart the property claim of an insured, but not that of a subrogee, may be considered. This precludes consideration of the claim of an insurer subrogated by operation of law or the terms of a policy of insurance for payments made by it to or for its insured. However, an insured party will not be required to exhaust a remedy against an insurer, which the insured obtained by payment of a premium to that insurer, prior to payment of a property damage claim under this chapter. (2) Further, no claim or any part thereof, the amount of which has been recovered or is reasonably recoverable from workmen's compensation, health insurance, social security, or any indemnifying law or indemnity contract, may be paid. (3) Provisions of paragraphs (c) (1) and (2) of this section are intended to preclude any payment that does not go to and remain with the injured party claimant. (4) If the application of paragraph (c)(2) of this section would impose severe hardship upon an individual, the claim should be forwarded to Commander, USARCS, who is authorized to make exceptions in individual cases upon presentation of adequate justification. Sec. 536.152 Claims payable. (a) A claim for death, personal injury, or loss or damage to property may be allowed under this chapter if it resulted from a negligent or wrongful act or omission of any of the following categories of personnel regardless of whether the act or omission was within the scope of their employment-- (1) Military personnel of the United States. (2) Civilian employees of a military department or the Department of Defense who are U.S. citizens. Claims generated by U.S. citizens who are employees of a nonappropriated fund activity who are paid with non- appropriated funds will be paid in accordance with the provisions of this subpart and subpart L from nonappropriated funds. (3) Other civilian employees who are not U.S. citizens and were recruited or transferred from a country other than the one in which they are employed and where the incident occurred. (b) Claims based on the negligent or wrongful acts of the following categories of employees will be paid under this subpart only if the act was within the scope of their employment-- (1) Civilian employees who are not U.S. citizens, who were recruited in the country in which they are employed, and where the incident occurred. Claims arising from the operation of U.S. Armed Forces vehicles or other equipment by the employees described in the preceding sentence, however, may be paid, even though the employees are not acting within the scope of their employment, provided the employer or owner of the vehicle or other equipment would be liable under local law in the circumstances involved. (2) Officers or civilian employees of the American Battle Monuments Commission, acting within the scope of employment. Claims generated by such personnel will be paid from American Battle Monuments Commission appropriations. (3) Certain Red Cross volunteers meeting the criteria set forth in AR 40-3, paragraph 2-42. (c) A claim may be settled under this subpart if it arises from non-combat activities (see glossary). Activities incident to combat, whether in time of war or not, are excluded. (d) Property for the loss or damage of which claims may be settled under this subpart includes-- (1) Real property used and occupied in connection with training, field exercises, or maneuvers. An allowance may be made for the use and occupancy of real property arising out of trespass or other tort, even though claimed as rent. Real estate claims founded upon contracts are processed under the provisions of AR 405-15. (2) Personal property bailed to the Government under an agreement, express or implied, unless the owner has expressly assumed the risk of damage or loss. Sec. 536.153 Claims not payable. A claim may not be allowed under this subpart that-- (a) Results from action by an enemy or results directly or indirectly from an act of the armed forces of the United States in combat, except if it arises from an accident or malfunction incident to the operation of an aircraft of the armed forces of the United States including its airborne ordnance, indirectly related to combat, and occurring while preparing for, going to, or returning from a combat mission. (b) Is purely contractual in nature. (c) Is one for which a foreign country is responsible under Article VIII NATO--SOFA, or other similar treaty or agreement. (See Sec. 536.148). However, if a foreign country refuses to recognize legal responsibility for the claim, or to consider it under applicable treaty provisions, the senior Army JA in country or, where the estimated value of the claim is within USARCS authority, the Commander, USARCS, may authorize a foreign claims commission to consider the claim. (d) Arises from private or domestic obligations as distinguished from Government transactions. (e) Is based solely on compassionate grounds. (See DA Pam 27-162, paragraph 8-4.) (f) Is a bastardy claim. (g) Arises from the operations of a nonappropriated fund activity, unless generated by military personnel performing assigned duties (subpart L). (h) Is for the personal injury or death of a member of the armed forces of the United States incurred incident to service. (See Sec. 536.25.) (i) Is for the personal injury or death of a Government employee for whom benefits are provided by the FECA (5 U.S.C. 8101-8150). (j) Is for the personal injury or death of an employee, including nonappropriated fund employees, for whom benefits are provided by the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 901 et. seq.). (k) Is for the personal injury or death of any employee for whom benefits are provided under workmen's compensation type laws or regulations, including local law or custom, in cases where contribution is made or insurance premiums paid directly or indirectly by the United States on behalf of the injured employee. If, in the opinion of a foreign claims commission the claim should be considered payable; (e.g. injuries did not result from the normal risk of employment or adequate compensation is not payable under workmen's compensation laws,) the file will be forwarded with recommendations through claims channels to the Commander, USARCS, who may authorize payment of an appropriate award. The Commander, USARCS, also may specify that all or any part of any compensation received by the claimant from workmen's compensation sources, as above, will be deducted from the award to claimant. The claim of an insurance carrier subrogee who has received premiums paid directly or indirectly by the United States on behalf of the injured employee, however, is not payable. (l) Is for taking of property by technical trespass, such as the overflight of aircraft or a taking contemplated by the Fifth Amendment to the U.S. Constitution, as distinguished from common law trespass. (See AR 405-15, para 2c, and DA Pam 27-162, paragraphs 8-46 and 8-75). (m) Is for reimbursement for medical, hospital, or burial expenses furnished at the expense of the United States. (n) Is for patent or copyright infringement. (See AR 27-60.) (o) Is for war trophies, or articles intended directly or indirectly for persons other than the claimant or members of his or her immediate family such as articles acquired to be disposed of as gifts or for sale to another, voluntarily bailed to the Army, or for precious jewels and other articles of extraordinary value voluntarily bailed to the DA. The preceding sentence is not applicable to claims involving registered or insured mail. No allowance will be made for any item when the evidence indicates that the acquisition, possession, or transportation thereof was in violation of DA directives. (p) Is for rent, damage, or other payments involving the acquisition, use, possession, or disposition of real property or interests therein by and for the DA, except as authorized by section 536.152(c)(1). Real estate claims founded upon contract are generally processed under AR 405-15. (See DA Pam 27-162, paragraph 8-46.) (q) Is not in the best interests of the United States or is contrary to public policy, general principles of equity, or the basic intent of the FCA. Examples are claims by inhabitants of unfriendly countries, claims by or based on injury or death of individuals considered to be unfriendly to the United States, or claims for property losses resulting directly or indirectly from illegal activities of the claimant, such as drug dealing, black marketing, or illegal loan sharking. When a claim is considered to be not payable for the reasons stated in this paragraph, the issue will be presented to the Commander, USARCS for determination of the applicability of this exclusion. (r) Arises from the activities of the Panama Canal Commission. (s) Is based upon an act or omission of a member or employee of the Army, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation is valid. However, this exception should not be used without prior approval of the Commander, USARCS. (t) Is based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency, or a member or employee of the Army, whether or not the discretion involved is abused. However, this exception should not be used without prior approval of the Commander, USARCS. (u) Arises in respect to the assessment or collection of any tax or custom duty, or the detention of any goods or merchandise by any officer of customs or excise or any other law enforcement officer. (v) Is a claim for which a remedy is provided by the Suits in Admiralty Act (46 U.S.C. 741-752) or the Public Vessels Act (46 U.S.C. 781790), or cognizable under subpart H, unless specifically authorized by the Commander, USARCS. (See Sec. 536.147(d).) (w) Is a claim arising out of an act or omission of any employee of the Government in administering the provisions of the Trading With the Enemy Act (50 U.S.C. App, sections 1-31). (See DA Pam 27-162, paragraph 8-8d.) (x) Is for damages caused by the imposition or establishment of a quarantine by the United States. (y) Results wholly from the negligent or wrongful act of the claimant or his or her agent. Claims involving comparative negligence are not barred by this provision. (z) Arises out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. (aa) Is for damages caused by the fiscal operations of the DA, the Treasury, or by regulation of the monetary system. Sec. 536.154 Compensation. (a) In determining an appropriate award, the law and custom of the country where the incident occurred will be used to determine what elements of damages are payable and which individuals are entitled to receive compensation. However, where the claimant is an inhabitant of another foreign country and only temporarily in the country where the incident occurred, the quantum of certain elements of damages, such as lost wages and future medical care, may be calculated based on the law and economic conditions in the country of the claimant's permanent residence. Punitive damages and interest will not be allowed. Court costs, attorney fees, bail, costs of filing a claim, and similar charges also are not allowed. (b) Local law or custom pertaining to contributory or comparative negligence and to joint tortfeasors will be applied. Sec. 536.155 Computation of amount. (a) The amount allowed will, to the extent possible, be apportioned among claimants as prescribed by local law. (b) After appropriate compensation for the total damages suffered has been computed, any payment claimant has received from the tortfeasor, or any joint tortfeasor, will be deducted. This includes amounts collectible from a tortfeasor's or joint tortfeasor's insurance company or amounts paid by any other third party. (c) Deductions for insurance. (1) Normally there will be deducted from any award the amount of any applicable insurance coverage recovered or an amount that can be reasonably expected to be recovered and which has been or will be paid to the claimant. In this regard, every effort will be made to monitor the insurance aspect of the case and encourage direct settlement between the claimant and the insurer. (See Sec. 536.151(c)(1).) (2) When efforts under paragraph (c)(1) of this section are of no avail or it otherwise is determined that an insurance settlement will not be reasonably available for application to the award, settlement may be accomplished without making a deduction. In such cases, an assignment of the insured's rights against the insurer will be obtained and, in appropriate cases, reimbursement action will be instituted against the insurer under applicable procedures. (3) If the reason that an insurance settlement is not available is due to insolvency or bankruptcy of the insurer, no award will be made until prior consent has been obtained from the Commander, USARCS. In this event, a report on a bankruptcy will be forwarded without delay setting forth all pertinent information including the alleged reasons for the bankruptcy and the facts concerning the licensing of the insurer. (d) Settlements will be stated in the appropriate foreign currency. To determine the proper approval authority, the settlement or the claimed amount (in claims where a settlement cannot be reached) will be converted to the U.S. dollar equivalent (based on the annual Foreign Currency Fluctuation Account exchange rate, where applicable) on the date of the commission's action. (e) Payment will be made in the currency of the country in which the incident occurred or where the claimant resided at the time of the incident. However, if the claimant resides in another foreign country at the time of payment, payment in an amount equivalent to that which would have been paid under the preceding sentence may be made in the currency of that third country. (f) No more than 20% of the total cost of an award to the United States may be paid as attorney fees or as a fee by any representative. This fee limitation should be made a part of all settlement agreements. (g) In appropriate cases, a commission or other approval authority can require a structured settlement with periodic or deferred payments if it is feasible to make such arrangements in the country where the claimants reside. Such settlements are especially appropriate on claims of minors. In cases where the time, duration, amount or need for any element of future damages is uncertain, the part of the award for such damages may be paid into a reversionary trust with the reversion to the United States. Foreign Claims Commissions Sec. 536.156 Appointment and functions. (a) Claims cognizable under this section will be referred to a foreign claims commission for processing regardless of the amount claimed. The commander senior Judge Advocate of a command having a command claims service will appoint necessary foreign claims commissions to action claims arising within his or her geographic area jurisdiction, and on claims arising in another geographic area jurisdiction that are transferred by agreement between the commanders involved. The senior Judge Advocate may delegate this authority to commander or chief of the command claims service. (b) All other commissions will be appointed by the Commander, USARCS, to act on any claims referred to the commission regardless of where the claim arose. Commissions appointed by the Commander, USARCS, for units based in CONUS may act on any claim arising out of the operations of their unit. Any claims commission operating in or adjudicating claims arising out of an area within the jurisdiction of a command claims service will comply with the legal and procedural guidance of that service. (c) A commission may operate as an integral part of a command claims service that will determine the cases to be assigned to it, furnish necessary administrative services, and establish and maintain its records. Where a commission does not operate as a part of a command claims service, it may operate as a part of the office of a division, corps or higher command SJA, who will perform the foregoing functions. (d) Any appointing authority may relieve a commission appointed by him or her. One copy of each order concerning appointment, relief, or change of responsibility of a commission will be forwarded without delay to the Commander, USARCS. (e) Normally, the claims commission is responsible for the investigation of all claims referred to it, using the procedures in subpart B, Investigation, and any local procedures established by the appointing authority or command claims service responsible for the area in which the claim arose. The chief of a command claims service can request assistance on claims investigation in their geographical areas from units or organizations other than the claims commission. The Commander, USARCS can do likewise for any claim referred to a commission appointed under his authority. (f) When a foreign claims commission intends to deny a claim, award less than the amount claimed, or recommend an award less that the amount claimed but in excess of its authority, it will notify the claimant, the claimant's authorized agent, or the claimant's legal representative, in writing by the means most likely to ensure receipt by the claimant, of its intended action on the claim and the legal and factual basis for that action. The purpose of this notice is to give the claimant an opportunity to object to the commission's action and state the reasons for the objection before final action on the claim. Where the commission intends to award the amount claimed or to recommend to higher authority an award equal to the amount claimed, this procedure is not necessary. (1) This notice should be given at least 30 days prior to final action by the commission, except for small claims processed under the provisions of subpart B, Small Claims. (2) If the commission proposes to make a partial award or to recommend a partial award to higher authority, a settlement agreement should be enclosed with the notice. If the commission is recommending an award in excess of its authority, the agreement should indicate that the recommendation is contingent upon approval by higher authority. Claimants will be advised they may either accept the commission's action by returning the signed settlement agreement or, if they are dissatisfied with the commission's action or recommendation, they may submit a response in writing stating the factual or legal reasons why they believe the commissions proposed action is incorrect. (3) A commission may alter its initial decision based on the claimant's response or proceed with its intended action. If the claimant's response raises a general policy issue, the commission may request an advisory opinion from the Commander, USARCS while retaining the claim for final action at its level. (4) Upon completion of its evaluation of the claimant's response, the commission will notify the claimant of its final decision and advise the claimant that its action is final and conclusive by law (10 U.S.C. 2735), unless the final decision is a recommendation for payment above its authority. In that case, the commission will forward any response submitted by the claimant along with the commission's claims memorandum of opinion to the approval authority and will notify the claimant accordingly. (5) Every reasonable effort should be made to negotiate a mutually agreeable settlement on meritorious claims. When an agreement can be reached, the notice and response provisions above are not necessary. If the commission recommends an award in excess of its authority, the settlement agreement should indicate that its recommendation is contingent upon approval by higher authority. Sec. 536.157 Composition. A foreign claims commission normally will be composed of either one or three members. Alternate members of three-member commissions may be appointed where circumstances require and be substituted for regular members for specific cases by order of the appointing authority. The appointing orders will clearly state who is designated the president of a three-member commission. Two members of a three-member commission will constitute a quorum, and the commission decision will be determined by majority vote. Sec. 536.158 Qualification of members. A member of a foreign claims commission normally will be either a commissioned officer or a claims attorney. At least two members of a three-member commission must be JAs or claims attorneys. In exigent circumstances, a qualified non-lawyer employee of the armed forces may be appointed to a foreign claims commission subject to prior approval by the Commander, USARCS. Such approval may be granted only upon a showing of the employee's status and qualifications and adequate justification of the need for such appointment (for example, lack of legally qualified personnel). The commission will be limited to employees who are citizens of the United States. An officer, claims attorney, or employee of another armed force will be appointed a member of an Army foreign claims commission only if approved by the Commander, USARCS. Sec. 536.159 Delegation of authority. (a) One-member commission. Unless otherwise restricted by the appointing authority, a one-member foreign claims commission that is a JA or a claims attorney may consider and pay appropriate claims presented in any amount provided a mutually agreed settlement can be reached in an amount not over $15,000 or disapprove any claim presented in an amount not over $15,000. In no case will the jurisdictional limit of $15,000 be used to unfairly reduce payment of a claim meritorious in an amount over $15,000. Any other one-member foreign claims commission may consider and pay, in full or in part, claims presented in an amount not exceeding $2,500 that it considers meritorious. (b) Three-member commission. A three-member commission may take the following actions on a claim properly before the commission, unless otherwise restricted by the appointing authority. (1) Disapprove a claim presented in any amount. Where a claim presented in any amount over $50,000 is disapproved, the commission, after final action has been taken, will forward to the appointing authority the written notice to the claimant required by Sec. 536.157(f), any response by the claimant and its notice of final action on the claim. (2) Approve and pay, in full or in part, a claim filed in any amount which is adjudicated by the commission as meritorious in an amount not exceeding $50,000. For claims in excess of $50,000 in which the commission approves payment of an award for $50,000 or less, the commission, after taking final action, will forward to the appointing authority the written notice to the claimant required by Sec. 536.157(f), any response by the claimant and its notice of final action. (3) Recommend an award in excess of $50,000. The commission will comply with the notice and comment provisions of Sec. 536.157(f), and forward the claim to the approval authority under cover of a claims memorandum of opinion. Recommendations for awards in excess of the commissions authority will be sent through any command claims service responsible for the area in which the claim arose and, in the case of recommendations for awards in excess of $100,000, through the Commander, USARCS. (4) In any case where no claim exceeds $50,000 but the total amount to be awarded on all claims arising out of the same incident exceeds $100,000, no action will be taken to make payment until a claims memorandum of opinion (see section 536.22) on the incident has been forwarded and reviewed by the Commander, USARCS or his designee. (c) TJAG, TAJAG and the Commander, USARCS or his designee at USARCS may approve and pay, in whole or in part, any claims so long as the amount of the award does not exceed $100,000; may disapprove any claims, regardless of either the amount claimed or the recommendation of the commission forwarding the claim; or, if a claim is forwarded to USARCS for approval of payment in excess of $50,000, may refer the claim back to the commission or to another commission for further action. (d) Payments in excess of $100,000 will be approved by the Secretary of the Army, the Assistant Secretary of the Army (Financial Management) as designee of the Secretary or other designee. (e) Following approval, where required, and receipt of an agreement by the claimant accepting the specific sum awarded by the commission, the claim will be processed for payment in the appropriate currency. The first $100,000 of any award will be paid from Army claims funds. The excess will be reported to the Claims Division, GAO, 441 G Street, NW., Washington, DC 20548-9100, together with the documents listed in Sec. 536.35(b). (f) The chief of an overseas command claims service may delegate to a one-member commission the responsibility for the receipt, processing, and investigation of any claim, regardless of amount, except those required to be referred to a receiving state office for adjudication under the provisions of a treaty concerning the status of our forces in the country where the claim arose. If, after investigation, it appears that action by a three-member commission is appropriate, the one-member commission should send the claim to the three-member commission with a complete investigation report to include a discussion of the applicable local law and a recommendation for disposition. Sec. 536.160 Advance payments. (a) Advance payments pursuant to 10 U.S.C. 2736, as amended, in partial payment of meritorious claims to alleviate hardship are authorized under the conditions and procedures provided in subpart B, advance payments. However, no advance payment is authorized if the incident occurs in a foreign country which, pursuant to the NATO-SOFA or other similar treaty or agreement, is responsible for the settlement of claims arising therein. An advance payment may be made in a nonscope claim. (b) The SJA of a command having a command claims service, or chief of a command claims service, is authorized to approve an advance payment under this section. Subpart K--Personnel Claims and Related Recovery Actions General Sec. 536.161 Authority. 31 U.S.C. 3721, formerly 31 U.S.C. 240-243, as amended by PL 97- 226, 28 July 1982 (the Act); DODD 5515.10, 17 June 1965, with C 1, 6 July 1965 destruction of personal property of military personnel or civilian employees incident to their service, and recovery from carriers, warehouse firms, and other third parties responsible for such loss, damage, or destruction. Sec. 536.162 Delegation of authority. (a) Settlement authority. (1) The statutory limit of $40,000 in settlement of claims and to disapprove claims regardless of the amount claimed: (i) TJAG. (ii) TAJAG. (iii) The Commander, USARCS, or the Chief, Personnel Claims and Recovery Division. (2) The following area delegated authority to pay up to $25,000 in settlement of claims and to disapprove claims regardless of the amount claimed: (i) The SJA and, subject to limitations imposed by him or her, the chief of the command claims service of the following commands: (A) USAREUR. (B) Eighth U.S. Army, Korea. (C) USARSO. (ii) Heads of area claims offices designated under section 536.5(b)(1) and (2), (subject to the provisions of section 536.5(f). (b) Approval authority. Heads of claims processing offices with approval authority are delegated authority to pay up to $10,000 in settlement of claims. (c) Office code. Authority delegated by this paragraph will not be exercised unless the claims settlement or approval authority has been assigned an office code. (d) Engineer area claims offices are not delegated approval or settlement authority under this subpart and will forward any such claims to the area claims office for the geographic area in which the engineer office is located. (e) If a claims adjudicated amount is in excess of the monetary jurisdiction of the claims office, the JA/claims attorney will approve and pay the claim up to the delegated authority of that office. Mark the outside of the file ``PRIORITY'' and forward it with all documentation (to include computer disk, paper screen and memorandum of opinion) to the next higher claims authority for additional payment. Sec. 536.163 Scope. (a) This subpart prescribes the substantive bases and special procedural rules for the administrative settlement of claims against the United States submitted by the Active Army, ARNG, and USAR personnel, and civilian employees of DOD and DA for damage to or loss of personal property incident to their service. This subpart also sets forth procedures for the administrative recovery from responsible third parties for loss, damage, or destruction of such personal property. The underlying Act is a gratuitous payment statute; claims thereunder do not sound in tort even though some tort concepts are used in the adjudication of claims under this subpart. Further, the Act is not designed to make the United States a total insurer of the personal property of proper claimants. (b) The maximum amount that may be paid for any loss or damage arising from a single incident is limited by the Act as amended by Public Law 100-565, 31 October 1988, to $40,000. The maximum limit of $40,000 is specifically limited to losses of personal property occurring after 31 October 1988, and to losses resulting from evacuations or from hostile acts directed against the United States or its officers and employees. A maximum limit of $25,000 is applicable to losses of personnel property occurring after 28 July 1982 and before 1 November 1988. (c) Any claim within the scope of this subpart, which otherwise would be cognizable under the MCA and subpart C; the FTCA and subpart E; the Act of 9 October 1962 (10 U.S.C. 2737) and subpart E; the NGCA and subpart F; the Maritime Claims Settlement Act and subpart H; or the FCA and subpart J will first be considered under this subpart. (1) If not payable under this subpart, the claim will be considered under the other chapters prior to any disapproval. Particular attention should be given to the nature of the claim; many alleged ``unusual occurrences'' are actually torts, either by employees or by individuals in their private capacities. While some incidents may not seem common to those experiencing them, an ``unusual occurrence'' is defined as an occurrence beyond the normal risk associated with day-to-day living and working. An unusual occurrence does not involve a reasonably foreseeable consequence of normal human activity. For example, having a vehicle hit by a golf ball while driving by a golf course or struck by an unknown vehicle in a parking lot is a reasonably foreseeable consequence of driving a vehicle. (2) If a claim cognizable under this subpart arises from an incident resulting in personal injury, no payment or emergency partial payment will be made under this chapter until an investigation completed in accordance with Secs. 536.19 and 536.20 has been conducted. The Commander, USARCS, Chief, Personnel Claims and Recovery Division, or the chief of a command claims service may waive this requirement. Prior to payment the investigation must establish that the incident was not caused by the negligence of the claimant or an agent of the claimant. An example of such an incident would be a fire in quarters that results in an injury to a soldier's family member and was presumably caused by faulty wiring, but might have been caused by the claimant's negligence. (3) Any claim within the scope of this subpart which is also cognizable under Article 139 will first be considered under subpart I. If settlement of the Article 139 claim will be unduly protracted, the claim may be settled under this chapter and the claimant counseled to repay any overpayment if payment is later received under the provisions of subpart I. (d) Any claim cognizable under this subpart that is primarily the result of fault or negligence of a Government contractor other than a common carrier or warehouse firm will first be referred to the contractor or his or her insurer for settlement in accordance with DA Pam 27-162, paragraph 2-6. Sec. 536.163 Claimants. (a) A claim may be presented under this subpart only by-- (1) A member of the Active Army. (2) A member of the USAR or the ARNG who is engaged in inactive duty for training or in active duty training. (3) A civilian employee of DA; a civilian employee of the ARNG funded under 32 U.S.C. 709; a civilian employee of the DOD who is not an employee of the Department of the Navy or the Department of the Air Force; or a continental wage scale, local wage scale, and other foreign national local civilian employees. (See DODD 5515.10.) However, the claims of a DOD dependent school teachers and Defense Commissary Agency civilian employees will be settled by the Service operating the installation where that school teacher/Commissary Agency employee is employed. (4) The authorized agent or legal representative of paragraphs (a) (1) through (3) of this section. However, any claim presented by a claims preparation service or other hired agent must be signed and ratified by the proper claimant to preclude assignment of claims, regardless of whether the claimant has executed a power of attorney. (5) The survivors of paragraphs (a) (1) through (3) of this section in the following order of precedence: (i) Spouse. (ii) Child or children. (iii) Father or mother, or both. (iv) Brothers or sisters, or both. (b) A member of another U.S. Armed Force may present a claim to an Army claims office for loss of or damage to personal property incident to his or her service. Any such claim will be investigated and processed short of adjudication under the provisions of this chapter. The completed file will contain all required supporting documents, including evidence in support of the amount claimed and documents facilitating recovery from a carrier, insurer, or other third party. Such claims will be forwarded direct to the nearest legal office of the service concerned for settlement. However, Marine personnel claims should be forwarded directly to the Commandant of the Marine Corps (MHP-40), Headquarters, United States Marine Corps, Washington, DC 20380-0001. (c) Claims of civilian employees of nonappropriated fund activities for damage to or loss of personal property incident to their service will be processed in accordance with this chapter and subpart L, with payment made only from nonappropriated funds. (d) Subrogees, assignees, conditional vendors, and similar third parties are not proper claimants under this chapter, and their claims are barred from payment. Further, claims for losses of subrogees and similar third parties are barred from consideration or payment under other chapters when the property owner could have presented a cognizable claim for loss under the provisions of this chapter. (e) Personnel who do not fall within one of the categories listed in a above (such as Red Cross employees, foreign military personnel, United Services Organization personnel, or employees of Government contractors, including technical representatives) are not proper claimants under this chapter, and their claims are barred. (f) Claimants who are absent without leave (AWOL) will have any pending claim denied once they are dropped from the rolls (DFR). The denial letter will be mailed to the claimant's last known civilian address. Sec. 536.165 Claims cognizable. The following are nonexclusive examples of categories of damage to or loss of property that may be considered by claims approval and settlement authorities as having been sustained incident to service. Note that a loss unconnected with the performance of duty, particularly a loss occurring outside of normal duty hours, would often not be deemed incident to a civilian employee's service, even though the same loss might be deemed incident to a soldier's service. This is particularly true if the civilian employee is a local foreign national employee. A claims approval or settlement authority will ask the Chief, Personnel Claims and Recovery Division, USARCS for an advance opinion prior to adjudicating a claim that is deemed incident to service but does not fall within one of the following categories: (a) Losses in quarters or other authorized places. Damage to or loss of property by fire, flood, hurricane, or other unusual occurrence, or by theft or vandalism may be considered, while located at-- (1) Quarters, wherever situated, which are assigned to the claimant or otherwise provided in kind by the Government. (2) Quarters outside the United States, which are occupied authority but are neither assigned to the claimant nor otherwise provided in kind by the Government. However, a claim is not cognizable when the claimant is-- (i) A civilian employee who is a local inhabitant. (ii) A U.S. citizen hired as a civilian employee while residing abroad or after moving to a foreign country as part of the household of a person who is not a proper party claimant. (iii) A family member residing outside the United States while the soldier is stationed in a different country. (iv) A local inhabitant of a U.S. territory who is in that territory at the time of a loss when he or she is in the ARNG either Full Time-National Guard Duty (AGR) or on active duty under title 10, or in the USAR on active duty for any reason. (3) Any place of lodging wherever situated, such as a hotel, motel, guest house, transit billet or other place, when occupied by claimant while in the performance of temporary duty or similar authorized military assignment of a temporary nature. (4) Any warehouse, office, hospital, baggage holding area, or other place authorized or apparently authorized by the government for the reception or storage of personal property. (b) Transportation losses. Damage to or loss of property incident to transportation or storage pursuant to orders or in connection with travel under orders or in performance of military duty may be considered, if not the result of a mechanical or structural defect. This includes property in the custody of-- (1) A common or contract carrier or any other commercial concern, either pursuant to a Government Bill of Lading (GBL), Government contract, or the commuted rate method (Joint Travel Regulation (JTR) Vol II, paragraph C8001(4)). With respect to mobile homes, it is the owner's responsibility to place the mobile home and its tires, tubes, frame, and other parts in fit condition and to load the mobile home to withstand the stress of normal transportation, at his or her own expense, prior to shipment. (2) An agent or agency of the Government, to include property mailed at Government expense in the custody of the U.S. Postal Service. (3) The claimant or appropriate personnel while the claimant is traveling in a private or public vessel, vehicle, aircraft, or other conveyance in performance of military duty. (4) The claimant or appropriate personnel while the claimant is traveling aboard a military vessel, aircraft, or vehicle in performance of military duty or pursuant to orders authorizing travel, including travel pursuant to leave orders on a space available basis. (c) Losses due to enemy action, evacuation, hostile acts, or public service. Damage to or loss of property may be considered which is a direct result of-- (1) Enemy action, or threat thereof; combat, guerrilla, or other belligerent activities, whether or not the United States was involved; or unjust confiscation by a foreign power or its nationals of property belonging to soldiers or U.S. national civilian employees. (2) Acts of mob violence, terrorist attacks, or other hostile acts directed against the United States or its officers and employees. (3) Action by the claimant in an attempt to quiet a civil disturbance or alleviate a public disaster. (4) Efforts by the claimant to save a human life or Government property. (5) Evacuation from a foreign country on the recommendation or order of competent authority. This subsection provides payment for property belonging to soldiers and civilian employees and their command-sponsored dependents, with entitlement to shipment at Government expense, which is abandoned during an evacuation and not recovered, or damaged by an incident of political unrest or hostile act prompting or following such evacuation. (d) Loss of money delivered to a Government agent. Loss of funds neither applied as directed by the owner nor returned may be considered when the funds were delivered to and accepted by Government personnel authorized or apparently authorized to receive them for such purposes as safekeeping; deposit in savings deposit program; transmission by personal transfer account; purchase of U.S. bonds or postal money orders; or conversion into military payment orders, Government checks, or into another kind of currency. (e) Vehicle losses. Vehicles are defined to include automobiles, motorcycles, mopeds, utility trailers, camping trailers, trucks with mounted camper bodies, motor homes, boats, boat trailers, bicycles, and aircraft. Mobile homes and other property used as dwelling places are not considered vehicles. Damage to or loss of vehicles and property properly stored or contained therein may be considered when-- (1) Used in the performance of military duty, if such use was authorized or directed for the convenience of the Government and provided-- (i) The travel did not include commuting to or from the permanent place of duty and, (ii) The loss or damage did not arise as a result of a mechanical or structural failure of the vehicle during such usage. (2) Shipped to, from, or between an overseas area or areas at Government expense in accordance with paragraph (b) of this section, provided the loss or damage did not arise as a result of mechanical or structural failure of the vehicle during such shipment. (3) Located at quarters or place of lodging as defined in paragraphs (a)(1), (2), and (3) of this section, which for the purposes of this paragraph includes garages, carports, driveways, assigned parking spaces, and lots specifically provided and used for the purpose of parking at one's quarters, provided that the loss or damage is caused by fire, flood, hurricane, or other unusual occurrence, or by theft or vandalism. There is a presumption that vehicle theft or vandalism occurs off the military installation and is generally not compensable. Claims for theft or vandalism to vehicles (including property stored inside a vehicle) are only payable when a claimant proves that the theft or vandalism occurred while the vehicle was located at his or her authorized or assigned quarters (for example, a military police report indicates broken glass from the window is on the driveway). (4) Located other than at quarters on a military installation, provided that the loss or damage is caused by fire, flood, hurricane, or other unusual occurrence. The term ``military installation'' is used broadly to describe any fixed land area, wherever situated, controlled, and used by military activities or the DOD. A vehicle that is properly on the installation should be presumed to be incident to the claimant's service unless the application of such a presumption would be unreasonable under the particular circumstances, such as visiting a fellow soldier on another military installation while on leave. (f) Clothing and articles being worn. Damage to or loss of clothing and articles being worn while on a military installation or in the performance of military duty may be considered, provided such loss was caused by fire, flood, hurricane, or other unusual occurrence, or by theft. Spilling battery acid, paint or similar substances on clothing, or breaking eyeglasses during physical training is not an unusual occurrence. (g) Personal property held as evidence. Deprivation of property held as evidence may be considered when, after taking all circumstances into consideration, the temporary loss of the property will work a grave hardship on the claimant who is a victim of a crime. (h) On-post robberies. Claims for losses due to theft from the person on a military installation by the use of force, violence, or threat to do bodily harm may be considered. If cognizable under Article 139, the claims should be considered under subpart I. Sec. 536.166 Claims not cognizable. The following are examples of types and categories of property losses for which compensation will not be allowed: (a) Property lost or damaged as a result of claimant's negligence. Property damaged or lost, in whole or in part, as a result of any negligence or wrongful act of the claimant, the claimant's spouse or family member, or any agent or employee of the claimant acting in the scope of employment, is not compensable. Negligence may be defined as failure to exercise the degree of care that a reasonable and prudent person would have exercised under the same circumstances. (b) Property damaged or lost while located at quarters within the United States that were occupied by the claimant but were neither assigned nor otherwise provided in kind by the Government. (c) Intangible property. Loss of property that has no extrinsic and marketable value but is merely representative or evidence of value, such as non-negotiable stock certificates, promissory notes, bonds, bills of lading, warehouse receipts, insurance policies, baggage checks, and bank books, is not compensable. Similarly, a claimant may not be compensated for the inability to use non-refundable tickets or recover lease or utility deposits. Loss of a thesis, or other similar item, is compensable only to the extent of the out-of-pocket expenses incurred by the claimant in preparing the item such as the cost of the paper or other materials. No compensation is authorized for the time spent by the claimant in its preparation or for supposed literary value. (d) Incidental expenses and consequential damages. The Act and this chapter authorize payment for loss of or damage to personal property only. Except as provided in Sec. 536.165, consequential damages or other types of loss or incidental expenses (such as loss of use, interest, carrying charges, cost of lodging or food while awaiting arrival of shipment, attorney fees, telephone calls, cost of transporting claimant or family members, inconvenience, time spent in preparation of claim, or cost of insurance premiums) are not compensable. (e) Real property. Damage to real property is not compensable. In determining whether an item is considered to be an item of personal property, as opposed to real property, normally, any movable item is considered personal property even if physically joined to the land. (f) Articles acquired or held for sale or disposition by other commercial transactions on more than an occasional basis, or for use in a private profession or business enterprise. (g) Enemy property or war trophies. (h) Property acquired, possessed, or transported unlawfully or in violation of local law or competent regulations or directives. This includes loss or damage to vehicles not properly registered or insured in compliance with local law or competent regulations or directives. (i) Loss of money in any amount during shipment or storage with baggage or household goods. This includes coin collections. (j) Property stored at a commercial facility for the convenience of the claimant and at his or her expense. (k) Substantial fraud. The head of an area claims office may completely deny a claim that he determines to be substantially tainted by fraud. (l) Not a proper claimant. See Secs. 536.164 and 536.165(a)(2). Sec. 536.167 Time prescribed for filing. (a) No claim may be paid under this subpart unless it is presented in writing within 2 years after it accrues. A claim is presented when it is received at a U.S. military establishment, not when it enters the mails. For purposes of this chapter, a claim accrues at the time of the incident causing the loss or damage, or at such time as the loss or damage is or should have been discovered by the claimant through the exercise of due diligence. In the case of multiple deliveries on the same Government Bill of Lading, the claim accrues for those later received items when they are delivered. The claim filed for the initial damage will be amended to reflect the subsequently claimed items. If personal property remains in storage after the expiration date of legal entitlement to storage at Governmental expense, a claim normally accrues on such expiration date. (b) If a claim accrues in time of war or armed conflict in which the Armed Forces of the United States are engaged, or if such a war or armed conflict intervenes within 2 years after the claim accrues, and if good cause is shown, then the claim may be presented not later than 2 years after the war or armed conflict is terminated. A claims office may telephonically obtain the authority to grant additional time to file a claim, from the Chief, Personnel Claims and Recovery Division. If good cause for delay in filing is not established, the intervention of war or armed conflict, in itself, will not permit payment of a claim presented later than 2 years after accrual. Pursuant to the provisions of Public Law 96-446 (94 Stat 1967), periods of captivity are excluded in computing the 2-year statute of limitations. (c) If a proper party claimant is notified that his or her personal property in non-temporary storage has sustained partial damage, the statute of limitations does not begin to run until the claimant has an opportunity to ascertain the extent of the loss, or the claimant's entitlement to Government shipment or storage expires, whichever occurs sooner. However, the claimant is expected to exercise due diligence in attempting to ascertain the extent of the loss. Moreover, when a proper party claimant is notified that his or her personal property in non- temporary storage at government expense has sustained complete destruction or loss, the statute of limitations begins to run when this notification is received. Sec. 536.168 Form of claim. Claims personnel will date-stamp, log in and consider as a personnel claim any writing received at a U.S. military establishment if it constitutes a demand for compensation for loss of or damage to personal property. Claims personnel will not return such writing to the claimant without action as ``lacking documentation'' and may only consider it abandoned in accordance with Sec. 536.234(a). For claims cognizable under this chapter, a demand need not be for a specified sum of money. However, the claimant must complete and submit DD Form 1842 and DD Form 1844 (List of Property and Claim Analysis Chart) as a condition precedent to payment of the claim. Claimants will be required to complete only one DD Form 1842 and DD Form 1844 and to provide only one copy of supporting documentation. A demand on carrier, warehouse firm, insurer, or other third party is not considered a claim against the United States. Submission of DD Form 1840R (Notice of Loss or Damage) to the claims office does not constitute presentment of a claim. If, however, a claimant alleges that he or she filed a claim, and the evidence shows that within the 2-year period the claimant visited a claims office of one of the Armed Forces with an apparent desire to obtain compensation, it may be presumed in absence of evidence to the contrary, that the claimant, in fact, submitted a claim. Sec. 536.169 Presentation. (a) A claim should, if practicable, be submitted in writing to the claims office serving the Active Army installation where the claimant is stationed, or nearest to the point where the loss or damage occurred, or where investigation of the facts and circumstances can most conveniently be made. ARNG and USAR personnel will not file claims with their unit but with the nearest Active Army installation. If submission in accordance with the foregoing is impracticable under the circumstances, the claim may be submitted in writing to the commander of any installation or establishment of the Armed Forces who will forward the claim to the appropriate Army claims office for processing. To constitute a filing under this regulation, a claim must be presented in writing to an agency of one of the military departments other than the National Guard or a Reserve Component. (b) The claimant is responsible for substantiating ownership or possession, the fact of loss or damage, and the value of property, especially for expensive items. The claimant is also responsible for promptly discovering and reporting loss whenever failure to do so would prejudice either effective investigation of the claim or effective recovery action from a third party. Failure to do so may result in reduction of the amount allowable or denial of the claim in accordance with Sec. 536.181(a). Evaluation, Adjudication, and Settlement of Claims Sec. 536.170 Policy. (a) The prompt, fair disposition of claims of soldiers and civilians, consistent with the protection of the interests of the Government, is necessary to maintain morale and to prevent financial hardship. Claims approval and settlement authorities should exercise reasonable discretion in the consideration of claims to achieve this goal. (b) The small claims procedures (subpart B of this part, small claims) applicable to claims that may be settled by payment of $1,000 or less without extensive investigation should be used to the maximum extent feasible. When this procedure is used, every reasonable effort should be made to settle the claim within the shortest possible period, usually one working day. However, the small claims procedure should not be used when additional investigation is necessary to develop the facts required for an informed disposition of the claim regardless of the amount claimed. (c) Within the DA, personnel claims will not be transferred except as authorized by the USARCS or a command claims service. (See DA Pam 27-162, paragraph 2-55.) (d) When it is necessary to disapprove a claim or to allow a sum less than the amount claimed, the claimant must be informed either orally or in writing of the factual or legal basis for the decision. The file must reflect that this explanation was provided to the claimant. (e) When a claimant refuses to provide information concerning private insurance coverage, the JA may assume, in the absence of evidence to the contrary, that the claimant had private insurance covering the entire loss and disapprove the claim. Sec. 536.171 Preliminary findings required. Prior to allowing or recommending the allowance of compensation for the loss, damage, or destruction of property, the approval or settlement authority will make the following findings: (a) The claimant is a proper party claimant. (b) The evidence substantiates the fact of ownership or possession of the personal property involved and the fact of loss, damage, or destruction as alleged. (c) The loss, damage, or destruction of the property involved was sustained incident to the claimant's military service or employment. (d) The type of property claimed and the amount or quantity claimed was reasonable or useful under the attendant circumstances for the claimant to have used or possessed incident to military service or employment. (e) There is no bar to the allowance of compensation for the type of property involved, or for the type of loss, damage, or destruction providing the basis of the claim. (f) The claimant certified that no part of the loss is covered by insurance. If private insurance covers any part of the loss, the claimant must first settle with the insurance company. See Sec. 536.181(b)(5). (Coverage under most personal property insurance carried by service personnel includes items lost or missing, destroyed, or damaged by water while in custody of a public carrier.) Sec. 536.172 Guides for computing amounts allowable. (a) For claims of losses incident to service processed under this subpart or subpart L, the Commander, USARCS, will periodically publish an Allowance List--Depreciation Guide specifying rates of depreciation and maximum payments applicable to categories of property. The Allowance List--Depreciation Guide will be binding on all Army claims personnel. (See Sec. 536.9(f).) For claims for losses incident to service processed under this subpart or subpart L, no payment will be made on an item or category of items in excess of the maximum payment in effect at the time the claim arose, except as provided in Sec. 536.174(b). (b) The Commander, USARCS will promulgate additional guides, references, and tables to assist in computing allowable compensation under this chapter. (See DA Pam 27-162, chapter 2.) Sec. 536.173 Ownership or custody of property. Compensation may be allowed even though the property was not in the actual possession of the claimant at the time of the damage or loss. Compensation may also be allowed even though the property was not owned by the claimant, provided it was lawfully under his or her dominion and control. However, compensation will not be allowed for damage or loss to personal property transported to accommodate another, other than the claimant's family members, nor will compensation for damage or loss to a vehicle loaned to a claimant be allowed unless both the claimant and the owner are proper party claimants. A vehicle registered in the name of the claimant or a spouse is not deemed, as between them, to be loaned. When a vehicle is subject to a lien, the vehicle is not deemed to be loaned merely because the title is in the name of the lien- holder. Sec. 536.174 Determination of compensation. (a) A claim may be allowed only for the amount and quantity of personal property considered reasonable or useful for the claimant to have used or possessed under the attendant circumstances, incident to his or her service or employment. In determining the reasonableness or utility of types and quantities of property included in a claim cognizable under this chapter, an approval or settlement authority will give consideration to the claimant's living conditions, family size, social obligations, and need to have more than average quantities, as well as the circumstances attending acquisition or possession of the property and the manner of damage or loss. (b) The maximum amounts allowable for specific types and categories of personal property listed in The Allowance List--Depreciation Guide constitute a determination of amount of quantity deemed reasonable or useful. A maximum allowance per item indicates that the allowance for a single item of the type or category of property involved will not exceed that amount. A maximum allowance per claim indicates that the total allowance for all items of the listed type or category is limited to that amount. Where both a maximum amount per item and per claim are applicable, the total allowance for all items will be limited to the maximum per claim, which will reflect the allowance of not more than the maximum per item for any individual item. To avoid application of these maximum allowances, a soldier or civilian employee may obtain additional protection on shipments by requesting full replacement protection or increased value protection. The Chief, Personnel Claims and Recovery Division, USARCS may waive the maximum in a particular case for good cause shown. (c) Compensation allowable for an item of personal property will not exceed the actual value of the item at the time of its loss, damage, or destruction. Guidance on determining the base figure for actual value, using replacement costs, estimates, or the Table of Adjusted Dollar Value, is provided in DA Pam 27-162, chapter 2. Because soldiers are permitted to replace items missing or destroyed during PCS moves from the Overseas Post Exchange Catalog, even when ordering from this catalog is not otherwise permitted, such items may be valued using this catalog. (d) In adjusting a base figure to determine actual value, standard yearly rates of depreciation have been established for the types and categories of items that have generally recognized periods of useful life; standard flat rates of depreciation have been established for certain kinds of items that decrease in value primarily as the result of the fact they are no longer new and unused, but which do not continue to depreciate on a yearly basis since they are not subject to fixed periods of useful life. (See Allowance List--Depreciation Guide.) However, if personal inspection of damaged property indicates that it was in better than average condition prior to damage, a lesser rate of depreciation should be applied. Similarly, if the evidence indicates that an item was in poor condition at time of damage, a higher rate of depreciation is appropriate. Variations from the established rates of depreciation will be fully explained. The following rules are to be observed in computing the depreciation applicable to any item: (1) Normally no depreciation is to be charged against goods during periods of storage. However, this does not mean that deductions cannot be taken for other reasons, such as a reduction in the market value of an item because of changes in style or obsolescence. (2) Do not depreciate an item which is less than six months old (including an item subject to flat rate depreciation) except clothing and other rapidly depreciating articles which may be subject to considerable use in such a short period of time. Calculate yearly depreciation from the date an item is originally acquired to either the date of pickup (for shipment or storage claims), or to the date the property was lost or damaged (for other personnel claims). If the claimant acquired a used item, then the claimant should use either the date the original owner acquired the item and the original purchase price, or the claimant's purchase price and date he or she purchased the item. In accordance with the Allowance List--Depreciation Guide, compute yearly depreciation in 12 month increments (e.g., 6-17 months equals one year), excluding the month the property was acquired and the month that the property was picked up, lost or damaged. (3) No item will be depreciated by more than 75 percent. (4) No depreciation is charged against genuine antiques, objects of art, and collector's items, except for repair of portions thereof, such as upholstery, which requires periodic replacement or repair. For the purpose of this rule, a ``souvenir'' is not considered a collector's item. (e) Compensation normally allowed for an item damaged beyond economic repair is the actual value at the time of destruction. However, if an item has not been totally destroyed and any part remains useful and has a salvage value, and that part is to be retained by the claimant, the allowance will be the value at time of destruction less the ascertained value of the salvageable part. If the claimant does not wish to retain any salvageable part of a destroyed item, he or she may be allowed the full value at the time of the destruction with no deduction for salvage value, provided the claimant turns in the salvageable part to the Defense Reutilization and Marketing Office prior to payment of the claim or holds the item for turn-in to the carrier (see DA Pam 27-162, paragraph 2-44). If the item is turned in to the Defense Reutilization and Marketing Office, a receipt for the property, DD Form 1348-1 (DOD Single Line Item Release/Receipt Document), will be included in the file of the paid claim. If the staff or command JA determines that salvageable items are valued at $25.00 or less, he or she may advise the claimant to dispose of them other than by turn-in and this decision will be noted on the chronology sheet. In certain situations it may be necessary for the claims office to assist the claimant to arrange for disposition of the property. (f) If, after payment of a claim, an approving or settlement authority discovers that the payment was erroneous because the claimant misrepresented the quality, quantity, age, condition, or replacement or repair cost of items, or other facts necessary to the adjudication of the claim, the approval or settlement authority may recalculate the amount allowed and arrange for recoupment of the erroneous amount paid. However, this procedure should be used sparingly, with doubts resolved in favor of the claimant. The procedure is independent of any other action taken against the claimant. (g) In determining allowable amounts, cents will be rounded off to the nearest whole dollar on each line item. Drop amounts under 50 cents and increase amounts from 50 to 99 cents to the next dollar. Thus, $1.49 becomes $1.00 and $2.50 becomes $3.00. Sec. 536.175 Cognizable incidental expenses. (a) Expenses incident to repair or replacement. In addition to actual value, the cost of obtaining estimates of repair necessary to substantiate amounts claimed for damaged property may be considered, provided the action of the claimant in contracting for the estimates appears reasonable under the circumstances or was specifically directed by the approval or settlement authority. However, when the cost of an estimate can be applied toward the bill due upon completion of repairs, the cost of the estimate will not be allowed, whether or not the claimant chooses to have the repair done. (b) Replacement of certain documents. The fee charged for replacing certain necessary documents such as marriage licenses, driver's licenses, passports, or birth certificates may be allowed when these documents are lost or destroyed. (c) Sales tax and drayage. Sales tax and drayage (including postage or handling charges to mail an item or replacement part) can be allowed up to $50 per claim prior to the actual cost being incurred. However, payment in excess of $50 will require the claimant to substantiate that the cost has been incurred. Sec. 536.176 Property recovered. (a) Before approval. Do not pay claims for missing property if the missing property is located before the claim is approved. Only the transit related damage will be cognizable. As an exception to this rule, compensation may be allowed for necessary items that were missing for an unreasonable time after the expected arrival date and were replaced by claimant prior to the items being located. Necessary items are those that are basic to the operation of a household. If compensation is allowed under the above exception, the claimant will disclaim in writing further interest and ownership in such items in accordance with paragraph (b)(2) of this section. (b) After approval. If missing property is located after the claim is approved for payment, the claimant will normally be advised of his or her option to-- (1) Accept any or all of the items located and remit the amount already allowed for such items to the United States. In certain circumstances, the claimant will not have an option: The Chief, Personnel Claims and Recovery Division, USARCS or his designee can require the claimant to accept any or all of the items and remit the amount allowed; or (2) Disclaim in writing further interest and ownership in the property and retain the amount approved for payment. If, however, the approval or settlement authority determines that any of the recovered property is substantially different in quality, price, or value from the property claimed, the approval or settlement authority may require the claimant to return the amount allowed for such property and accept the property. Sec. 536.177 Companion claims. When two or more claims arising from the same incident are, by reason of differences in amounts within the jurisdiction of different approval or settlement authorities, action will be withheld on these claims until the authority having jurisdiction over the largest claim has determined that the claims arising out of the incident are cognizable, unless the claims lesser in amount are clearly cognizable and meritorious. Sec. 536.178 Emergency partial payments. (a) Frequently a claimant is in immediate need of funds to replace damaged or destroyed property. An emergency partial payment up to $2,000 is authorized under the following circumstances: (1) A hardship situation exists that can be alleviated by providing immediate funds for the repair or replacement of certain property lost or damaged; and (2) A claim has been presented. (3) The approval or settlement authority determines that the claim is clearly payable under this chapter, in an amount exceeding the amount of the proposed emergency payment. (b) The approval or settlement authority can approve an emergency partial payment on any claim that meets the above criteria. If the adjudicated amount exceeds the approval or settlement authority's delegated monetary amount, pay up to the delegated amount (less the emergency payment), mark the outside of the file ``PRIORITY'' and transfer it with all documentation (to include computer disk, paper screen and memorandum of opinion) to the next higher claims authority for additional payment. (c) Prior to making any emergency payment, the authority approving such payment normally will obtain an executed partial acceptance agreement from the claimant or his or her representative. Only the Chief, Personnel Claims and Recovery Division, USARCS or his designee can authorize emergency partial payments above $2,000. The authority requesting an emergency partial payment above $2,000 can coordinate telephonically with USARCS. Sec. 536.179 Personnel claims memorandum. (a) A personnel claims memorandum of opinion will be included in the file of each personnel claim disapproved; forwarded for adjudication, disapproval, or reconsideration; or forwarded with a recommendation that there be a deviation from the Allowance List or other established policy. (b) A personnel claims memorandum of opinion will be signed by the Claims JA. It will be routed through any intervening settlement authority, addressed to the settlement authority who will take final action (for example, a disapproval would be addressed to the SJA of an area claims office, and a reconsideration would be addressed to the Commander, USARCS). The memorandum will be sufficiently detailed to explain fully and support the action taken or recommended. (See DA Pam 27-162, paragraph 2-551 for further instructions.) It will be arranged as follows: (1) Claimant's name and address. (2) Date and place the incident occurred giving rise to the claim. (3) Amount of claim, the date it was filed, and the date reconsideration was requested. (4) Subparts the claims were considered under, and a brief description of the incident or of the issues raised by the claimant on reconsideration. (5) Facts. (6) Opinion. (7) Recommended action. Sec. 536.180 Reconsideration. A claim will be reconsidered under the conditions listed below. Reconsiderations normally require additional investigation and review. This additional information will be documented in the file. An approval or settlement authority-- (a) May always reconsider his or her action if the original action was in error or is incorrect based on new facts. This may be pursuant to either a claimant's oral request for reconsideration or as a result of any post-settlement review conducted on the claims file. Note that while the original approving or settlement authority may consider a claimant's ``oral'' request for reconsideration, claims personnel should advise claimants that a higher settlement authority will not act on an oral request until the claimant presents it in writing in accordance with paragraph (b) of this section. The basis for any change will be reflected in the file. (b) Must reconsider a claim upon the written request of the claimant or someone acting on his or her behalf. The claimant must clearly state the factual or legal basis for relief. However, the reconsideration process must be considered not as an adversarial process, but rather as an opportunity for the approval or settlement authority to continue a dialogue with the claimant. Every effort should be made to develop the claimant's version of the facts. A claim will be reconsidered even if a settlement agreement has been executed. (1) The original approval or settlement authority will modify the original action if he or she determines that the original action was incorrect or is incorrect based on new evidence. The basis for any change will clearly be reflected in the file. (2) A successor or higher approval or settlement authority will only modify the original action on the basis of fraud, substantial new evidence, mistake (misinterpretation) of law or regulation, or an error in calculation. The basis for any change will clearly be reflected in the file. (3) An approval or settlement authority can take final action on a request for reconsideration if he or she informs the claimant in writing that the claimant-- (i) Is aware of the right to have the file reviewed by USARCS; and (ii) Will accept the additional payment as full relief on the claim; and (iii) Knows that if the offer is not satisfactory, the check will still be issued (and can be cashed without prejudicing his or her right to reconsideration); and (iv) The file will be forwarded to USARCS for final review. (4) If the approval or settlement authority does not grant additional relief, or the claimant does not wish to accept an additional payment as full relief, or the claimant does not respond by the suspense date, the JA/claims attorney will issue any offered payment and will forward the claim through any intervening area claims office or command claims service to USARCS for final action. As an exception, the Commander U.S. Army Claims Service, Europe (USACSEUR), can take final action on any reconsideration request forwarded there by a subordinate office so long as it does not involve approving a waiver of a maximum allowance. The Commander, USACSEUR, will include a complete copy of the final action and will forward the file to the Commander, USARCS. (c) The approval or settlement authority should consider 60 days from the settlement date a reasonable time to either submit a written request for reconsideration or provide an intent to file a reconsideration request. The claimant will receive written notification of this time limit. Any reconsideration where denial is recommended because it was not timely filed will be forwarded according to paragraph (b)(4) of this section. The Chief, Personnel Claims and Recovery Division may grant relief on untimely requests for reconsideration on the basis of substantial new evidence, fraud, mistake of law, or mathematical miscalculation. In appropriate situations, he may deny relief if the filing delay precluded acquiring additional facts. Sec. 536.181 Judge advocate procedures responsibilities. (a) Reductions for inaction. (1) The JA will ensure that, when a demand on a carrier or other third party (other than a private insurer (see paragraph (a)(2) of this section) is required (see recovery from third party) and the claimant's failure, absent good cause, to provide notice or perform other required actions materially prejudices effective recovery action with respect to all or part of the loss, the amount otherwise allowable under this chapter will be reduced by the amount of the anticipated recovery so affected on an item-by-item basis. (2) When a claimant fails to provide timely notice to perfect a claim against his or her private insurer, the amount allowed, absent good cause. the claim will be denied. In determining whether a claimant has good cause for failing to provide timely notice to a private insurer, the JA will, in addition to the considerations in paragraph (a)(3) of this section, determine whether the claimant (or agent) had knowledge of the requirement and willfully neglected to provide notice. See Sec. 536.170(f) for cases where a claimant refuses to provide information concerning private insurance. (3) Good cause is determined as follows: (i) When a claimant fails to provide timely notice to a carrier, warehouse firm, or private insurer, settlement and approval authorities may waive reduction action for good cause only when one of the following circumstances directly contributed to the claimant's failure to give timely notice: (A) Officially recognized absence (for example TDY and off post training exercises) resulting in claimant's absence from official duty station for a significant portion of the notice period; (B) Hospitalization of claimant for a significant portion of the notice period; or (C) Substantiated misinformation concerning notice requirements given to the claimant by government personnel. (ii) Requests for good cause waivers under circumstances other than those in paragraph (a) of this section may be granted only by the Commander, USARCS, or designee. (4) Prior to taking reduction action, the JA will ensure the claimant is provided an opportunity to explain the circumstances of his or her failure to take appropriate action, and that the claim file is documented to show the claimant was afforded this opportunity and the result provided. The chronology sheet in the file will contain an explanation of the JA's decision regarding reduction or the lack thereof. (b) Information and assistance to claimants. Claims personnel will-- (1) Furnish the necessary claims forms (DD Form 1842 and DD Form 1844) to any individual who indicates, in person or by letter, that he or she desires to be compensated for loss or damage to personal property incident to service. (2) Furnish instructions and advice as to the evidence required to substantiate the claim, assist in the completion of claim forms, and help with the procurement of evidence in support of the loss and the amount claimed. (3) Assure that the description of the items and the damage shown on DD Form 1844 are sufficiently detailed to permit verification of the purchase price and replacement price or repair cost of the item claimed. (4) Inform a claimant of the time limits within which a claim must be filed in order to be considered. (5) Inform all claimants that they must file and settle with their private insurance companies before the JA/claims attorney will approve a claim for payment under this chapter. Claimants who state they have no insurance will be asked to certify that fact and the written statement will be included in the claim file. The claimant will be required to submit proof of final action by the insurer. Claims personnel will examine each claim after an insurance settlement and determine if prior settlement by the insurer (including excess valuation coverage) is more advantageous to the claimant. A claims JA/ attorney may decide to approve a claim for payment under this subpart without a claimant first settling with his or her insurance in exceptional cases where an insurance company improperly refuses to pay a claim or the JA determines the claimant has good cause (see Sec. 536.181(a) (2) and (3). (6) Advise a claimant to notify the JA of any offer of settlement or denial of liability by any third party, and to secure the JA's written consent before executing a release or acceptance of any such offer. (7) Take an active and continuing role in publicizing claims information to soldiers and their families. (c) Other actions. The JA will ensure that-- (1) DD Form 1840R is dispatched to the appropriate third party within 75 days of delivery of goods, that a copy of the DD Form 1840 and 1840R is dispatched to the destination transportation office, in appropriate cases, and that a signed and dated copy is maintained and incorporated into any claim filed. (See DA Pam 27-162, paragraph 2-55.) (2) The servicing transportation office is directed to inspect damaged property in appropriate cases. (See DA Pam 27-162, paragraph 2- 41.) (3) The DD Form 1844 is completed (amount allowed column, remarks column, and where appropriate, either or both columns for exceptions) prior to settling the claim. (4) All documents written in a foreign language are translated into English, either verbatim or in summarized form. (5) Unearned freight charges are deducted for property which carriers lose or irreparably damage. (See DA Pam 27-162, paragraph 3- 27.) (6) A claims office representative will periodically attend local transportation office outbound briefings to ensure that appropriate information is being disseminated to soldiers. (7) Inspections by claims office personnel are conducted in appropriate cases (large claim, reconsideration, fraudulent claim) and incorporated into the file. (d) Financial. The JA will properly manage claims funds. This includes-- (1) On a monthly basis, reconcile recovery accounts with the servicing finance and accounting office (FAO) to ensure moneys are being properly deposited into the correct account; (2) On a monthly basis, reconcile expenditure accounts with the servicing FAO to ensure that FAO expenditures match claims office expenditures; and (3) Ensuring expenditures are from current fiscal year accounts. Sec. 536.182 Finality of settlement. Except as provided in Sec. 536.180(b), the settlement of a claim is final and conclusive for all purposes (31 U.S.C. 3721(k)). Recovery From Third Party Sec. 536.183 Scope. (a) The Army Carrier Recovery Program involves the supervising and pursuing of administrative settlements of all claims in favor of the Government against third parties arising from claims settled under the preceding sections of this chapter. The Program includes making and issuing policies, procedures, and instructions pertaining to recovery action. (b) The term third parties as used in this section, refers to all types of contractors, carriers, and insurers of personal property. Sec. 536.184 Duties and responsibilities. (a) Field claims approval and settlement authorities are responsible for local implementation of the Army Carrier Recovery Program and will ensure that-- (1) Proper notice is provided to third parties (see DA Pam 27162, paragraph 2-55). (2) Claims are processed so that relevant time limitations on pursuing recovery demands are met, particularly the 6-year statute of limitations set forth in 28 U.S.C. 2415(a). In overseas areas, statute of limitations relevant to locally procured tenders and contracts will be observed. (3) Servicing transportation offices provide supporting documentation and perform necessary inspections in a timely manner. (4) Claims files include complete, legible documentation needed to support recovery action, including a copy of the itemized breakdown prepared by the claimant's insurer when appropriate. (5) Third party liability is correctly calculated in accordance with DA Pam 27-162, chapter 3, and is reflected on all copies of the DD Form 1844. (6) Written demands for reimbursement are prepared against appropriate third parties, and demands are dispatched locally or forwarded for centralized recovery within 30 days of settlement (see Sec. 536.196). If this 30-day standard is not met or no demand is prepared because liability will not be pursued, claims personnel will explain the basis for this on the claims chronology sheet. Note, however, that files will not be forwarded for centralized recovery prior to the 21st day after settlement in order to afford the claimant an opportunity to request reconsideration. (7) Unearned freight letters are prepared when required by DA Pam 27-162, paragraph 3-27, and are either included in files forwarded for centralized recovery or are dispatched locally after settlement with the carrier. (8) Settlement offers from third parties are accepted or rejected within 30 days of receipt. (9) Checks received are kept in a locked container in accordance with AR 37-103, and are hand-carried to the servicing finance and accounting office within 24 hours of acceptance. (10) Claims files for which a third party fails to satisfy its liability are forwarded to USARCS or to contracting officers for offset as appropriate (see DA Pam 27-162, paragraph 3-26). (11) Include demand packets for all claim files forwarded to USARCS due to incidents of bankruptcies. (b) The Commander, USARCS, is responsible for the general administration of the Army Carrier Recovery Program and for the Army Centralized Recovery Program. The Commander, USARCS, will ensure that field claims offices comply with paragraph (a) of this section, and will also ensure that-- (1) Demands for reimbursement received for centralized recovery are reviewed for correctness and dispatched within 7 days of receipt. (2) Within 30 days of receipt, checks matched to files are accepted and hand-carried to the servicing finance and accounting office (within 24 hours of acceptance) or are rejected and returned to the third party. (3) Checks which cannot be matched to files are recorded and kept in a locked cabinet in accordance with AR 37-103. (4) Unearned freight letters are dispatched after settlement with the carrier. (5) Offset action, or other collection action as appropriate, is initiated against any carrier or other third party that fails to satisfy its liability. (6) Field claims offices are promptly directed to forward files of bankrupt third parties to USARCS to protect the Government's interests. (7) Records are maintained of non-temporary storage contractors who default on their contractual obligations, and of incidents that occur in non-temporary storage warehouses, in order to pursue liability as appropriate. (c) The Chief, U.S. Army Claims Service, Europe, and the Chief, U.S. Armed Forces Claims Service, Korea, will-- (1) Assume the responsibilities outlined in paragraphs (b)(1) through (b)(5) of this section on claims forwarded for European or Korean centralized recovery (see DA Pam 27-162, paragraph 3-22), except that offset actions requiring action by DFAS will be forwarded to USARCS. (2) Review each POV shipment file forwarded for recovery action against the European inland carrier for potential liability within 45 days of receipt. If negotiations with a POV contractor result in an impasse, USACSEUR will arrange for dispatch of a contracting officer's final decision within 30 days. Sec. 536.185 Determination of liability. A prima facie case against a third party is established when evidence shows delivery of an item in good condition to the third party, return of the items in a damaged condition or non-return, and the amount of damage or loss. Sec. 536.186 Exclusions of liability. The third party is not always held responsible even though a prima facie case is established. The burden of proof will be on the third party to show that loss or damage was caused by one of the excepted conditions that relieves it of liability. The following exceptions emphasize or add to conditions stated in the various third party rate tenders: (a) Inherent vice of the article. To be used as an exclusion of liability, the third party must establish not just the general tendency of an item to be damaged in transit, but that the damage was due solely to that propensity. (b) Infestations by mollusks, arachnids, crustaceans, parasites, or other types of pests, fumigation, or decontamination when not the fault of the third party. (c) Pre-existing damage indicated on the inventory. (d) Mechanical failure of an appliance unless there is evidence of external damage or unless it can be clearly shown that the mechanical failure was caused by the third party. (e) Loss or damage that occurs while the shipment was in the custody and/or control of the Government. (f) Any item for which timely notice has not been provided to the third party. (g) Any loss or damage not presented to the third party within the 6-year statute of limitations for filing claims. Sec. 536.187 Limits of liability. (a) Carriers. (1) Liability of Through Government Bill of Lading (TGBL) or International Through Government Bill of Lading (ITGBL) carriers for household goods shipments is as stated on the GBL. The TGBL carrier may be liable for the full depreciated value of the claim or the current replacement cost of items, without application of depreciation, if the owner purchased replacement cost protection (RCP), also known as ``full replacement protection''. (See DA Pam 27-162, paragraph 2-51.) For the purpose of computing weight, each piece or package shipped constitutes one article. Any article taken apart or ``knocked down'' for handling constitutes one article. Individual article weights are listed in the Joint Military--Industry Table of Weights in DA Pam 27-162, Table G-1. (2) Liability of ITGBL carriers for hold baggage shipments (Codes 7, 8, and J) is normally 60 cents per pound times the gross weight per container (or current contract liability). Excess valuation or RCP is not available on such shipments. (See DA Pam 27-162, paragraph 3-11.) (3) Liability of domestic freight carriers of household goods shipments is generally stated to be 10 cents per pound per article on the GBL. Excess valuation or RCP is not available on such shipments. For the purpose of computing weight under this type of shipment, each packed item (such as a dish) constitutes one item or article. (Also see DA Pam 27-162, paragraph 3-15.) (4) Liability of commercial airlines is stated on the GBL. Excess valuation or RCP is not available on such shipments. (See DA Pam 27- 162, paragraph 3-17.) (b) Non-temporary storage (NTS) contractors. The contract for storage of household goods is the Basic Ordering Agreement, which is governed by DOD 4500.34-R, chapter 2-I. Under this agreement (DOD 4500.34-R, app H), an NTS contractor is liable for a maximum of $50.00 per inventory line item. (As an exception to this rule, regardless of the way a rank is listed on the inventory, only one charge of $50.00 can be applied when liability is calculated.) The contractor may be liable to the full extent of the declared value if the owner purchased an insurance policy from the warehouse firm. No liability can be pursued against the NTS contractor when goods are given out to a carrier unless an exception sheet was prepared by the carrier showing any differences as to shortages or overages or the condition of items.The exception sheet must be signed and dated by a representative of the warehouse to be valid. (c) Packing and containerization contractors. A local contractor is liable for loss or damage in the amount of 60 cents per pound (or current contract liability) times the weight per article as stated in the liability clause of the contract. Each shipping piece or package constitutes one article. Excess valuation or RCP is not available on such shipments. (d) Mobile home carriers. Liability is governed by the applicable rate tariff, rate tender, declared valuation, or personal property government bill of lading (PPGBL) as stated in DOD 4500.34-R, appendix E, and generally is the full cost of repairs for damage incurred during transit. In addition to the exclusions listed in paragraph 11-26, a mobile home carrier is excused from liability when the carrier has introduced substantial proof that a latent structural defect (one not detectable during the carrier's preliminary inspection) caused the loss or damage. (e) Liability limit. Except for claims involving mobile home carriers, excess valuation or RCP, the liability of any third party is limited to the least amount of the following: (1) Weight liability or NTS inventory line item maximum. (2) Amount paid by DA. (3) Depreciated value of an item (if the third party bases an offer of settlement on the Joint Military/Industry Depreciation Guide in DA Pam 27-162, app G, Table G-2.) Sec. 536.188 Settlement procedures in recovery actions. (a) Offers of settlement. An offer of settlement or tender of payment from a third party should be carefully examined giving due regard to all factors involved. When such consideration shows the offer or tender to be appropriate, it may be accepted. When the offer or tender does not appear appropriate, further correspondence should be initiated with the third party to clarify the issues. (b) Prior acceptance of settlement by owner. DA is not bound by the owner's acceptance of a settlement from a third party where the acceptance was procured through fraud, duress, collusion, mistake of fact, or misrepresentation. In such circumstances, when a claim is filed, all correspondence with the third party must be included in the file and further recovery action should be taken where the prior settlement is inadequate. (c) Establishment of timely notice. (1) Handled by one third party only. Where one third party had responsibility for the shipment from pickup to delivery, written exceptions on DD Form 1840 (Notice of Loss or Damage ) is evidence that items in the shipment were lost or damaged when delivered. However, a clear delivery receipt (DD Form 1840) is only prima facie evidence of a good delivery and may be rebutted by submission of DD Form 1840R, listing all later discovered loss or damage. The DD Form 1840R must be dispatched within 75 days of delivery; the date of dispatch is the controlling date. However, the normal 75-day limit for reporting additional damage on DD Form 1840R may be extended by the claimant's hospitalization or officially recognized absence under the Joint Military-Industry Agreement on Loss and Damage Rules (DA Pam 27-162, appendix E, sec II). Implementation dates for the use of this form and details regarding its use are found in DA Pam 27-162, paragraph 3-4. On claims for household goods delivered prior to these implementation dates, timely notice is established by exceptions noted at delivery on DD Form 619-1 (Statement of Accessorial Services Performed), or on the inventory if dated and signed by a representative of the third party. Timely notice also includes DD Form 1840, or a letter or other document noting loss or damage dispatched to the third party within 45 days of delivery. (2) Handled by two or more third parties. Each time custody of the property changes hands, the inventory will be annotated to show any overage, shortage, and damage found. In the case of pickup by a carrier from a NTS contractor, an exception sheet must be prepared and be acknowledged by the warehouse firm to reflect any changes in the condition of the goods. Sec. 536.189 Payment to the claimant beyond the statutory limit. When payment of the statutory limit is made on a claim determined to be meritorious in a greater amount after the application of individual and category maximum allowances, USARCS will apply amounts recovered from a carrier or contractor to compensate the claimant to the extent of the difference between the statutory limit and the amount that would have been paid but for the statutory limit. However, when an insurer has paid any portion of the value of the items involved, USARCS will apply the procedure in section Sec. 536.190(b). Any additional recovery monies available will be paid out under Sec. 536.190(b), if applicable. Sec. 536.190 Reimbursements to claimants and insurers from money received. USARCS is responsible for pursuing recovery on all claims paid under this subpart that involve payment of the statutory limit, increased released valuation purchased by the member, replacement cost protection, and/or private insurance. When forwarding these files to USARCS, the field office should identify them by writing in red on the front upper left corner of the file, ``IRV,'' ``RCP,'' or ``STATUTORY LIMIT.'' (a) Reimbursement to a claimant. Only USARCS may reimburse claimants on files which are required to be forwarded to USARCS for centralized recovery. In cases where a JA/claims attorney allowed payment of a claim before settling with private insurance, a command claims service, area claims office, or claims processing office with approval authority may always make a supplemental payment to a claimant when the claimant's private insurer paid more on an item than did the Government. If a claimant has not been fully compensated, he or she can receive a supplemental payment up to the adjudicated value of the claimant's loss under the following circumstances: (1) When the adjudicated value of the loss on an item exceeds an item or category maximum and the amount collected exceeds the amount paid on the claim, the claimant will be paid the adjudicated value to the extent that the amount recovered exceeds the amount paid. (2) When the adjudicated value of the loss on an item exceeds an item or category maximum and the claimant has purchased increased valuation protection or other depreciated value coverage, the claimant will be paid up to the amount of the additional coverage to the extent that this does not exceed the adjudicated value on that item or category. (3) When the value of the loss on an item exceeds DA's payment and the claimant has purchased RCP, the claimant will be paid up to the amount of the additional coverage to the extent that this does not exceed the value determined for that item. (b) Reimbursement to insurers by USARCS only. When a claimant has purchased an insurance policy covering the shipment or storage of property and the insurance company pays any portion of the value of items lost or damaged, the insurance company is entitled, to the extent of its payment, to reimbursement of a pro rata share of the amount recovered on such items. (c) Reimbursement of recovery money to a carrier, warehouse or contractor. If a claims office or contracting office determines that recovery or offset against a carrier, contractor or warehouse was improper, the claims office will forward a request (with appropriate justification) to the Chief, Personnel Claims and Recovery Division, USARCS, who will authorize a refund as necessary. Sec. 536.191 Recovery action against a claimant. A claimant is entitled to the benefit of any additional coverage purchased (such as private insurance, excess valuation, or RCP) on an item-by-item basis as described in DA Pam 27-162, paragraph 2-50. If a claimant is compensated by a third party on an item and is also compensated by DA pursuant to this subpart, the claimant is entitled to retain only the portion of the payment that represents the total adjudicated value of the item, without regard to a limitation on payment due to application of a maximum allowance. If a claimant is compensated twice and the total exceeds the amount the claimant is entitled to retain, prompt action to recover the excess will be taken in accordance with DA Pam 27-162, paragraph 2-55m. Sec. 536.192 Claims arising from packing and containerization contract shipments. Field claims offices will process to completion recovery actions on all packing and containerization contract shipments against the delivering contractor unless private insurance is involved. (See Sec. 536.190.) Sec. 536.193 Claims caused by stevedoring contractors. (a) The ``Liability and Insurance'' clause used in stevedoring and related services contracts provides in pertinent part that the contractor is liable to the Government for loss or damage to personal property (including POV's), caused in whole or in part, by his or her negligence or fault and that the amount determined by the contracting officer will be withheld from payments otherwise due the contractor. (b) Claims offices processing claims against the Government under this paragraph for loss, damage, or destruction of personal property of any kind (including POV's) caused in whole or in part by the negligence of a contractor will, when final recovery action is complete, forward the claim file directly to the Commander, USARCS. Claims offices processing a claim involving a POV will obtain an affirmative statement from the claimant as to whether settlement is also being processed directly with the contractor or has already been received from the contractor. Normally, a settlement with the contractor bars further claim against the Government. (But see Sec. 536.186(b).) The procedures for processing POV recovery actions against stevedores are in Sec. 536.195. Sec. 536.194 Claims arising from intra-theater shipments. Unless private insurance or payment of the statutory limit is involved (see Sec. 536.190)-- (a) Recovery action under a European intra-theater tender or a delivering direct procurement method contract will be assembled and forwarded to U.S. Army Claims Service, Europe, APO AE 09166-5346. (b) Recovery action under a Korean intra-theater tender or a delivering direct procurement method contract will be assembled and forwarded to U.S. Armed Forces Claims Service, Korea, APO SF 96301 AP 96205-0084. (c) Other recovery action against a delivering third party not involving shipment under a Through Government Bill of Lading will be processed by the field claims office to completion in accordance with DA Pam 27-162, chapter 3. Sec. 536.195 Claims against ocean carriers. No demand will be made directly on an ocean carrier operating under a Military Sealift Command contract by individual claimants or by field claims offices. (a) POVs--(1) Payment less than $100. A POV shipment file will be closed and no recovery action taken when the amount paid for the damage is less than $100. However any file involving loss of items from vehicles will continue to be processed regardless of the amount paid. (2) Payment from $100-1,999. For POV claims paid for any amount between $100 and $1,999, and if there is evidence of ocean carrier liability, the entire claim file will be forwarded to Military Sealift Command, Atlantic, by transmittal letter prepared in the format shown in DA Pam 27-162, figure 3-18. However, if there is evidence of liability attributable to the inland shipment of POVs in Europe, the entire claim file will instead be forwarded to the U.S. Army Claims Service, Europe, ATTN: AEUTN-PCR, APO AE 09166-5346. (3) Payment $2,000 or more--(i) Non-European claims offices. If the amount paid on a POV shipment claim is $2,000 or more, or if it appears that the POV was dropped or was mishandled severely in shipment, claims personnel will prioritize recovery action and handle the larger claims first. Claims personnel will-- (A) Assert a demand against the responsible contractor if an outport contractor, stevedore, or inland transporter damaged the vehicle; or (B) Forward the claim to USACSEUR for recovery if the damage occurred while the POV was in the custody of a European outport, stevedore, or inland shipment contractor; or (C) Close the file and forward it for retirement if the POV was damaged while in the custody of government personnel; or (D) Forward the claim to the Military Sealift Command if the damage occurred while the vehicle was in the custody of the ocean carrier (ship) or if claims personnel cannot determine where the damage occurred. (ii) European claims offices. If the amount paid on a POV shipment claim is $2,000 or more, claims personnel will prioritize assembly of the file and will forward it to USACSEUR for recovery action 21 days after the claim is paid. (b) Personal property other than vehicles (for example, household goods). After payment of a claim involving personal property other than POV's, the entire claim file will be forwarded, in duplicate, directly to the Commander, USARCS, for recovery action as appropriate. Sec. 536.196 Centralized recovery program procedures. After settlement of a claim under this chapter (including direct procurement method (DPM) or intra-theater shipments (only if private insurance is involved), and all mobile home claims), requiring centralized recovery processing as determined by the Commander, USARCS, the office paying the claim will forward the file to USARCS within 30 days. (See also Sec. 536.184(a)(6).) All such claims where recovery action is anticipated will include legible documentation and will be assembled as described below. (a) The following documents will be affixed to the left inside cover (opposite the side bearing complete name and file number of claimant) in descending order: (1) First. An unsealed envelope addressed to the appropriate third party along with the demand packet which should include the following documents: (i) Original DD Form 1843 (Demand on Carrier/Contractor). (See DA Pam 27-162, paragraph 3-20.) (ii) Copy of DD Form 1164 (Service Order for Personal Property) if applicable. (iii) Copy of DD Form 1844. (See DA Pam 27-162, paragraph 3-19.) (iv) Copy of DD Form 1841 (Government Inspection Report) if available. (v) Copies of all repair estimates. (vi) Copies of all other supporting documents deemed appropriate. (vii) Copy of DD Form 1840/1840R. (2) Second. If applicable, an unearned freight packet consisting of the original letter requesting deduction of unearned freight charges with a copy of the GBL, DD Form 1843, and DD Form 1844 attached thereto. (3) Third. Copy of DD Form 1843. (4) Fourth. If applicable, GBL and/or DD Form 1164. (5) Fifth. Documents of timely notice as described in section 536.188(c). (6) Sixth. DD Form 1844. (7) Seventh. If applicable, DD Form 1841. (8) Eighth. Repair estimates, paid bills, replacement costs, appraisals, and so forth. (9) Ninth. Any other documents appropriate to support the claim against the third party. (10) Tenth. Locally approved or adopted chronology sheets will be the last document attached to the left inside cover of the file. (b) The following documents will be affixed to the right inside cover in descending order: (1) First. All remaining copies of the DA Form 3 (Individual Claims Data Report) (except the organizational file copy retained by the forwarding claims office), or a print-out of the automated Individual Claims Report, as applicable. (2) Second. A copy of the letter to USAFAC requesting deduction of unearned freight charges, if applicable. (3) Third. Certified copy of the voucher from the servicing finance and accounting office, showing the amount paid the claimant. (4) Fourth. DD Form 1842. (5) Fifth. If applicable, paperwork regarding private insurance settlements. (6) Sixth. All inventories. (7) Seventh. All other documents, such as request for exception sheet, orders, turn-in slips, witness statements, and correspondence. (c) See DA Pam 27-162, paragraph 3-21, for further guidance. Sec. 536.197 Offset actions. (a) Offset actions against GBL carriers. Only USARCS may process offset actions against GBL carriers. (See DA Pam 27-162, paragraph 3- 26.) (b) Offset actions against NTS contractors. When an NTS contractor is liable and a satisfactory settlement cannot be reached, the claims office will forward the file to the Regional Storage Management Office (RSMO) responsible for administering the Basic Ordering Agreements for storage in that geographic area. (See DA Pam 27-162, paragraph 3-26.). (c) Offset against packing and containerization contractors. When any claims office determines that a packing and crating contractor is liable and a satisfactory settlement cannot be made, a copy of the complete claim file will be forwarded by letter to the local contracting office administering the contract, requesting offset action. The contracting officer will conduct a careful review of the claim file and will make a determination on the issue of contractual liability on the information contained in the file and on personal findings of fact in accordance with the contract involved. (Also see DA Pam 27-162, paragraph 3-26.) (d) Title 4 CFR 102.3(b)(2) affords a carrier or contractor certain procedural rights prior to offset. A JA/claims attorney will certify to the contracting office that the Army has complied with 4 CFR 102.3 if requested to do so. The JA/claims attorney will give the carrier/ contractor: (1) written notice of the nature and amount of the debt, and the agency's intention to collect by offset if the debt isn't paid. The DD Form 1843 or demand letter provides this notice. (2) the opportunity to inspect and copy agency records pertaining to the debt if requested. (3) the opportunity to obtain review within the agency if the carrier/contractor requests this. If requested, the JA/claims attorney will review the file prior to offset. No oral hearing is required. (4) the opportunity to enter into a written agreement with the agency to repay the debt. A carrier/contractor will normally be allowed 45 days to follow up a settlement offer with a check. If a satisfactory check is not received within the 45 days, the JA/claims attorney should offset the carrier/contractor without delay. (e) In accordance with 4 CFR 102.3(b)(5), the head of an area claims office or claims processing office may effect offset prior to completion of any or all of the procedures in paragraph d above if failure to promptly offset would substantially prejudice the Government's ability to collect the debt. Sec. 536.198 Compromise or termination of recovery actions. Subject to the limitations contained in this chapter, the Commander, USARCS, is delegated authority to compromise or determine collection action on claims against third parties in accordance with the provisions of 31 U.S.C. 3711. Sec. 536.199 Terms and abbreviations. Definitions of terms and a glossary of abbreviations frequently used in recovery actions are in DOD 4500.34-R, in the definitions section, beginning at page XXXIV. Sec. 536.200 Required references. Each claim office will maintain copies of the following references for recovery purposes: (a) DA Pam 27-162. (b) Personal Property Traffic Management Regulation (DOD 4500.34- R). (c) Domestic and mobile home personal property carrier approvals. (d) ITGBL personal property carrier approvals by area/code. (e) Local packing and containerization contracts. Subpart L--Nonappropriated Fund (NAF) Claims Claims Against NAF Activities Sec. 536.201 General. This subpart sets forth the procedures to be followed in the settlement and payment of claims by employees of nonappropriated fund activities for the loss of or damage to personal property incident to their employment, and for claims generated by the acts or omissions of the employees of such funds. Sec. 536.202 Claims by employees for losses incident to employment. Claims by employees for the loss of or damage to personal property incident to employment will be processed in the manner prescribed by subpart K and will be paid from nonappropriated funds in accordance with Sec. 536.207. Sec. 536.203 Claims generated by the acts or omissions of employees. (a) Processing. Claims arising out of acts or omissions of employees of nonappropriated fund activities will be processed and settled in the manner specified for similar claims against the United States except that payment will be made from nonappropriated funds in accordance with AR 215-1, and section Sec. 536.207. Relevant procedural requirements of pertinent subparts of this part, as stated below, will be followed except as provided in Secs. 536.206 and 536.207. However, when the NAFI is protected by a commercial insurer, for example, flying and parachute clubs, the claim will be referred to the insurer as outlined in paragraph (e) of this section. (1) Claims arising within the United States, its territories, commonwealths, or possessions. Such claims will be processed in the manner prescribed by subparts C, D or E as appropriate. (2) Claims arising outside the United States, its territories, commonwealths, or possessions. Such claims will be processed in accordance with the provisions of applicable SOFA or in the manner prescribed by subparts C, D or E as appropriate. (b) Reporting and investigation. Such claims will be investigated in accordance with subpart B of this part and AR 215-1. (1) Reporting. All incidents involving personal injury, death, or property damage resulting from falls, falling objects, or accidents of like nature, occurring in post exchanges, bowling lanes, officers and noncommissioned officers open messes, or other facilities located on land or situated in a building used by an activity of the DA that employs personnel compensated from nonappropriated funds, should be reported immediately to the officer in charge of the nonappropriated fund activity concerned. The report should be made by the employee who initially received notice of the incident, regardless of the fact that the individual involved denies sustaining personal injury or property damage. Upon receipt of the report of the incident, the officer in charge of the nonappropriated fund activity concerned will transmit the report to the installation or other appropriate claims officer for investigation. (2) Investigation. (i) As soon as practicable in the investigation of a claim generated by a nonappropriated fund activity, a determination will be made as to whether the claim is cognizable under this section. (ii) Claim files that relate to claims determined to be cognizable under this section will be marked with the symbol ``NAF'' immediately following the claimant's name to preclude erroneous payment from appropriated funds. This symbol will also be included in the subject line of all correspondence. (iii) Claims exceeding $15,000. When a claims approval or settlement authority receives a claim against a nonappropriated fund activity, other than the Army and Air Force Exchange Service (AAFES), that exceeds $15,000, he or she will forward a copy to both USARCS and the Army Central Insurance Fund, HQDA, ATTN: CFSC-RM-I, room 1240, 2461 Eisenhower Avenue, Alexandria, VA 22331-0508. A copy of all tort claims against AAFES will be forwarded to Headquarters, AAFES, ATTN: General Counsel, P.O. Box 660202, Dallas, TX 75266-0202. (iv) Customer complaints. Customer complaints other than at AAFES activities will be settled under the provisions of AR 215-1 rather than under the provisions of this section. AAFES generated complaints will be handled in accordance with Exchange Service Manual 57-2. (v) Commercial insurance. (A) Normally a claims investigation under subpart B will not be conducted but the claims officer will refer the claim to the insurer and furnish copies as indicated in paragraph (c) of this section. Assistance will be furnished to the insurer as needed. Copies of any other required investigations may be furnished to the insurer. (B) The status of the claim will be ascertained at key intervals to ensure that progress is being made, negotiations are proper, and to close the file. The Commander, USARCS will be advised of any problems. (C) If requested by either insurer or NAFI officials, the appropriate claims authority will assist in or conduct negotiations. (D) Where NAFI vehicles are required to be covered by insurance in foreign countries, the insurer will process the claim. However, if the insurer refuses to settle the claim in timely manner or is insolvent, the claim may be processed under subpart J procedures where applicable. Sec. 536.204 Persons generating liability. Claims resulting from the acts or omissions of the following classes of persons are cognizable under this section: (a) Civilian employees of nonappropriated fund activities whose salaries are paid from nonappropriated funds. (b) Active duty military personnel while performing off-duty part- time work and for which they are compensated from nonappropriated funds. (c) A claims approval or settlement authority will ask the Commander, USARCS for an advisory opinion prior to settling any claim where the person whose conduct generated the claim does not clearly fall within the above listed categories. Sec. 536.205 Claims payable from appropriated funds. Claims payable from appropriated funds will not be considered under this section or paid from nonappropriated funds. Such claims include those resulting from-- (a) Acts or omissions of military personnel while performing assigned military duties in connection with nonappropriated activities. (b) Acts or omissions of civilian employees paid from appropriated funds in connection with nonappropriated activities. (c) Negligent maintenance of a facility used by a nonappropriated fund activity but for which the command concerned is responsible. (d) Temporary use of a nonappropriated fund facility by an appropriated fund activity. (e) Operation of Government vehicles dispatched from motor pools on authorized missions for nonappropriated fund activities when the driver is a member or civilian employee of the DA. Sec. 536.206 Settlement. (a) Settlement. Claims cognizable under this section and processed under subparts C, D, E, J or K will be settled by claims authorities authorized to settle claims under those chapters subject to the same monetary limitations and limitations on denial authority, except that TJAG, TAJAG, and the Commander, USARCS, or designee, may settle such claims without regard to monetary limitations. (b) Finality of settlement. The determination of a claims settlement authority on a claim cognizable under this section is final and conclusive. However, a claim processed under subpart C may be appealed in accordance with Sec. 536.51(d), and claims processed under subparts D, E, J or K may be reconsidered in accordance with the paragraphs concerning reconsideration in those subparts. Sec. 536.207 Payment. (a) Transmission for payment. When a claim for loss of or damage to household goods or hold baggage shipped or stored by an AAFES or NAFI employee is considered under this section and determined to be meritorious in whole or in part, the approval or settlement authority will transmit the entire claims file to the appropriate disbursing office (see paragraph (b) of this section) for payment. When any other claim is considered under this section and determined to be meritorious in whole or in part, the approval or settlement authority will transmit to the appropriate disbursing office the original and one copy of-- (1) The claim form. (2) The action by the approval or settlement authority. (3) The settlement agreement, if required by subpart B. (b) Disbursing offices. Normally, claims settled under this section will be transmitted for payment as indicated below. (1) Claims over $2,500 generated by AAFES activities will be transmitted to Headquarters, Army and Air Force Exchange Service, ATTN: Comptroller Division, Insurance Branch, P.O. Box 660202, Dallas, TX 75266-0202. (2) Claims not over $2,500 generated by AAFES activities will be transmitted to the Army-Air Force Exchange Service, OSC-FA-CLAIMS, P.O. Box 650405, Dallas, TX 76265-0405. (3) Claims over $100 generated by other nonappropriated fund activities will be transmitted to The Army Central Insurance Fund, ATTN: CFSC-RM-I, Room 1240, 2461 Eisenhower Avenue, Alexandria, VA 22331-0508. When transmitting household goods or hold baggage shipment claims for payment, forward the entire claims file so ACIF can pursue carrier recovery. Use the ``NF'' claims database transaction code. (4) Claims not over $100 generated by other nonappropriated fund activities will be transmitted to that nonappropriated fund activity responsible for payment from its funds. (See AR 215-1, paragraph 13- 24a.) (c) Reimbursement to foreign countries. Reimbursement to a foreign country of the United States pro rata share of a claim paid under an international agreement will be made from nonappropriated funds. (d) Evidence of payment. When a claim settled under this section is transmitted to a disbursing office for payment, the approving or settlement authority will request the appropriate disbursing office to return evidence of the date and amount of payment. Claims Involving Persons Other Than NAF Employees Sec. 536.208 Claims arising from activities of nonappropriated fund contractors. These claims should be disposed of in a manner similar to that set forth in DA Pam 27-162, paragraphs 8-42, 8-43, and 8-47. Post exchange concessionaires are independent contractors and are required to obtain workmen's compensation coverage under local law for their employees and public liability insurance governing their operations. If a dispute arises as to whether such insurance is available or applicable, the claim should be forwarded to Headquarters, AAFES, ATTN: General Counsel, P.O. Box 660202, Dallas, TX 75266-0202, prior to processing under the preceding chapters. Sec. 536.209 Non-NAFI RIMP claims. The RIMP is administered by the U.S. Army Community and Family Support Center under the provisions of AR 215-1. Non-NAFI RIMP claims are not cognizable under any other provision of this regulation. However, except as otherwise provided in this section, Non-NAFI RIMP claims are subject to the same requirements that apply to other tort claims. USARCS carefully monitors all such claims to ensure proper investigation and resolution. Sec. 536.210 Claims cognizable. (a) Non-NAFI RIMP claims can arise from the activities of-- (1) Members of recreational NAFIs or authorized users of NAF recreational property, while using such property, except real property, in the manner and for the purposes authorized by DA regulations and the charter, constitution, and bylaws of the particular NAF activity. This category of persons generally has been limited to members and users of recreational facilities such as flying clubs organized as NAFIs and craft shops. This category does not include customers of exchanges, snack bars, motion picture theaters, or similar facilities. Whether a claim based on an act or omission of a member or authorized user of other types of NAF activities, such as officers' messes, would be cognizable under this paragraph depends on the facts and circumstances involved, including the degree of participation by the member or authorized user in the activities of the fund. Claims arising from the use of NAF property, as defined in this paragraph, are not cognizable under the FTCA or MCA, since the use of such recreational property is by individuals not considered to be employees of the Army or NAFI acting within the scope of their office or employment. (2) Family child care (FCC) providers, authorized members of the provider's household, and approved substitute providers while care under the FCC program is being provided in the manner prescribed in AR 608-10, except as excluded below. Such claims are generally limited to injuries to or death of children receiving care under the FCC program which are caused by the negligence of such individuals. Claims arising from the transportation of such children in motor vehicles and claims involving loss or damage of property are not cognizable. (b) Although Non-NAFI RIMP claims do not involve employees of the United States, a claim under this section that is listed in Sec. 536.51 of this part is not payable. For example, a soldier injured on a post golf course when hit by a golf cart operated by an authorized user is barred by the incident-to-service exclusion from recovering under this section. (c) A claims approval or settlement authority will ask the Commander, USARCS for an advisory opinion prior to settling any Non- NAFI RIMP claim where the person whose conduct generated liability does not clearly fall within the above listed categories. Such authorities may also ask, through the Commander, USARCS, for an advisory opinion from the U.S. Army Community and Family Support Center prior to settling any claim arising under paragraph (a)(2) of this section, where it is not clear that the injured or deceased child was receiving care within the scope of the FCC program. (d) The total payments for all claims (including derivative claims) arising as a result of injury to or death of any one person are limited to $500,000 for each incident. Continuous or repeated exposure to substantially the same or similar general harmful activity or conditions is treated as one incident for purposes of determining the limit of liability. Sec. 536.211 Procedures. (a) Reporting. All Non-NAFI RIMP claims (regardless of the amount claimed) and incidents that could give rise to Non-NAFI RIMP claims will be reported to USARCS and the ACIF immediately. (b) Investigation. Field claims offices are responsible for the investigation of Non-NAFI RIMP claims. Such investigations will be closely coordinated with program managers responsible for the activity generating the claim. Close coordination with USARCS is required, and USARCS will maintain mirror files of the investigation of all actual and potential claims. (c) Payment. Non-NAFI RIMP claims will be transmitted to The Army Central Insurance Fund, ATTN: CFSC-RMB-I, Room 1240, 2461 Eisenhower Avenue, Alexandria, VA 22331-0508 for payment. (d) Commercial insurance. The provisions of Sec. 536.203(e) (1) through (3) are also applicable to claims arising under this section, except that in claims involving FCC providers, a claims investigation will be conducted regardless of the presence of commercial insurance. Sec. 536.212 Delegation of authority. (a) Settlement authority. TJAG, TAJAG, and the Commander, USARCS, or designees, are authorized to settle or deny Non-NAFI RIMP claims regardless of the amount claimed. (b) Approval authority. (1) The SJA and, subject to limitations imposed by him or her, the chief of the command claims service of the commands listed below are delegated authority to approve, in full or in part, Non-NAFI RIMP claims presented in the amount of $25,000 or less, and to approve such claims regardless of the amount claimed provided an agreed settlement of $25,000 or less is accepted in full satisfaction of the claim, but only when the total value of all settlements, claims, and potential claims arising out of a single incident does not exceed $25,000. (i) USAREUR. (ii) Eighth U.S. Army, Korea. (iii) USARSO. (2) Area claims offices are delegated authority to approve, in full or in part, Non-NAFI RIMP claims presented in the amount of $15,000 or less, and to approve such claims regardless of the amount claimed provided an agreed settlement of $15,000 or less is accepted in full satisfaction of the claim, but only when the total value of all settlements, claims, and potential claims arising out of a single incident does not exceed $25,000. (3) The above authorities are not delegated authority to deny or make a final offer on claims under this section. Claims requiring such action will be forwarded to the Commander, USARCS, with an appropriate recommendation. (c) The decision of a settlement or approval authority on a Non- NAFI RIMP claim is final and conclusive and is not subject to reconsideration or appeal. Subpart M--Affirmative Claims General Sec. 536.213 Authority. (a) Federal statutory authority. (1) The Federal Claims Collection Act (31 U.S.C. 3711), as amended by the Debt Collection Act of 1982 and Public Law 101-552 (15 November 1990). The Federal Claims Collection Act states that Federal agencies will try to collect all claims of the United States for money or property. Among other things, it provides a basis for agencies to recover for damage to Government property. (2) Federal Medical Care Recovery Act (42 U.S.C. 2651-53) (hereinafter ``FMCRA''). The FMCRA provides for the recovery of the reasonable value of medical care furnished by the United States on account of injury or disease incurred under circumstances creating tort liability upon some third person. The FMCRA is implemented by Executive Order 11060 and 28 CFR part 43; the Federal Claims Collection Standards (DA Pam 27-162, appendix M) also apply, as appropriate. However, some procedures appropriate for liquidated debts may not be appropriate for unliquidated claims. (3) 10 U.S.C. 1095. 10 U.S.C. 1095 provides authority for military health care facilities to collect the reasonable cost of health care from health insurance and medicare supplemental policies. As amended by Public Law 101-510 (5 November 1990), this statute provides claims offices with additional authority to assert claims against automobile insurers for care provided in an MTF on or after that date. (b) Other authority. (1) State Workers' Compensation laws. (2) State hospital lien laws. (3) Contract rights under terms of insurance policies including medical payment coverage, uninsured and underinsured coverages, and no- fault. (4) State automobile no-fault laws. Sec. 536.214 Recovery judge advocate/attorney. (a) General. A JA or claims attorney (designated per Sec. 536.6) assigned responsibility for asserting affirmative claims may be designated as a recovery judge advocate (RJA) or recovery attorney, as appropriate. This designation may be in addition to or in lieu of designation as a claims JA or claims attorney, depending on the local command needs and available personnel. When assertion of affirmative claims is a full-time responsibility of an attorney or JA, the table of distribution and allowances (TDA) position title can also reflect the recovery function. (b) Designation. (1) The chief of a command claims service, an area claims office, or a claims processing office with approval authority may designate an RJA or recovery attorney for all or part of the area of responsibility assigned to the service or office. All designations will be in writing. A command claims service may withhold designation authority within its area of operations or place reasonable restrictions on such designation by subordinate offices through appropriate command directives. (2) The Commander, USARCS will designate RJAs and recovery attorneys for areas not within the responsibility of a command claims service or area claims office. Sec. 536.215 Purpose and policy. (a) This subpart prescribes procedures for the administrative determination, assertion, collection, settlement, and waiver of claims in favor of the United States for damage to, loss, or destruction of Army property, and for the recovery of the reasonable value of medical care furnished or to be furnished by the United States, under the statutes cited in Sec. 536.213. Sound governmental policy in the collection of claims of the United States for money or property requires aggressive agency collection action. Responsible officials within DA will ensure that personnel asserting claims are properly trained and supported to take timely and effective action. (b) The chapter does not apply to the following: (1) Claims between Federal agencies. If such a claim cannot be resolved by negotiation, it should be referred to GAO. (2) Maritime claims under subpart H. (3) Affirmative actions for nonmonetary relief (for example, evictions, specific performance, and injunctive relief). (4) Claims arising out of tax aspects of a contract, or other transaction or activity involving either nonappropriated or appropriated funds. (c) The senior Judge Advocate of a command having a command claims service, or the commander, USACSEUR, will prescribe procedures for implementing single service claims responsibility under DODD 5155.8 and for implementing any provision in a treaty or international agreement that limits or provides special methods for asserting claims in favor of the U.S. With the concurrence of the Commander, USARCS, the senior JA of a command having a command claims service, or the commander, USACSEUR, is authorized to modify the procedures in this chapter to accommodate special circumstances. The SJA will provide the Chief, Personnel Claims and Recovery Division, with a copy of all published guidance. Sec. 536.216 Delegation of authority. Claims offices may accept the full amount asserted on an affirmative claim. In addition-- (a) TJAG; TAJAG; the Commander, USARCS; and the Chief, Personnel Claims and Recovery Division, USARCS, may compromise or terminate collection action on a property damage claim asserted for $100,000 or less; and may compromise, waive or terminate collection action on a medical care claim asserted for $100,000 or less. (b) The senior JA of a command having a command claims service, or the commander, USACSEUR, may compromise, waive or terminate collection action on a medical care or property damage claim asserted for $100,000 or less. (c) Unless authority is withheld by the Commander, USARCS or the chief of a command claims service, the head of an area claims office may: (1) compromise up to $25,000 of the amount asserted on a property damage or medical care claim asserted for $40,000 or less (see Sec. 536.229(b)). (2) Terminate collection action on a property damage or medical care claim asserted for $25,000 or less when further collection efforts are not feasible (see paragraph 14-19c); or waive a medical care claim asserted for $25,000 or less when collection in any amount will result in undue hardship to the injured party (see Sec. 536.229(d)). (d) The head of an area claims office may delegate authority to a claims processing office to: (1) compromise up to $20,000 of the amount asserted on a property damage or medical care claim asserted for $40,000 or less (see Sec. 536.229(d)). (2) Terminate collection action on a property damage or medical care claim asserted for $20,000 or less when further collection efforts are not feasible (see paragraph 14-19c); or waive a medical care claim asserted for $20,000 or less when collection in any amount will result in undue hardship to the injured party (see Sec. 536.229(d)). (e) The head of an area claims office or a claims processing office, or the chief of a command claims service, may redelegate up to $20,000 of his or her authority to an RJA. (f) In determining whether a settlement authority has authority to compromise, terminate, or waive a claim, consider the medical costs for all parties injured in a single incident as a single assertion; and consider the total value of Government property damaged or destroyed in a single incident as a single assertion. (g) Only the Department of Justice (DOJ) may approve claims involving: (1) Compromise, termination, or waiver of a medical care or property damage claim asserted for more than $100,000. (2) Settlement actions previously referred to DOJ. (3) Settlement where a third party has filed suit against the United States or the injured party for the same incident which gave rise to the claim of the United States. (h) The commander, USARCS, or the Chief, Personnel Claims and Recovery Division, in consultation with the Department of Justice, will approve all claims involving unusual circumstances, a new point of law which may serve as a precedent, or a question of policy. Sec. 536.217 Basic considerations. (a) The Federal Claims Collection Standards. The Federal Claims Collection Standards (4 CFR parts 103 and 104, reprinted in DA Pam 27- 162, appendix M), prescribe standards for compromising and litigating property damage claims, and provide general guidance for compromising and litigating medical care claims. (b) Time limitations--(1) Property damage claims. Claims asserted under the Federal Claims Collection Act for damage to Government property are founded in tort and must be brought within three years after the action ``first accrues'' (28 U.S.C. 2415b). (2) Medical care claims asserted under the FMCRA or 10 U.S.C. 1095. Claims asserted under the FMCRA or against an automobile liability insurer under 10 U.S.C. 1095 are also founded in tort and must be brought within three years after the action ``first accrues'' (28 U.S.C. 2415b). Although no court has ruled on this issue, claims asserted under 10 U.S.C. 1095 against a no-fault or PIP insurer are presumably founded in a contract ``implied in law''; if so, they must be brought within six years (28 U.S.C. 2415a). (3) Computing the statute of limitations. Normally, a medical care claim ``first accrues'' on the initial date of treatment, and a property damage claim accrues on the date that the property was damaged. However, in computing the statute of limitations, 28 U.S.C. 2416(c) excludes the period of time before a U.S. official charged with the responsibility to act in the circumstances knows or should know that there is a basis for a claim. See United States v. Hunter, 645 F.Supp 758, 760 (N.D.N.Y. 1986). For example, the three year statute of limitations would not begin to run on most medical care claims paid by CHAMPUS at least until the date on which CHAMPUS received the bill from the provider. (4) Medical care claims asserted under state law. Claims asserted against an insurer on a third party beneficiary theory or against a state workers' compensation fund must be brought within the applicable state statute of limitations which can range from one to six years. Normally, the statute of limitations would begin to run when the injury occurred, rather than the date of initial treatment. (c) Applicable law. Federal law does not define what constitutes a tort. Unless the RJA can properly apply the law of another jurisdiction under conflict of law rules, the RJA will apply the law of the state or country where an incident occurred in determining whether the Government has a cause of action founded in tort. (d) Concurrent claims. (1) Claims for damage to Army property and claims for medical care arising from the same incident will be processed under the section applicable to each. However, efforts should be made to include all medical care and property damage claims in a single demand against a third party or insurance company. Settlement agreements will be drafted so that settlement and release of one claim shall not prejudice settlement of the remaining claim. (2) If the incident giving rise to a claim in favor of the United States also gives rise to a potential claim against the United States, the claim in favor of the Government will be asserted and processed only by a claims approval or settlement authority who has jurisdiction to take final action on the claim against the Government. Sec. 536.218 Claims against certain prospective defendants. (a) U.S. Government agencies. RJAs will not assert a claim against any department, agency or instrumentality of the United States. A self- insured NAFI, whether revenue producing, welfare or sundry, is considered an ``agency or instrumentality of the United States''; a private association is not. (b) Property damage assertions against soldiers and employees. The report of survey system (chapter 13, AR 735-5) is the primary mechanism for collecting from a civilian employee or a soldier (including an AR or NG soldier) for damage to government property. Report of survey procedures should normally be used whenever applicable. AR 735-5 requires claims offices to assert property damage claims against soldiers and employees in two instances: (1) Damage caused by POV's. Pursuant to paragraph 14-30, AR 735-5, if a report of survey approving authority assesses liability against a soldier or civilian employee for negligently damaging Government property using a POV, and the soldier or employee does not make restitution, the approving authority will forward the approved report of survey to the claims office. The RJA will assert a demand against the soldier or employee's liability insurance for the full value of the damage. If the soldier or employee does not have insurance, the RJA will return the action for the approving authority to withhold a month's pay from the soldier or employee. (2) Exhaustion of collection remedies. Pursuant to paragraph 14- 4b(7), AR 735-5, if an F&AO has exhausted all administrative mechanisms, including IRS offset, for collecting amounts assessed under a report of survey from a soldier, ROTC cadet or employee, the F&AO may refer the action to the servicing claims office for recovery action under the Federal Claims Collection Act. The RJA will assert such claims and initiate litigation if appropriate. (c) Medical care assertions against soldiers, employees, family members, and retirees--(1) Acting within scope of employment. The RJA will not assert a medical care claim against a tortfeasor who is a civilian employee or service member (including a reserve component member) acting within scope of employment, whether or not the employee or member has private insurance (cf. U.S. v. Gilman, 347 U.S. 507 (1954)). ``Scope of employment'' is determined by the laws of the state where the injury occurred. (2) Persons not in scope who injure themselves. An RJA will not assert a claim based on a tort liability theory against a tortfeasor who is a soldier, family member or retiree for the tortfeasor's own medical care; a person cannot create tort liability by injuring himself or herself. In such instances, however, the RJA may assert a claim under 10 U.S.C. 1095 against the injured tortfeasor's personal injury protection (PIP) or medical payments insurance coverage. (3) Persons not in scope with liability insurance. An RJA may assert a medical care claim against the liability insurer of a service member, civilian employee, family member or retiree who injures some other person entitled to medical care. Interfamilial tort immunity would not preclude the RJA from asserting a medical care claim based on a tort liability theory for care furnished to a tortfeasor's family members (see, e.g., U.S. v. Haynes, 445 F.2d 907 (5th Cir. 1971); U.S. v. Moore, 469 F.2d 788 (3rd Cir. 1972). (4) Persons not in scope with no insurance. An RJA may assert a medical care claim against a soldier, civilian employee, family member or retiree without insurance coverage with the approval of the Chief, Personnel Claims and Recovery Division, USARCS, or designee. Approval will be granted if there are aggravating circumstances, such as willful misconduct, and the tortfeasor has sufficient assets to satisfy both the injured victim and the Government's claim. (d) Government contractors. Some contracts have ``cost-plus'' or reimbursement provisions which require the government to reimburse the contractor for many types of expenses. If it appears that the contract would require the government to reimburse a contractor for money recovered on an otherwise meritorious affirmative claim, the RJA will investigate the claim and forward a recommendation to USARCS, referencing the specific contract clauses involved. The RJA will assert other claims against government contractors after verifying that the contract does not contain a reimbursement provision. (e) NG organizations and members. The RJA will investigate claims arising from the tortious conduct of NG members. The RJA will assert claims against NG members and their insurers in accordance with Sec. 536.218 (b) and (c). If the NG members were acting within the scope of employment as State employees and an assertion against the NG organization's insurer appears appropriate, the RJA will forward a recommendation to USARCS. Property Claims Sec. 536.219 General. (a) Other regulations establish systems of property accountability and responsibility; and provide for the administrative collection of charges from military and civilian personnel of the United States, and other individuals and legal entities from whom collection may be made without litigation. However, when the investigation results in a preliminary indication of pecuniary liability and no other method of collection is provided, the matter will be referred for action under this chapter. Assertions may be made under this section for the loss, damage, or destruction of-- (1) Property under DA control (AR 735-5). (2) Property of the Defense Supply Agency in DA custody. (3) Property of nonappropriated fund activities of the Army (except AAFES property unless a special agreement exists). (See AR 215-1 and AR 215-2.) (4) Federal property made available to the ARNG (AR 735-5). (b) This section does not apply to-- (1) Claims for damage to property funded by civil functions appropriations. (2) Reimbursements from agencies and instrumentalities of the United States for damage to property. (3) Collection for damage to property by offset against the pay of employees of the United States, or against amounts owed by the United States to common carriers, contractors, and states. (4) Claims by the United States against carriers, warehousemen, insurers, and other third parties for amounts paid in settlement of claims by members and employees of the Army or DOD for loss, damage, or destruction of personal property while in transit or storage at Government expense (chapter 11). Sec. 536.220 Repayment in kind. The RJA may accept the repair or replacement of the property in lieu of payment of the claim. The staff officer responsible for the property must certify accomplishment of the repair or replacement (such as is described for motor vehicles in AR 735-5) before a release may be executed. The authority conferred by this paragraph is not limited to incidents involving motor vehicles. Sec. 536.221 Property damage predemand procedures. (a) Identification of potential claims. The RJA will ensure that installation motor pools, housing and engineering staff sections, unit property custodians, and similar persons apprise the claims office of damage to DA property. In addition, claims personnel will review MP blotters and reports, civilian news sources, reports of survey, magistrate court proceedings, line of duty and AR 15-6 investigations, and similar reports to identify additional property damage cases. A claims office designated as the NG point of contact for a state will coordinate with NG officials to ensure that NG units appoint unit claims officers and report potential claims. (b) Transfer of responsibility. If another claims office is better situated to investigate and assert a property damage claim, the claims office will coordinate with that office. The Chief, Affirmative Claims Branch, USARCS, will resolve any disagreements. In addition, the office designated as the NG point of contact for a state will forward potential claims arising in another office's area of responsibility to that office. (c) Investigation. Claims personnel will investigate potential incidents, question witnesses to determine the facts and circumstances, and identify all available insurance coverage. Claims personnel may directly request assistance from other DOD claims offices. Claims personnel may also request an investigation of an incident by a unit claims officer for the unit or organization responsible for the damaged or destroyed property, or, when the investigation may be more practically conducted by the claims officer of some other unit or organization, by another unit claims officer. If no other report has been prepared, the unit claims officer will prepare DA Form 1208. Claims personnel will obtain a breakdown of costs from the custodian of the property. (d) Closing potential claims without assertion. If the RJA determines that there is no tort liability or that the potential recovery is too small to be worth pursuing, he or she will dispose of the notification without asserting a claim. If a potential claim file was opened, claims personnel will annotate the basis for closing the potential claim on the chronology sheet referencing the Federal Claims Collection Standards. (e) Asserting demands. If there is a legal and factual basis for the Government to recover, claims personnel should notify both the tortfeasor and the tortfeasor's insurer. The assertion letter should outline the facts and cite the Federal Claims Collection Act as the basis for recovery. The claims office may also cite local law. The claims office should assert the claim for the full costs to the Government, if known, or state that the costs are still being ascertained. Where appropriate, the assertion letter should also provide the option to repair the damaged property or to replace it in kind. Medical Care Claims Sec. 536.222 General. (a) Army claims offices assert claims against tortfeasors and insurers for medical and dental care which is furnished to a soldier, family member or retiree at Army expense to treat an injury or disease resulting from tortious conduct. In states that have modified traditional tort liability, Army claims offices also assert claims against insurers other than health benefits insurers, such as no-fault and medical payments automobile insurers, and workers' compensation funds. In doing so, claims offices coordinate their efforts with the injured party's efforts to recover other damages from tortfeasors and insurers. (b) Claims offices will forward potential claims for medical care furnished to service members, family members or retirees of Air Force, Navy, Marine Corps or Coast Guard to the nearest installation or office of that service. As an exception to this rule, however, claims offices may assert and collect claims for medical care provided to retirees of another service and their dependents if: (1) Medical care was furnished at the local Army MTF; and (2) the incident giving rise to the claim occurred near the Army installation; or (3) the retiree resides near the Army installation. In these exceptional situations, the claims office must ensure that the retiree is not receiving care at another service's MTF. The claims office must also notify USARCS as well as the nearest installation or office of the retiree's service that it is handling the claim. (c) In some instances, the Army and the VA will both pay for care provided to a soldier or retiree. The VA, however, is precluded from asserting claims for ``service-connected'' injuries. Accordingly: (1) If a soldier is injured and is discharged from the service, the claims office will assert claims for the reasonable value of medical care furnished at Army expense (including care furnished in a VA facility) prior to a soldier's discharge. Claims offices will not assert for the value of medical care furnished at VA expense, but the RJA will consider future care provided by VA in determining whether to approve a waiver or compromise. (2) If a retiree is injured and receives some care paid for by the Army and other care in a VA facility, the claims office will coordinate with the nearest VA office and assert a claim for the full value of the care provided. The office will remit the amount recovered for care provided at VA expense to the VA. Sec. 536.223 Recovery Rights under the FMCRA. Pursuant to the Federal Medical Care Recovery Act the Government may pursue recovery of medical costs under any of the following tactics: (a) Subrogation. The United States is subrogated to any rights or claims held by a person to whom the Government has provided medical care against the tortfeasor who caused him or her to be injured. As subrogee, the United States can recover from the wrongdoer the reasonable value of the medical care it has furnished or will furnish the injured party. (b) Intervention. The United States can intervene in an injured party's suit against a tortfeasor or bring suit as the assignee of an injured party's right of action. (c) Independent Action. The United States can assert administratively and litigate a medical care claim in its own name. (d) Item of Special Damages. The injured party's attorney can assert the Government's claim as an item of special damages in an injured party's suit against the tortfeasor. Sec. 536.224 Identification of potential medical care recovery claims. (a) By MTF personnel. (1) The MTF commander will ensure that the claims office is notified of instances where the MTF provides or is billed by a civilian facility for inpatient or outpatient care resulting from injuries such as broken bones or burns arising from automobile accidents, gas explosions, falls, civilian malpractice, and similar incidents which do not involve collections from a health benefits or medicare supplemental insurer. Claims personnel will coordinate with MTF personnel to ensure that inpatient and outpatient records, and emergency room and clinic logs are properly screened to identify potential cases. (2) The MTF commander will also ensure that the MTF does not release billings or medical records, or respond to requests for assistance with worker's compensation forms, without coordinating with the RJA. (b) By CHAMPUS fiscal intermediaries. The CHAMPUS fiscal intermediary is required to identify and to promptly mail claims involving certain diagnostic codes to the claims office designated as the state point of contact. The fiscal intermediary is required to provide the contact office with a personal injury questionnaire completed by the injured party and a copy of the CHAMPUS Explanation of Benefits showing the amount that CHAMPUS paid on the claim. (1) In accordance with chapter 5 of the CHAMPUS Fiscal Intermediary Operations Manual (September 1991), a fiscal intermediary must suspend payment on a claim with possible medical care recovery until the injured party properly completes the personal injury questionnaire. Within 15 working days after receiving and evaluating the completed questionnaire, the fiscal intermediary is required to dispatch possible medical care recovery cases to the appropriate claims office. The contact office must work with the fiscal intermediary to ensure that claims are properly identified and forwarded in a timely manner. The claims office should document persistent problems and notify USARCS. (2) Prior to settlement of a CHAMPUS claim, claims offices should recontact the fiscal intermediary to ensure that all amounts paid for by CHAMPUS are included in the Government's assertion. (c) By claims personnel. The RJA will ensure that MTF comptroller, clinic, and Patient Administration Division records are screened to identify potential medical care recovery cases. The RJA will also coordinate with Navy and Air Force claims offices and MTFs to ensure that they identify potential claims involving treatment provided to Army personnel. To the extent possible claims personnel will review civilian police reports, military police blotters and reports, news reports, magistrate court proceedings, line of duty and AR 15-6 investigations, and similar sources to identify other potential medical care recovery claims. Sec. 536.225 Medical care procedures following identification. (a) Opening potential claims. Unless it is obvious from the notification documents that there is no potential recovery, claims personnel will open a potential claims file on each incident identified. Until the Affirmative Claims Management Program is revised to include a ``potentials database,'' potential claims will be recorded in the Claims Journal (DD Form 1667). (b) Transfer of responsibility. (1) Several claims offices may be notified of incidents involving more than one injured party or treatment at more than one facility. If an RJA has reason to believe that this has occurred, the RJA will contact the other offices to determine which office has the most significant contacts and should assert the claim. The office closest to where the injury occurred is not necessarily the office with the most significant contacts. In the event that offices cannot agree, they will refer the matter to the Chief, Affirmative Claims Branch, USARCS for a decision. The claims office will notify the MTF if it transfers responsibility for a claim that the MTF referred. (2) The office designated as the CHAMPUS or NG point of contact for a state will forward potential claims arising in another office's area of responsibility to that office. (c) Investigation. If MTF personnel have not already collected the necessary information, claims personnel will dispatch questionnaires to injured parties to determine the facts and circumstances and identify all available insurance coverage. Claims personnel will obtain medical records and billings to determine the value of the Government's claim, and will contact witnesses and consult with medical personnel as appropriate. RJAs may direct unit claims officers to investigate incidents and may request assistance from other DOD claims offices as needed. (d) Closing potential claims without assertion. If the RJA determines that there is no tort liability or possible recovery from an insurer or workers' compensation fund, or that the potential recovery is too small to be worth pursuing, he or she will dispose of the notification without asserting a claim. If a potential claim file was opened, claims personnel will annotate the basis for closing the potential claim on the chronology sheet. If an MTF provided the notification, claims personnel will return the notification with a dated and signed notation, ``Per RJA, no third party recovery.'' (e) Asserting demands. If there is a legal and factual basis for the Government to recover, claims personnel will assert a demand against each tortfeasor and insurer. Claims personnel should place tortfeasors and insurers on written notice of the Government's right to recover even if the injured party's attorney enters into a representation agreement (see Sec. 536.226(b)). (1) Automobile case--tort liability. If care was wholly or partly provided in an MTF on or after 5 November 1990, the claims office will assert demands against the tortfeasor and his insurer citing both the FMCRA and 10 U.S.C. 1095. If care was provided in a civilian hospital or was provided before 5 November 1990, the office will only cite the FMCRA as a basis for recovery. (2) Automobile cases--no tort liability. If care was wholly or partly provided in an MTF on or after 5 November 1990, the claims office will assert demands against the injured party's Personal Injury Protection (PIP), medical payments, or no-fault insurance citing 10 U.S.C. 1095. If care was provided in a civilian hospital or was provided before 5 November 1990, the office will cite applicable state insurance law recognizing the United States as a third party beneficiary of an injured party's automobile insurance. (3) Automobile cases--multiple sources of recovery. If the claims office can recover from the tortfeasor's automobile liability and from the injured party's non-liability coverage, the claims office should put both insurers on notice of the claim and should first attempt to collect from the no-fault insurer. If the tortfeasor is an uninsured motorist and the injured party has uninsured/underinsured motorists' coverage, the claims office should attempt to recover from the injured party's insurer while following the procedures in Sec. 536.228(a). See Sec. 536.227(e) if the injured party has health benefits insurance. (4) Special rules applicable to CHAMPUS ``primary payers.'' Pursuant to 10 U.S.C. 1079(j)(1) and 1086(g), workers' compensation and the injured party's no-fault, PIP, medical payments, and uninsured/ underinsured motorist's coverage are considered ``primary'' to CHAMPUS. Before the fiscal intermediary pays the injured party's medical bills and notifies the claims office to assert a claim against the tortfeasor, the fiscal intermediary is required to verify that these ``primary payers'' have paid. (i) If the fiscal intermediary overlooks such coverage, the claims office will immediately assert a demand against the injured party's insurer (or the workers' compensation fund) citing 10 U.S.C. 1079(j)(1) in addition to other sources of authority. If the insurer has already disbursed the policy limits to the injured party, the claims office will request repayment from the injured party. The claims office will return money recovered in this manner to CHAMPUS (see Sec. 536.231(d)(3)). (ii) If the injured party or the injured party's insurer decline to pay and the claims office does not recover the full amount asserted from the tortfeasor's liability insurer, the claims office will forward the file to USARCS, which will refer the matter to the OCHAMPUS General Counsel. In this instance, the claims office will not waive or compromise any portion of the Government's claim because of undue hardship to the injured party without the approval of Chief, Personnel Claims and Recovery Division, USARCS. (5) On-the-job injuries. In states that recognize the United States as a beneficiary of state workers' compensation systems, the claims office will present a claim to the appropriate office. (6) Other injuries. Other instances giving rise to third party liability include gas explosions, malpractice by civilian physicians, slip-and-fall incidents, and products liability cases. Claims offices will assert demands against the tortfeasor and his insurer citing the FMCRA. (f) Determination of the amount asserted--(1) MTF costs. Recovery for MTF care is presently based upon multiple ``clinical group'' per diem inpatient rates and a single per visit outpatient rate established by the Office of Management and Budget (OMB). Claims personnel should obtain a billing from each MTF. The RJA should, however, obtain information from the MTF registrar and adjust the amount asserted if it appears that the billings include inpatient days where the injured party was retained in the MTF for administrative purposes rather than medical needs. (2) CHAMPUS costs. Recovery for inpatient care provided in civilian hospitals and paid through CHAMPUS is based upon the CHAMPUS ``Diagnosis Related Group'' (DRG) rates, regardless of the ``actual'' costs. Rates for outpatient care are based on the CHAMPUS ``allowable charge'' for that medical service. Claims offices should assert for the amount that CHAMPUS paid even though this can sometimes exceed the amount that the civilian hospital billed. (3) Ambulance services. Ambulance and air ambulance services provided to soldiers, family members and retirees are ``medical costs'' within the meaning of the FMCRA and 10 U.S.C. 1095, but they are not included in the OMB rates. Claims offices should try to obtain a specific breakdown of costs from the MTF or the unit providing the services and include these in the amount asserted. (4) Burial expenses. If a soldier dies from injuries received and is buried at Government expense, the installation Mortuary Affairs Office completes DD Form 2063 and itemizes expense data on this form. While burial expenses are not ``medical care'' within the meaning of the FMCRA or 10 U.S.C. 1095, many insurance policies provide for the payment of such expenses. Claims offices may assert a demand for burial expenses incurred by the Government if the insurance contract provides for payment of such expenses and state law recognizes the United States as a third party beneficiary of the contract. Claims personnel should, however, be extra sensitive to the possibility that the insurance proceeds might be inadequate and should consider waiving or compromising the Government's claim in appropriate cases to avoid undue hardship to the deceased injured party's next of kin. Sec. 536.226 Relations with the injured party. (a) Claims personnel will advise the injured party and/or his attorney that-- (1) The United States has a right to recover the reasonable value of medical care that has been furnished or will be furnished in the future. (2) The injured party is required to cooperate with the United States by providing a complete statement of the facts and circumstances surrounding the injury, information about any legal action brought against any prospective defendant, and information about and copies of any insurance policies. (3) The injured party should not execute a release or settle any claims without notifying the RJA. (4) The injured party may consult with a legal assistance attorney if he or she is otherwise entitled to legal assistance. (b) Claims personnel should attempt to coordinate action to collect the claim of the United States with the injured party's action to collect his or her own claim against a tortfeasor or insurer. (1) The RJA may enter into a written agreement with the injured party's attorney to assert the Government's claim and to include it as an item of special damages if the injured party sues. The agreement must state that the Government will not pay counsel fees, and that the attorney will not compute his fee based on the Government's portion of any recovery. The agreement must also state that the Government must be consulted regarding any potential compromise and must agree to any settlement. (2) The RJA should coordinate with the injured party's attorney to ensure that any request for compromise or waiver of the Government's claim is considered as far in advance of settlement as is practical. (3) The RJA may arrange to make local witnesses available for the injured party's attorney. With approval from USARCS, the RJA may arrange to make other Army witnesses available for the injured party's attorney if it is in the Government's best interests to do so. Any such request must be submitted as far in advance as practical. The appearance of present and former DA military and civilian personnel as witnesses is governed by AR 27-40, chapter 7. (4) The RJA should immediately terminate a representation agreement and independently pursue the Government's right to recover if the injured party's interests conflict with the Government's interests, or if the injured party's attorney fails to keep the RJA informed of developments or otherwise acts in a manner inconsistent with representing the Government's interest. (c) If the injured party or his attorney fails to cooperate with the claims office, the RJA is authorized to direct the MTF personnel to withhold billing information and should vigorously pursue the Government's right to recover. In addition, as outlined in 32 CFR 537.23, the RJA is authorized to direct the MTF to withhold release of medical records until the injured party provides the statement and other information required by Sec. 536.226(a)(2); the RJA may not, however, direct the MTF to withhold medical records if the injured party's attorney merely refuses to enter into a representation agreement. In appropriate cases, the claims office should intervene in pending litigation. (d) If the injured party's attorney improperly withholds or disburses money collected on behalf of the Government, the RJA should immediately initiate action to recover the money owed through litigation or through State disciplinary proceedings after appropriate coordination in accordance with AR 27-40 and AR 27-1. (e) Claims personnel may obtain an assignment from the injured party or his attorney for the reasonable value of the care that the United States provided if this will facilitate collection. The absence of an assignment does not affect the Government's independent right under the FMCRA, however, and an assignment is normally not necessary. Sec. 536.227 The MTF Third Party Recovery Program (TPCP). DOD Claims offices and MTFs manage complementary programs to recover for medical care furnished at DOD expense. Pursuant to a Memorandum of Agreement (MOA) between The Judge Advocate General and The Surgeon General and understandings with Navy and Air Force authorities, claims offices and MTFs support each other's recovery programs. (a) As provided in the MOA, claims offices will recover from automobile insurers, while MTFs will recover from health benefits and medicare supplemental insurance. (b) As provided in the MOA, MTFs will obtain insurance and other relevant information from persons receiving inpatient and outpatient treatment for injuries resulting from an accident. MTF personnel will also screen emergency room logs, clinic records, and patient admission information to identify accident cases. MTFs will refer these cases to claims offices in a timely manner, assist claims offices in obtaining medical records and cost computations, and route requests for medical records from injured parties and attorneys through the RJA. (c) In return, claims offices will notify the MTFs of the final disposition of cases referred, deposit money recovered under 10 U.S.C. 1095 to the operations and maintenance account of the MTF that provided the care (see Sec. 536.231(d)), and report the amounts deposited to an MTF's account on a monthly basis. (d) As provided in the MOA, the head of each claims office may enter into a local Memorandum of Agreement with his or her supporting Army MTF commander. Such agreements should cover procedures, the degree of staffing each office will provide, and time frames for providing records or information. Such agreements may also provide for the MTF to assist the claims office's medical care recovery effort, either by giving back money deposited by the claims office into the MTF's Operations & Maintenance fund to the claims office, or by providing personnel or other support. Any personnel provided or money returned to the claims office under such an agreement will only be used to support affirmative claims collection efforts. (e) If care was wholly or partly provided in an MTF on or after 5 November 1990 and recovery is possible from both a health benefits insurer and an automobile insurer, the MTF will first attempt to collect from the health insurer. If the MTF cannot recover the full value of the Government's claim from the health insurer, the MTF will forward the claim file to the installation claims office for collection from the automobile insurer. Recovering and Depositing on Claims Sec. 536.227 Post demand procedures. (a) Uninsured Motorists. If the tortfeasor is an uninsured motorist, affirmative claims personnel will assert a demand against the tortfeasor, and will request suspension of the tortfeasor's driving and registration privileges under a State financial responsibility law if the tortfeasor does not pay promptly. If collection from the tortfeasor is not feasible, claims personnel will pursue recovery from any State uninsured motorist's fund or, on a medical care claim, from the injured party's uninsured motorist's coverage. (b) Periodic review of pending claims. Whether or not the injured party's attorney has agreed to assert the Government's claim, claims personnel will review the status of pending claims every 60 days and take follow-up action as appropriate. Claims personnel should periodically contact the injured party's attorney to determine the status of pending cases, and should call or send follow-up letters to an insurer or tortfeasor who fails to respond to a demand or provides an unacceptable response. Follow-up action should be documented on the claims chronology sheet. (c) Adjusting the amount asserted. The RJA should adjust the amount asserted on a claim as further treatment is provided. The RJA should delay settlement if it appears that extensive treatment is necessary or should consider this in negotiating a settlement. (d) Forwarding claims to higher authorities. The RJA or head of a claims office will terminate action or will act on requests for waiver or offers to compromise that are within his or her settlement authority (see Sec. 536.216). If a higher settlement authority must act on the claim, the RJA will forward a completed worksheet to the area claims office (if that office has authority to take action) or to USARCS as appropriate. When time is of the essence in securing a settlement, an RJA may contact USARCS telephonically for authorization to waive or compromise a claim. Prior to the expiration of the statute of limitations, the RJA should contact USARCS for guidance on disposing of any claim which cannot be recovered in full, compromised, terminated or litigated. Sec. 536.229 Settling affirmative claims. Claims personnel will reflect the basis for any settlements other than payment in full in the claims file. Note that under some circumstances, settlement authority may not waive or compromise a claim that he or she would normally have authority to act on (see Sec. 536.216(g)). (a) Payment in full. A settlement authority may settle a medical care or property damage claim by recovering the full amount the Government's claim as a lump sum, through installment payments, or as a repair in kind on a property damage claim. An offer for the full amount of available insurance would not ``pay in full'' a claim asserted for a greater amount, and the RJA would have to follow compromise procedures. (b) Compromise. (1) If there are difficulties in recovering on a medical care or property damage claim (as defined by part 103 of the Federal Claims Collection Standards), a settlement authority may accept less than the amount asserted from a tortfeasor or insurer for the convenience of the government. Acceptable bases for compromise for the convenience of the government include inability of the tortfeasor to pay, insufficient insurance, probability that the government will be unable to prove its case, or collection costs which are not commensurate with the amount being compromised. (2) If the injured party or the injured party's attorney requests waiver or compromise of a medical care claim, a settlement authority may accept an amount less than the amount asserted to equitably apportion the available funds and avoid undue hardship to the injured party. To do so, the settlement authority must consider the fair value of the injured party's claim, the future value of care provided by the United States, and the potential recovery available. In evaluating a request, the settlement authority may consider an offer by the injured party's attorney to reduce his or her fee, but should not make this a condition for granting a request. Prior to approval of any compromise based on undue hardship, the injured party must provide the following information: (i) Detailed information on what funds are available for recovery. (ii) Reasonable value of the injured party's claim for permanent injury, pain and suffering, decreased earning power, and any other items of special damages. (iii) Military, VA, and Social Security disability, and any other Government benefits accruing to the injured party. (iv) Probability and amount of future medical expenses of the Government and the injured party. (v) Present and prospective assets, income, and obligations of the injured party and those dependent on him or her. (vi) A statement regarding the financial condition of the debtor. (c) Termination of collection action. If there are difficulties in recovering on a medical care or property damage claim (as defined by 4 CFR part 104.3 of the Federal Claims Collection Standards), a settlement authority may close the claim without recovery for the convenience of the Government. Acceptable bases for terminating collection action include lack of legal merit to the claim, lack of evidence to substantiate the claim, costs of recovery which will exceed the amount recoverable, or inability to locate the debtor in instances where the likelihood of collection is too remote to justify retention of the file. (d) Waiver. If the injured party or the injured party's attorney requests waiver or compromise of the government's claim, a settlement authority may close a medical care claim without recovery where collection of any part of the government's claim will result in undue hardship to the injured party. Prior to granting a request for waiver, the settlement authority will consider the factors outlined in Sec. 536.229(b)(2) and require the injured party to provide the items listed in Sec. 536.229(b)(2) (i) through (vii). Property damage claims cannot be ``waived.'' Sec. 536.230 Litigation. If a tortfeasor or insurer refuses to settle, or if an injured party's attorney improperly withholds funds, the RJA must consider litigation to protect the interests of the United States. Litigation is particularly appropriate if a particular insurer consistently refuses to settle claims, or if the Government's interests are not adequately represented on a large claim. (a) RJA's must maintain close contact with local U.S. Attorney's offices to ensure that these offices are willing to initiate litigation on cases. RJA's are encouraged to obtain appointments as Special Assistant U.S. Attorneys. (b) In order to directly initiate or intervene in litigation, an RJA must prepare a litigation report and formally refer the case through the Affirmative Claims Branch, USARCS and the Litigation Division, OTJAG (as required by AR 27-40, chapter 5) to the U.S. Attorney. While the RJA should attempt to initiate litigation well before the expiration of the statute of limitations, the RJA may contact USARCS telephonically if statute of limitations problems necessitate quick action on a case. The RJA should also contact USARCS if a U.S. Attorney is reluctant to pursue an important case. An injured party's attorney may represent the Government's interest in litigation without any special coordination. (c) The Department of Justice requires all cases involving damage to government property of $200,000 and under to go through the Department of Justice Central Intake Facility in Silver Spring, Maryland, before going to a United States attorney for litigation. Forward the agency referral package cover sheet and all documentation normally provided to the U.S. Attorney on all such cases to USARCS, which in turn will forward them to the Central Intake Facility through the Litigation Division, Office of the Judge Advocate General, as appropriate. Sec. 536.231 Administrative matters. (a) Receipts. The RJA may provide a receipt for payment. (b) Releases. The RJA may execute a release acknowledging that the Government has received payment in full of the amount asserted or compromise amount agreed upon, or the final installment payment; and should try to use a release similar to the release printed as Figure 9- 1, DA Pam 27-162. The RJA may not, however, execute any kind of indemnity agreement, nor may the RJA execute a release which prejudices the Government's right to recover on other claims arising out of the same incident without the approval of the Chief, Personnel Claims and Recovery Division, USARCS. In addition, the RJA may not execute a release that purports to release any claim that the injured party may have other than for medical care furnished or to be furnished by the United States. The RJA will not execute a release if the Government's claim is waived or terminated. (c) Depositing property damage recovery--(1) For damage to appropriated fund property. Monies recovered for damage to appropriated fund property will be deposited to Account 21R3019 (Recoveries for Government Property Lost or Damaged). (2) For damage to NAFI property. Monies recovered for damage to NAFI property will be returned to the NAFI. If the NAFI no longer exists, forward the money to HQDA (DAAG-NAF), Alexandria, VA 22331- 0321. Checks should be made out to the NAFI, or, if it no longer exists, to the Army Morale, Welfare, and Recreation Fund. (3) For damage to Army Stock Fund or Defense Business Operations Fund property. Monies recovered for damage to property belonging to one of these funds will be returned to that fund unless the fund has charged the cost of repair or replacement to an appropriated fund account. The Defense Business Operations Fund replaced the Army Industrial Fund. (d) Depositing medical care recovery--(1) To an MTF account. CONUS and OCONUS claims offices and command claims services will deposit money recovered from an automobile insurer for medical care provided in an MTF on or after 5 November 1990 in the Operations & Maintenance account of the Army, Navy or Air Force MTF that provided the care. Offices will deposit money recovered from all types of automobile insurance, including liability insurance, to MTF accounts. (2) To the General Treasury. Money recovered directly from tortfeasors, from workers' compensation funds, from insurance other than automobile insurance (such as homeowner's insurance), from automobile insurers for care provided in an MTF prior to 5 November 1990, or from automobile insurers for care provided in a civilian hospital will be deposited in the Miscellaneous Receipts Account, 21R3210. (3) Apportioning medical care recovery between accounts. Only money recovered under the provisions of 10 U.S.C. 1095 can be deposited into an MTF account. Claims offices will often have to apportion money recovered among different accounts. (i) Apportioning money between MTF accounts and the General Treasury. Deposit money recovered from an automobile insurer for care provided prior to 5 November 1990 or provided in a civilian hospital to the General Treasury. Deposit money recovered for care provided in an MTF after that date to the MTF's account. If the amount recovered is less than the amount asserted, deposit money to the MTF's account first, and deposit any remaining money to the General Treasury. (ii) Apportioning money between two or more MTF accounts. If care was provided by two or more MTF's on or after 5 November 1990 and the claims office recovers less than the amount asserted, the claims office should give each MTF a pro rata share of the money recovered. For example, if MTF1 provided $2,000 worth of care and MTF2 provided $1,000 worth of care, the claims office will deposit $800 of a $1,200 recovery to MTF1's account and the remaining $400 to MTF2's account. (e) Fiscal Integrity. Field claims offices must reconcile the property damage and medical care recovery accounts with their servicing finance and accounting offices. Field claims offices must ensure that their deposits have been credited to the proper accounts at least on a quarterly basis, and all accounts must be reconciled at the end of the fiscal year. Subpart N--Claims Office Administration Records and File Management Sec. 536.232 Records. Unless otherwise required by this part, claims JAs and claims attorneys charged with the responsibility for claims administration will maintain only such current and temporary records as are required for the administration of claims activities and for the preparation of prescribed reports. Basic records for each claims office are-- (a) DA Form 1667 (Claims Journal (Personnel) (Tort) (Affirmative) Claims). Journals will be individually maintained for personnel claims, for affirmative claims, and for tort and special claims, corresponding to the automated claims data management programs for such claims, using the April 1988 version of this form. Each event requiring entry in the journal will be recorded immediately upon receipt of information as to its occurrence. Use of the journal for personnel claims is optional, although modified use is highly recommended. (b) Automated claims data base. The automated claims data base will be used for all claims opened in fiscal year 1988 or later, and earlier year claims if they involve expenditures of funds in fiscal year 1988 or later, as follows: (1) Tort and Special Claims Management data base (all offices); (2) Personnel Claims Management data base (all offices except COE claims offices). (3) Affirmative Claims Management data base (all offices except COE claims offices). (c) Investigative files. A claims office will maintain separate investigative files on potentially compensable events (PCE) for every incident which it (or a unit claims officer) has investigated, or has received a copy of a report of incident or report of investigation from a unit claims officer or any other source. Similar files will be maintained for incidents investigated by a claims office or other Army official that might give rise to an affirmative claim in favor of the Army. The investigative file will be merged into a claims file when a claim is filed or asserted. Investigative files not otherwise merged into a claims file will be retained until transferred to another Army claims office or until the time for filing a claim has expired. Sec. 536.233 Arrangement of claims files. Instructions on the arrangement of claims files are found in Sec. 536.196 and in DA Pam 27-162. Every file for a claim against the United States must ultimately contain the following: (a) For files processed under the automated claims data management system, a printout (i.e., ``paper screen'') of the automated data pertaining to that claim. (b) If the claim has been paid in whole or in part, a copy of the settlement agreement, if any, and the certified copy of the paid voucher (comeback copy from the finance and disbursing office). (c) The action or recommendation. (d) The claim (initial and any amendment). (e) The report of claims officer, with exhibits. Sec. 536.234 Disposition of claims files. (a) The Commander, USARCS, is the proper authority for post settlement review of claims against the United States. Claims having the following file numbers under AR 25-400-2 will be forwarded to USARCS (subject to the provisions of b and c below) for disposition under that regulation: 27-20a, 27-20g, 27-20h, 27-20i, 27-20j, or 27- 20q. Claims having other 27-20 file numbers will be disposed locally according to the instructions in AR 25-400-2. (b) Files of completed tort claims will not be forwarded to the Commander, USARCS prior to the expiration of any appeal period or the 6-month period for filing suit, as applicable. The file of a tort claim in which an award that is final is not accepted by the claimant, within a reasonable time, will also be forwarded. (c) For personnel claims involving recovery action, claims files will be assembled and processed for local recovery action or forwarded for centralized recovery action in accordance with DA Pam 27-162, chapter 3, and Secs. 536.195 and 536.196. After completion of final recovery action by field claims offices or command claims services such files will be forwarded to USARCS for retirement. (d) Files will be administratively closed as abandoned or withdrawn and forwarded to the Commander, USARCS, as provided herein. (1) Personnel claims. Claims under subpart K will be administratively closed as abandoned in the following situations: (i) The claimant affirmatively withdraws or abandons the claim prior to adjudication. Such files will contain evidence of the claimant's intention to do so, such as a letter from the claimant or a memorandum of a telephone conversation with the claimant. (ii) The claimant cannot be located to be paid or, if the claim is not fully substantiated, to have his or her intentions with regard to the claim ascertained (but, see paragraph (d)(1)(iv) of this section). (iii) For other reasons, final action on the claim cannot be taken. (iv) When a claimant has neither affirmatively abandoned nor fully substantiated a claim cognizable under subpart K, he or she should be directed by certified mail to provide the required substantiation within a specified period, usually 30 days. If correspondence is returned as undeliverable, and the claimant is an active duty service member, a current military address can usually be obtained from the Commander, U.S. Army Enlisted Records and Evaluation Center, Army Worldwide Locator Service, ATTN: PCRE-RF, Fort Benjamin Harrison, IN 46249-5301. If the claimant fails to respond, to the extent that the claim is substantiated and meritorious it should be paid; otherwise, it should be disapproved. (2) Tort claims. Each file will contain evidence of claimant's intention to withdraw or abandon the claim, such as a letter or a memorandum for record of a telephone conversation with claimant. (i) Before apparently abandoned claims are forwarded to USARCS, a certified letter should be sent to the claimant requesting his/her intentions within a specified period, usually 30 days. If no reply is received within a reasonable time, usually 30 days, the files may be closed and forwarded to USARCS, except as follows: (ii) Tort claims under subparts D, E and F. Additionally, a paragraph of the letter should state that failure to respond will result in the presumption that the claim is abandoned. Further, it should be stated that if the claimant is dissatisfied with the action taken, the claimant may file suit in an appropriate United States District Court no later than six months from the date of mailing of the letter, or the claimant's remedy will be forever barred. (iii) In tort claims under subpart C, the last paragraph should advise the claimant that failure to respond will result in the presumption that the claim is abandoned, and that if the claimant is dissatisfied with the action taken, the claimant has a right to appeal the action for a review and final decision. Further, it should be stated that the claimant only has 60 days to submit such an appeal. (iv) Only after each of the above actions has been completed, may a tort claim be considered to be abandoned, and be forwarded to USARCS for retirement. If correspondence to a claimant is returned as undelivered, and the claimant is an active duty service member, a current military address can usually be obtained from the Commander, U.S. Army Enlisted Records and Evaluation Center, Army Worldwide Locator Service, ATTN: PCRE-RF, Fort Benjamin Harrison, IN 46249-5301. Sec. 536.235 Retrieval of claims files. (a) Field claims offices will occasionally have need of a file that has been sent to USARCS for centralized recovery or retirement (for example, action on a ``late'' reconsideration request). When requesting the return of a file from USARCS (either in writing or telephonically), the requesting office must provide-- (1) The claim number. (2) The claimant's name. (3) The date the file was forwarded to USARCS. (4) The name of the TGBL carrier (if the claim was a household goods or hold baggage shipment claim). (5) Whether the file was forwarded for retirement or centralized recovery. (6) The reason the file is being requested. (b) If USARCS has already acted on a request for reconsideration on a personnel claim, the file will not be returned to a field office for action on a second request for reconsideration. In such cases, the request will be sent to USARCS for action. Sec. 536.236 Certified and registered mail. Correspondence to claimants and/or their attorneys denying or making final offers in tort claims under subparts C, D, E, F, G, H, and L or the transmittal of an abandonment notice will be accomplished by certified or registered mail, return receipt requested. The return receipt (green card), upon its return to the claims office, will be retained as a part of the claims file as proof of receipt by the claimant or other addressee. Sec. 536.237 Maintenance of claims files. (a) The contents of each claim file for claims against the United States will be placed in a standard 9\1/4\ inch by 11\3/4\ inch manila folder . The name of the claimant, exactly as entered into the automated claims management data base, will be placed on the top-left portion of the file folder. The complete nine-digit computer-generated claim number displayed in the automated database will be placed on the extreme top right-hand side of the folder. The fiscal year, office code, and claim sequence number will be separated by a dash mark (example, ``88-011-0079''). Both name and claim file number entries on the manila file folder will be printed legibly in blue-black ink. The claim file should be stapled together before inserting in the file folder; however, the file need only be placed in the folder without stapling to the file folder. (b) Investigative files will also be maintained in manila folders. The date of the incident and general descriptive data (for example, ``1 Jul 86/ auto accident (1st and Elm, Smallville)'' or ``24 Sep 86/ heart operation (Jones, John M.)'') will be placed on the top-left portion of the file folder. (c) AR 25-400-2 requires labeling of file folders and containers with specific information. In complying therewith, the following guidance is provided: (1) Only the ``dummy'' or ``lead'' folder will contain the disposition instructions required by AR 25-400-2, for files that have a common disposition. (2) When labeling individual file folders, only the information required by AR 25-400-2 will be typed on the label. The label will be placed on the top center portion of the folder. Under no circumstances will the information concerning the claim (see paragraph (a) of this section) be placed on this label. Monthly Claims Reporting System Sec. 536.238 General. (a) The Personnel Claims Management Program, the Affirmative Claims Management Program, and the Tort and Special Claims Management Program are the automated programs which generate a monthly status report on claims against the United States and recovery actions. Specific instructions pertaining to the USARCS Claims Automation Program are contained in DA Pam 27-162, chapter 1 and in documentation provided with the automation software. (b) The data contained in the USARCS Claims Automation Program and the monthly claims office status reports generated by the automation software provide the data necessary to make sound management decisions by claims officers, by heads of area claims offices, by SJAs responsible for OCONUS command claims services, and by the Commander, USARCS. The system provides a uniform method of assignment of claim file numbers to permit identification and retrieval of individual claim files, identifies delay in claims processing, and permits worldwide management control of all claims against the Government. The automated monthly reports forwarded to USARCS provide the data base used for the preparation of claims budgetary status reports and periodic budget estimates to the USAFAC as well as to the Office of the Assistant Secretary of the Army (Financial Management). It is the responsibility of all claims office personnel to ensure that automated claims records are complete and accurate. (c) This section does not apply to the reporting of reimbursement obligations to foreign countries pursuant to the NATO-SOFA or other similar treaties or agreements. (d) The Commander, USARCS, will furnish software and documentation for the Personnel Claims Management Program, the Affirmative Claims Management Program, and the Tort and Special Claims Management Program, with updated versions as required. These are the only programs authorized for recording and reporting claims in the Army Claims System. Local modification of these programs is not authorized. Sec. 536.239 Reporting requirements. The head of each area claims office and command claims service will ensure that a monthly computer-generated claims report is prepared for each claims office with an office code within his or her area of responsibility and for each Foreign Claims Commission using the automation programs provided by USARCS. The report(s) (tort claims only) and diskettes containing current claims data base(s) (for all programs) will be posted to USARCS by the fifth calendar day of the month. In addition, a copy of any archive disk prepared during the reporting period will be forwarded for processing. Whenever possible, the data should be sent using a modem or other electronic data transfer system. Claims offices under the jurisdiction of a command claims service will forward their report(s) and diskettes through the command claims service and will comply with any additional reporting requirements of the command claims service. Diskettes must be marked with the office name, the office code, the type of claim record, the disk sequence number, the month and year, and the data base file name(s) contained in the diskette (for example, Fort Blank, 001, Tort Claims, 1 of 1, Mar 89, T9000103.1DB). Detailed instructions on the preparation of the monthly automated claims report and claims data diskettes are contained in DA Pam 27-162, chapter 12 and program documentation. If there are no changes from the previous month in the Affirmative Claims reports, the Personnel Claims report, or the Tort and Special Claims report, a negative report will be submitted within the stated time guidelines. Sec. 536.240 Error reports. USARCS will provide field claims offices with monthly error reports listing claims records that cannot be loaded into the USARCS data base due to data entry errors or omissions. Errors listed on the error reports must be corrected as soon as possible; resubmission of the corrected claims records will occur at the time of the next regular monthly reporting cycle. Sec. 536.241 Preparation. (a) Reporting. Quarterly, each command claims service or office authorized to assert affirmative claims will submit a copy of the ``Previous Three Months'' report generated by the Affirmative Claims Management Program to USARCS, ATTN: JACS-PCA. Command claims services and offices will identify these reports by quarter and fiscal year (i.e. ``1st Qtr, FY 93'') and forward them so that they arrive not later than the 7th calendar day of every quarter (i.e., 7 January, 7 April, 7 July, and 7 October each year). Offices authorized to assert affirmative claims which have no affirmative claims activity in a given quarter will forward negative reports. (b) Routing. Area claims offices and claims processing offices will forward these reports directly to USARCS through the senior Judge Advocate in the office, for example, the SJA. Claims processing offices will forward an additional copy to their area claims offices. (c) Special preparation instructions. Offices may manually correct any errors in the computer generated report using the following guidelines: (1) Claims first asserted in an indefinite amount will be reported in the period in which a reasonably accurate figure can first be determined. (2) When reporting the number of claims collected during the reporting period, only the first collection will be counted for claims in which payments are received in installments. (3) When reporting the total dollar amount collected during the reporting period, include any installments. The dollar value of any replacement or property repair should be included in the total with the replacement or repair value portion noted. Management of Claims Expenditure Allowance (CEA) Sec. 536.242 General. Each claims settlement or approval authority which is furnished a CEA by the USARCS budget office is responsible for managing that CEA. This includes knowing at all times how much of the CEA has been obligated, the remaining balance and a monthly assessment of whether the balance will cover claims obligation needs in the local office for the remainder of the current fiscal year. Sec. 536.243 CEA reporting requirement. (a) Each CONUS claims office having a CEA and command claims services will submit, to arrive not later than the 7th calendar day of every month, a report to USARCS, ATTN: JACS-BI, that includes the following: (1) The office code of the reporting office. (2) Dollars obligated for personnel and tort claims during the prior month and the number of personnel and tort claims paid. (3) Dollars obligated for personnel and tort claims fiscal year to date (through the end of the prior month) and the total number of personnel and tort claims paid fiscal year to date. (4) Dollars deposited during the prior month. Note: Ensure that the report of dollars deposited for the month and year to date includes only funds deposited in one of the claims appropriation accounts. Do not include money recovered through the affirmative claims program and deposited with miscellaneous receipts of the U.S. Treasury. (5) Dollars deposited year to date through prior month. (See note at paragraph (a) (4) of this section.) (b) The report submitted at the beginning of August every year will also include the following: (1) The total CEA furnished to that office up to that time (initial CEA plus or minus any changes). (2) The CEA balance. (3) The amount the office expects to be able to obligate in the remaining 2 months of the fiscal year if sufficient funds are available. (4) The expected surplus or shortfall. (5) A proposed CEA for the next fiscal year and the rationale for any unusual increases. (c) Reports may be submitted telephonically or by facsimile. Sec. 536.244 Solatia payment. Payment of solatia in accordance with local custom as an expression of sympathy toward a victim or his or her family is common in overseas commands (see DA Pam 27-162, chap 8). Such payments are not to be made from the claims CEA. These payments are made from local operation and maintenance funds pursuant to directives established by the appropriate commander for the country concerned. This applies even where a command claims service is directed to administer the command's solatia program. Appendix A to Part 536--References Publications and forms referenced in this appendix may be obtained from the National Technical Information Services, U.S. Department of Commerce, 5285 Port Royal Road, Springfield, VA 22161. Required Publications A required publication is a publication that the reader must have to understand the subject. AR 15-6 Procedures for Investigating Officers and Boards of Officers. AR 27-40 Litigation. DA Pam 27-162 Claims. DOD 4500.34-R Personal Property Traffic Management Regulation. Related Publications A related publication is merely a source of additional information. The user does not have to read it to understand this regulation. AFARS Army Federal Acquisition Regulation Supplement AR 1-75 Administrative and Logistical Support of Oversea Security Assistance Organizations AR 10-72 Field Operating Agencies of the Judge Advocate General AR 25-400-2 The Modern Army Recordkeeping System (MARKS) AR 27-3 Legal Assistance AR 27-60 Patents, Inventions, and Copyrights AR 37-100 Account/Code Structure AR 37-103 Disbursing Operations for Finance and Accounting Offices AR 37-104-3 Military Pay and Allowances Procedures: Joint Uniform Military Pay System Army (JUMP-ARMY) AR 37-104-10 Military Pay and Allowance Procedures for Reserve Components of the Army AR 37-107 Accounts Payable AR 37-108 General Accounting and Reporting for Finance and Accounting Offices AR 40-1 Composition, Mission, and Functions of the Army Medical Department AR 40-3 Medical, Dental, and Veterinary Care AR 40-16 Special Notification--Injury Cases AR 40-66 Medical Record and Quality Assurance Administration AR 40-121 Uniformed Services Health Benefits Program AR 55-19 Marine Casualties AR 55-80 Highways for National Defense AR 60-20 Army and Air Force Exchange Service (AAFES) Operating Policies AR 190-9 Military Absentee and Deserter Apprehension Program AR 190-22 Searches, Seizures and Disposition of Property AR 215-1 Administration of Army Morale, Welfare, and Recreation Activities and Nonappropriated Fund Instrumentalities AR 215-2 The Management and Operation of Army Morale, Welfare, and Recreation Activities and Nonappropriated Fund Instrumentalities AR 335-15 Management Information Control System AR 340-17 Release of Information and Records from Army Files AR 340-21 The Army Privacy Program AR 405-15 Real Estate Claims Founded Upon Contract AR 600-8-1 Army Casualty and Memorial Affairs and Line of Duty Investigations AR 608-10 Child Development Services AR 735-5 Basic Policies and Procedures for Property Accounting DODD 5220.6 Defense Industrial Personnel Security Clearance Review Program DODD 5515.3 Settlement of Claims Under 10 U.S.C. 2733 and 2743, as amended DODD 5515.8 Single Service Assignment of Responsibility for Processing of Claims DODD 5515.10 Settlement and Payment of Claims Under the Military Personnel and Civilian Employee Claims Act of 1964. DODD 6000.6 Medical Malpractice Claims Against Military and Civilian Personnel of the Armed Forces DODD 7045.13 DOD Credit Management and Debt Collection Program DOD Manual 4525.6-M DOD Postal Manual FAR Federal Acquisition Regulation JTR Joint Travel Regulations Prescribed Forms DA Form 1208 Report Of Claims Officer. DA Form 1666 Claims Settlement Agreement. DA Form 1667 Claims Journal for (Personnel) (Tort) (Affirmative) Claims. DA Form 1668 Small Claims Certificate. DA Form 2938-R Affirmative Claims Report. DD Form 1840 Notice of Loss or Damage. DD Form 1840R Notice of Loss or Damage. DD Form 1841 Government Inspection Report. DD Form 1842 Claim for Loss of or Damage to Personal Property Incident to Service. DD Form 1843 Demand on Carrier/Contractor. DD Form 1844 List of Property and Claims Analysis Chart. DD Form 2526 Case Abstract for Malpractice Claims. Standard Form 95 Claims for Damage, Injury or Death. Standard Form 1034 Public Voucher for Purchases and Services Other Than Personal. Standard Form 1145 Voucher for Payment Under Federal Tort Claims Act. Referenced Forms DA Form 1863-1 Services and/or Supplies Provided by Civilian Hospitals DA Form 2135-R Receipt for Payment (LRA) DA Form 2631-R Medical Care-Third Party Liability Notification (LRA) DA Form 2985 Admission and Coding Information DA Form 3154 MSA Invoice and Receipt DD Form 619-1 Statement of Accessorial Services Performed DD Form 1164 Service Order for Personal Property DD Form 1348-1 DOD Single Line Item Release/Receipt Document Standard Form 1049 Public Voucher for Refunds Appendix B to Part 536--Glossary Abbreviations AAFES Army-Air Force Exchange Service ADP Automated data processing AFARS Army Federal Acquisition Regulation Supplement ALR American Law Reports ARNG Army National Guard AWOL Absent without leave CHAMPUS Civilian Health and Medical Program of the Uniform Services CMCHS Civilian-Military Contingency Hospital System COE Chief of Engineers CONUS Continental United States DA Department of Army DOD Department of Defense FAR Federal Acquisition Regulation FCA Foreign Claims Act FCC Family child care FECA Federal Employees Compensation Act FTCA Federal Tort Claims Act GAO Government Accounting Office GBL Government bill of lading GSA General Services Administration ITGBL International through Government bill of lading JA Judge advocate JTR Joint Travel Regulations MAAG Military Assistance and Advisory Group MACOM Major Army command MCA Military Claims Act NATO North Atlantic Treaty Organization NG National Guard NGB National Guard Bureau NGCA National Guard Claims Act NTS Nontemporary storage POV Privately owned vehicle PPGBL Personal property Government bill of lading RCP Replacement cost protection RIMP Risk management program RJA Recovery judge advocate ROTC Reserve Officers' Training Corps SJA Staff judge advocate SOFA Status of Forces Agreement SPCMCA Special court-martial convening authority TAJAG The Assistant Judge Advocate General TDA Table of distribution and allowances TDY Temporary duty TGBL Through Government bill of lading TJAG The Judge Advocate General UCMJ Uniform Code of Military Justice USAFAC U.S. Army Finance and Accounting Center USAR U.S. Army Reserve USARCS U.S. Army Claims Service USAREUR U.S. Army, Europe USARSO U.S. Army South VA Department of Veterans Affairs WESTCOM U.S. Army Western Command Terms Affirmative Claims The Government's statutory right to recover money, property, or repayment in kind incurred as a result of property loss, damage, or destruction by any individual, partnership, association, or other legal entity, foreign or domestic, except an instrumentality of the United States. Also, the Government's statutory right to recover the reasonable medical costs expended for hospital, medical, surgical, or dental care and treatment (including prostheses and medical appliances) incurred under circumstances creating tort liability upon some third person. Civilian Employee A person whose activities the Government has the right to direct and control, not only as to the result to be accomplished but also as the means used. This includes, but is not limited to, full-time Federal civilian officers and employees. This term should be distinguished from ``independent contractor'' for whose actions the Government generally is not liable. The decision as to who is a civilian employee is a Federal question determined under Federal, not under local law. Claim A demand for payment of a specified sum of money (other than the ordinary obligations incurred for services, supplies, or equipment) and, unless otherwise specified in this regulation, in writing and signed by the claimant or a properly designated representative. Claim File A file containing the report of the claims officer or other report of investigation, supporting documentations, and pertinent correspondence. Claim Approval Authority Except for claims under chapter 7, 9, and 11 and subject to any limitations found in specific provisions of this regulation, the authority to approve and pay a claim in the amount presented or in a lesser amount upon the execution of a settlement agreement by the claimant. Under chapter 11, the authority of a designated Government agent to adjudicate and pay a claim in a meritorious amount within the monetary limits prescribed in that chapter. A person with approval authority may not disapprove a claim in its entirety or to make a final offer subject to any limitations found in specific provisions of this regulation. Claim Settlement Authority The authority to approve a claim, deny a claim in its entirety, or make a final offer subject to any limitations found in specific provisions of this regulation. Claims Attorney A DA or DOD civilian attorney assigned to a judge advocate or legal office who has been designated by the Commander, U.S. Army. Claims Service Claims Judge Advocate An officer of the Judge Advocate General's Corp designated by a command or staff judge advocate to be in immediate charge of claims activities of the command. Claims Officer A commissioned officer, warrant officer, or qualified civilian employee detailed by the commander of an installation or unit who is trained or experienced in the investigation of claims. Claimant An individual, partnership, association, corporation, country, state, territory, or other political subdivision of such country. It does not include the U.S. Government or any of its instrumentalities, except as prescribed by statute. Indian tribes are not proper party claimants but individual Indians can be claimants. Combat Activities Activities resulting directly or indirectly from action by the enemy, or by the U.S. Armed Forces engaged in, or in immediate preparation for, impending armed conflict. Disaster A sudden and extraordinary calamity occasioned by activities of the Army, other than combat, resulting in extensive civilian property damage or personal injuries and creating a large number of potential claims. Federal Agency A Federal agency includes executive departments and independent establishments of the United States and corporations acting as instrumentalities or agencies of the United States but does not include any contractor with the United States. Final Offer An offer of payment by a settlement authority in full and final settlement of a claim which, if not accepted, constitutes a final action for purposes of filing suit under chapter 4 or filing an appeal under chapter 3 or 6, provided such offer is made in writing and meets the other requirements of a final action as set forth in this regulation. Government Vehicle A vehicle owned or on loan to any agency of the U.S. Government, or privately owned and operated by a member or civilian employee of the Army in the scope of his or her office or employment with the U.S. Government, including vehicles being operated on joint operations of the U.S. Armed Forces. Medical Claims Judge Advocate A judge advocate assigned to an Army Medical Center, under an agreement between The Judge Advocate General and The Surgeon General, to perform the primary duty of investigating and processing medical malpractice claims. Medical Claims Investigator A senior legal specialist or qualified civilian assigned to assist a medical claims judge advocate on a full-time basis. A medical claims investigator is authorized to administer oaths under the provisions of Article 136(b)(7), Uniform Code of Military Justice, when performing his or her investigative duties. Medical Malpractice Claim A claim arising out of substandard or inadequate care of an Army patient. Military Personnel Members of the Army on active duty for training or inactive duty training as defined in AR 310-25 and 10 U.S.C. 101(22), 101(23), and 101(30). This includes members of the District of Columbia Army National Guard while performing active duty or training under 32 U.S.C. 316, 502, 503, 504, or 505. Noncombat Activities Authorized activities essentially military in nature, having little parallel in civilian pursuits, and which historically have been considered as furnishing a proper basis for payment of claims. Examples are practice firing of missiles and weapons, training and field exercises, and maneuvers which include the operation of aircraft and vehicles, use and occupancy of real estate, and movement of combat or other vehicles designed especially for military use. Activities excluded are those incident to combat, whether in time of war or not, and use of military personnel and civilian employees in connection with civil disturbances. Personal Property Property consisting solely of corporeal personal property, that is, tangible things. Kenneth L. Denton, Army Federal Register Liaison Officer. [FR Doc. 94-6019 Filed 3-16-94; 8:45 am] BILLING CODE 3710-08-P