[Federal Register Volume 59, Number 237 (Monday, December 12, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29167]


[[Page Unknown]]

[Federal Register: December 12, 1994]


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Part II





Department of Defense





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Department of the Army



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32 CFR Parts 536 and 537




The Army Claims System; Final Rule
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DEPARTMENT OF DEFENSE

Department of the Army

32 CFR Parts 536 and 537

 
The Army Claims System

AGENCY: Department of the Army, DOD.

ACTION: Final rule.

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SUMMARY: The Department of the Army announces a revision and 
consolidation of 32 CFR Parts 536, Claims Against the United States and 
537, Claims on Behalf of the United States in order to bring them in 
line with new policies and procedures being promulgated in Army 
Regulation 27-20, Claims. This revision retains part 536 as The Army 
Claims System. Part 537 is removed and held in reserve for future use. 
This part prescribes the policies, procedures, and responsibilities for 
investigating, processing, and settling claims against and in favor of 
the United States under the authority conferred by certain statutes, 
regulations, international and interdepartmental agreements, and 
Department of Defense directives. It is intended to ensure that claims 
are properly investigated, adjudicated objectively and fairly, and 
either paid or collection action initiated. Because of the complexity 
and length of changes and consolidation of parts 536 and 537, a 
breakout of the scope or responsibilities of each subpart to this whole 
part is listed in the Supplementary Information part of this 
submission. By reviewing the supplementary information portion, reading 
of the complete part becomes necessary in order to understand the 
entire part.

EFFECTIVE DATE: December 12, 1994.

ADDRESSES: Director, U.S. Army Claims Service, Building 4411, Llewellyn 
Ave., Fort Meade, Maryland 20755-5360.

FOR FURTHER INFORMATION CONTACT:
LTC Cashiola, (301) 677-7622 or 7960.

SUPPLEMENTARY INFORMATION:
    (Subpart A). Subpart A is the introduction of part 536. (Subpart 
B). Subpart B describes the investigation and processing of claims 
investigation and the importance of claims investigation. (Subpart C). 
This subpart is applicable in all locations and prescribes the 
substantive bases and special procedural requirements for the 
settlement of claims against the United States for death; personal 
injury; or damage, loss, or destruction of property caused by military 
personnel or civilian employees of the DA acting within the scope of 
their employment and incident to the noncombat activities of the DA, 
provided such claim is not for personal injury or death of a member of 
the Armed Forces or Coast Guard or civilian officer or employee whose 
injury or death is incident to service. (Subpart D). This subpart 
prescribes the substantive bases and special procedural requirements 
for the administrative settlement of claims against the United States 
under the FTCA and the implementing Attorney General's Regulations 
based on death, personal injury, or damage to or loss of property that 
accrues on or after 18 January 1967. (Subpart E). This subpart 
prescribes the substantive bases and special procedural requirements 
for the administrative settlement and payment, in an amount not more 
than $1,000, of any claim against the United States not cognizable 
under any other provision of law for damage or loss of property, or for 
personal injury or death caused by a member or employee of the DA 
incident to the use of a U.S. vehicle at any location or incident to 
the use of other U.S. property on a Government installation. (Subpart 
F). This subpart is applicable in all places and sets forth the 
procedures to be followed in the settlement and payment of claims for 
death, personal injury, or damage, loss, or destruction of property 
caused by members or employees of the Army National Guard; noncombat 
activities of the Army National Guard when engaged in training or duty 
under 32 U.S.C. provided such claim is not for personal injury or death 
of a member of the Armed Forces or Coast Guard and an employee whose 
injury or death is incident to service. (Subpart G). this subpart 
provides procedures and defines responsibilities for the investigation, 
processing, and settlement of claims arising out of acts or omissions 
of members of a foreign military force or civilian component present in 
the United States, or a territory, commonwealth, or possession thereof 
under the provisions of reciprocal international agreements which 
contain claims settlement provisions applicable to claims arising in 
the United States such as Article VIII of the Agreement Regarding the 
Status of Forces of Parties to the North Atlantic Treaty. (Subpart H). 
This subpart deals with claims against the United States. Title 10, 
U.S.C., section 4802, provides for the settlement or compromise of 
claims for damage caused by a vessel of, or in the service of, the 
Department of the Army (DA) or by other property under the jurisdiction 
of the DA; compensation for towage and salvage service, including 
contract salvage, rendered to a vessel of, or in the service of, the DA 
or other property under the jurisdiction of the DA or damage caused by 
a maritime tort committed by any agent or employee of the DA or by 
property under the jurisdiction of the DA. (Subpart I). This subpart 
sets for the standards to be applied and the procedures to be followed 
in the processing of claims for damage, loss, or destruction of 
property owned by or in the lawful possession of an individual whether 
civilian or military, a business, a charity, or a State or local 
government, where the property was wrongfully taken or willfully 
damaged by military members of DA. (Subpart J). This subpart implements 
the Foreign Claims Act (FCA) and authorizes the administrative 
settlement of claims of inhabitants of a foreign country, or by a 
foreign country or a political subdivision hereof, against the United 
States for personal injury or death or property damages caused outside 
the United States, its territories, commonwealths, or possessions by 
military personnel or civilian employees of the DA, or claims which 
arise incident to noncombat activities of the Army. (Subpart K). This 
subpart deals with personal claims and related recovery actions, 
delegation of authority and prescribes the substantive bases and 
special procedural rules for the administrative settlement of claims 
against the United States submitted by the Active Army, Army National 
Guard and U.S. Army Reserve personnel, and civilian employees of DOD 
and DA for damage to or loss of personal property incident to their 
service. (Subpart L). This subpart sets forth the procedures to be 
followed in the settlement and payment of claims by employees of 
nonappropriated fund activities for the loss of or damage to personal 
property incident to their employment, and for claims generated by the 
acts or omissions of the employees of such funds. (Subpart M). This 
subpart establishes the authority and responsibility for affirmative 
claims. This subpart prescribes procedures for the administrative 
determination, assertion, collection, settlement, and waiver of claims 
in favor of the United States for damage to, loss, or destruction of 
Army property, and for the recovery of the reasonable value of medical 
care furnished or to be furnished by the United States under the 
statutes cited in Sec. 536.213. (Subpart N). This subpart sets forth 
the procedures for all aspects of records management to include, 
arrangement of files, file management; maintenance of and retrieval of 
files, files disposition, etc., and monthly claims reporting system as 
pertains to Claims Office Administration.
    Army publications referenced in this Final Rule may be purchased 
from the National Technical Information Service, U.S. Department of 
Commerce, 5285 Port Royal Road, Springfield, Virginia 22161. The U.S. 
Code or public laws, can normally be reviewed in any public library.

Executive Order 12291

    This final rule has been reviewed under Executive Order 12291. The 
effect of this proposed rule on the economy will be less than $100 
million.

Regulatory Flexibility Act

    This final rule has been reviewed with regard to the requirements 
of the Regulatory Flexibility Act of 1980. This action does not have a 
significant impact on a substantial number of small entities.

Paperwork Reduction Act

    This final rule does not contain reporting or recordkeeping 
requirements subject to approval by the Office of the Management and 
Budget under the requirements of the Paperwork Reduction Act of 1980 
(44 U.S.C. 3507).

List of Subjects

32 CFR Part 536

    Claims, Government employees, Military personnel.

32 CFR Part 537

    Claims, Health care.

PART 537--CLAIMS ON BEHALF OF THE UNITED STATES--[REMOVED]

    1. 32 CFR Part 537 is removed.
    2. 32 CFR Part 536 is revised as follows:

PART 536--THE ARMY CLAIMS SYSTEM

Subpart A--The Army Claims System

536.1  Purpose.
536.2  References.
536.3  Explanation of abbreviations and terms.
536.4  Types of claims.
536.5  Command and organizational relationships.
536.6  Designation of claims attorneys.

Responsibilities, Operations, Policies, and Guidance

536.7  Responsibilities.
536.8  Operations of claims components.
536.9  Claims policies.
536.10  Guidance concerning disclosure of information and 
assistance.
536.11  Single service claims responsibility (DODD 5515.8).
536.12  Cross-servicing of claims (DODD 5515.3).

Subpart B--Investigation and Processing of Claims Investigation

536.13  Importance of the claims investigation.
536.14  Reasons for investigation.
536.15  Immediate investigation requirement.
536.16  Unit claim officers.
536.17  Claims office responsibility.
536.18  Transfer of responsibility.
536.19  Investigative procedures.

Claims Receipt and Disposition

536.20  Presentation.
536.21  Disposition of claims.
536.22  Claims memorandum of opinion.
536.23  Actions.

Liability and Quantum Determinations

536.24  General considerations.
536.25  Incident to service exclusionary rule.
536.26  Property damage appraisers.
536.27  Independent medical examinations.
536.28  Effect on award of other payments to claimant.
536.29  Claims with more than one potential source of recovery.

Settlement Procedures

536.30  Settlement.
536.31  Claims forwarded without settlement.
536.32  Settlement agreement.
536.33  Vouchers.
536.34  Accounting codes.
536.35  Payment.
536.36  Effect of payment.
536.37  Notification as to denial of claims.

Small Claims

536.38  General.
536.39  Investigation.
536.40  Report of investigation.
536.41  Processing.
536.42  Settlement agreement.
536.43  Payment.

Advance Payments

536.44  Authority.
536.45  Conditions for advance payment.
536.46  Authorization.
536.47  Advance payment acceptance agreement.

Subpart C--Claims Cognizable Under the Military Claims Act

536.48  Statutory authority.
536.49  Scope.
536.50  Claims payable.
536.51  Claims not payable.
536.52  Claims having multiple remedies.
536.53  Presentation of claim.
536.54  Procedures.
536.55  Law applicable to liability.
536.56  Measure of damages for property claims.
536.57  Measure of damages in injury or death claims arising in the 
United States or its possessions.
536.58  Measure of damages in injury or death claims arising in 
foreign countries.
536.59  Failure to substantiate a claim.
536.60  Structured settlement.
536.61  Settlement authority.
536.62  Claims over $100,000.
536.63  Settlement procedures.
536.64  Action on appeal.
536.65  Cross-servicing of claims.
536.66  Attorney fees.
536.67  Payment of costs, settlements, and judgments related to 
certain medical malpractice claims.
536.68  Payments of costs, settlements, and judgments related to 
certain legal malpractice claims.

Subpart D--Claims Cognizable Under the Federal Tort Claims Act

536.69  Authority.
536.70  Scope.
536.71  Claims payable.
536.72  Law applicable.
536.73  Subrogation.
536.74  Indemnity or contribution.
536.75  Claims not payable.
536.76  Claims under other laws and regulations.
536.77  Procedures.
536.78  Payment of claims.
536.79  Acceptance of award.
536.80  Delegation of authority.
536.81  Consultation with the Department of Justice.
536.82  Reconsideration.

Subpart E--Claims Involving Government Vehicles and Property Not 
Cognizable Under Other Law

536.83  Statutory authority.
536.84  Scope.
536.85  Claims payable.
536.86  Claims not payable.
536.87  When claim must be presented.
536.88  Procedures.
536.89  Settlement agreement.
536.90  Delegation of authority.
536.91  Reconsideration.

Subpart F--Claims Arising from Activities of the Army National Guard

536.92  Statutory authority.
536.93  Scope.
536.94  Claims payable.
536.95  Claims not payable.
536.96  Claims under other subparts.
536.97  Notification of incident.
536.98  Investigation.
536.99  Claims in which there is a State source of recovery.
536.100  Claims against the ARNG tortfeasor individually.
536.101  When claims must be presented.
536.102  Where claims must be presented.
536.103  Procedures.
536.104  Settlement agreement.

Subpart G--Claims Under Status of Forces and Other International 
Agreements

General

536.105  Statutory authority.

Claims Arising in the United States

536.106  Scope.
536.107  Notification of incidents.
536.108  Liaison with Sending State representatives.
536.109  Investigations.
536.110  Claims procedures.
536.111  Settlement authority.
536.112  Advance payments.
536.113  Litigation.
536.114  Assistance to foreign forces.

Claims Against the United States Arising Overseas

536.115  Scope.
536.116  Claims procedures.
536.117  Responsibilities.
536.118  Reimbursements for nonappropriated funds.
536.119  Reimbursement for Coast Guard activities.

Subpart H--Maritime Claims

General

536.120  Statutory authority.
536.121  Related statutes.

Claims Against the United States

536.122  Scope.
536.123  Claims exceeding $500,000.
536.124  Claims not payable.
536.125  Claims under other laws and regulations.
536.126  Subrogation.
536.127  Limitation of settlement.
536.128  Approval authority.

Claims in Favor of the United States

536.129  Scope.
536.130  Claims exceeding $500,000.
536.131  Civil works activities.
536.132  Delegation of authority.
536.133  Demands.

Investigations and Reports

536.134  Procedure.
536.135  Reports.
536.136  Form of claim.

Subpart I--Claims Under Article 139, Uniform Code of Military Justice

536.137  Statutory authority.
536.138  Purpose.
536.139  Effect of disciplinary action.
536.140  Claims cognizable.
536.141  Claims not cognizable.
536.142  Limitations on assessments.
536.143  Procedure.
536.144  Reconsideration.

Subpart J--Claims Cognizable Under the Foreign Claims Act

General

536.145  Statutory authority.
536.146  Scope.
536.147  Claims cognizable under other subparts.
536.148  Claims provisions of treaties and agreements.
536.149  Presentation of claims.
536.150  Form of claims.
536.151  Claimants.
536.152  Claims payable.
536.153  Claims not payable.
536.154  Compensation.
536.155  Computation of amount.

Foreign Claims Communications

536.156  Appointment and functions.
536.157  Composition.
536.158  Qualification of members.
536.159  Delegaton of authority.
536.160  Advance payments.

Subpart K--Personnel Claims and Related Recovery Actions

General

536.161  Authority.
536.162  Delation of authority.
536.163  Scope.
536.164  Claimants.
536.165  Claims cognizable.
536.166  Claims not cognizable.
536.167  Time prescribed for filing.
536.168  Form of claim.
536.169  Presentation.

Evaluation, Adjudication, and Settlement of Claims

536.170  Policy.
536.171  Preliminary findings required.
536.172  Guides for computing amounts allowable.
536.173  Ownership or custody of property.
536.174  Determination of compensation.
536.175  Cognizable incidental expenses.
536.176  Property recovered.
536.177  Companion claims.
536.178  Emergency partial payments.
536.179  Personnel claims memorandum.
536.180  Reconsideration.
536.181  Judge advocate procedures responsibilities.
536.182  Finality of settlement.

Recovery From Third Party

536.183  Scope.
536.184  Duties and responsibilities.
536.185  Determination of liability.
536.186  Exclusions of liability.
536.187  Limits of liability.
536.188  Settlement procedures in recovery actions.
536.189  Payment to the claimant beyond the statutory limit.
536.190  Reimbursements to claimants and insurers from money 
received.
536.191  Recovery action against a claimant.
536.192  Claims arising from packing and containerization contract 
shipments.
536.193  Claims caused by stevedoring contractors.
536.194  Claims arising from intra-theater shipments.
536.195  Claims against ocean carriers.
536.196  Centralized recovery program procedures.
536.197  Offset actions.
536.198  Compromise or termination of recovery actions.
536.199  Terms and abbreviations.
536.200  Required references.

Subpart L--Nonappropriated Fund (NAF) Claims

Claims Against NAF Activities

536.201  General.
536.202  Claims by employees for losses incident to employment.
536.203  Claims generated by the acts or omissions of employees.
536.204  Persons generating liability.
536.205  Claims payable from appropriated funds.
536.206  Settlement.
536.207  Payment.

Claims Involving Persons Other Than NAF Employees

536.208  Claims arising from activities of nonappropriated fund 
contractors.
536.209  Non-NAFI RIMP claims.
536.210  Claims cognizable.
536.211  Procedures.
536.212  Delegation of authority.

Subpart M--Affirmative Claims

General

536.213  Authority.
536.214  Recovery judge advocate/attorney.
536.215  Purpose and policy.
536.216  Delegation of authority.
536.217  Basic considerations.
536.218  Claims against certain prospective defendants.

Property Claims

536.219  General.
536.220  Repayment in kind.
536.221  Property damage predemand procedures.

Medical Care Claims

536.222  General.
536.223  Recovery rights under the FMCRA.
536.224  Identification of potential medical care recovery claims.
536.225  Medical care procedures following identification.
536.226  Relations with the injured party.

Recovering and Deposition on Claims

536.227  The MTF Third Party Recovery Program (TPCP).
536.228  Post demand procedures.
536.229  Settling affirmative claims.
536.230  Litigation.
536.231  Administrative matters.

Subpart N--Claims Office Administration

Records and File Equipment

536.232  Records.
536.233  Arrangement of claims files.
536.234  Disposition of claims files.
536.235  Retrieval of claims files.
536.236  Certified and registered mail.
536.237  Maintenance of claims files.

Monthly Claims Reporting System

536.238  General.
536.239  Reporting requirements.
536.240  Error reports.
536.241  Preparation.

Management of Claims Expenditure Allowance (CEA)

536.242  General.
536.243  CEA reporting requirements.
536.244  Solatia payment.

Appendix A to Part 536--References

Appendix B to Part 536--Glossary

    Authority: 10 U.S.C. 939, 2733, 2734, 2734a, 2736, 2737, 3012, 
4801 through 4804, and 4806; 28 U.S.C. 1346(b), 2401(b), 2402, 2671 
through 2680; and 32 U.S.C. 715.

Subpart A--The Army Claims System

General


Sec. 536.1  Purpose.

    This part prescribes the policies, procedures, and responsibilities 
for investigating, processing, and settling claims against and in favor 
of the United States under the authority conferred by certain statutes, 
regulations, international and interdepartmental agreements, and 
Department of Defense (DOD) directives. It is intended to ensure that 
claims are properly investigated, adjudicated objectively and fairly, 
and either paid or collection action initiated.


Sec. 536.2  References.

    Required and related publications and prescribed and referenced 
forms are listed in appendix A to this part.


Sec. 536.3  Explanation of abbreviations and terms.

    Abbreviations and special terms used in this part are explained in 
appendix B to this part.


Sec. 536.4  Types of claims.

    (a) This part covers the following type of claims:
    (1) Claims cognizable under the following claims settlement 
authorizations:
    (i) The Military Claims Act (MCA), 10 U.S.C. 2733. (See subpart C.)
    (ii) The Federal Tort Claims Act (FTCA), 28 U.S.C. 2671-2680. (See 
subpart D.)
    (iii) The Act of 9 October 1962, 10 U.S.C. 2737. (See subpart E.)
    (iv) The National Guard Claims Act (NGCA), 32 U.S.C. 715. (See 
subpart F.)
    (v) Title 10, United States Code (U.S.C.), sections 2734a and 
2734b. (See subpart G.)
    (vi) The Maritime Claims Settlement Act, 10 U.S.C. 4801-4804, 4806. 
(See subpart H.)
    (vii) Article 139, Uniform Code of Military Justice (UCMJ), 10 
U.S.C. 939. (See subpart I.)
    (viii) The Foreign Claims Act (FCA), 10 U.S.C. 2734. (See subpart 
J.)
    (ix) Title 31, U.S.C., section 3721. (See subpart K.)
    (x) Federal Claims Collection Act, 31 U.S.C. 3711. (See subpart M.)
    (xi) Federal Medical Care Recovery Act, 42 U.S.C. 2651-53. (See 
subpart M.)
    (2) Claims against nonappropriated fund activities and the risk 
management program (RIMP). (See subpart L.)
    (3) Claims under industrial security regulations (DOD Directive 
(DODD) 5220.6) and claims by the U.S. Postal Service for losses or 
shortages in postal accounts caused by unbonded Army personnel (39 
U.S.C. 411 and DOD Manual 4525.6-M). (See DA Pam. 27-162, chap. 5, sec. 
XI.)
    (b) DA Pam. 27-162, chapter 8 lists other laws and regulations 
under which claims not covered by this part may be cognizable.
    (c) Where a conflict exists between a general provision of this 
part and a specific provision found in subparts implementing a specific 
claims statute, the specific provision will control.


Sec. 536.5  Command and organizational relationships.

    (a) The Secretary of the Army has delegated authority to The Judge 
Advocate General (TJAG) to assign areas of responsibility and designate 
functional responsibility for claims purposes. TJAG has delegated 
authority to the Commander, U.S. Army Claims Service (USARCS), to carry 
out responsibilities assigned in Sec. 536.7(b).
    (b) USARCS, a field operating agency of the Office of TJAG, is the 
agency through which the Secretary of the Army and TJAG discharge their 
responsibilities for the administrative settlement of claims worldwide. 
(See AR 10-72.) The proper mailing address of USARCS is Commander, U.S. 
Army Claims Service, Office of The Judge Advocate General, Fort George 
G. Meade, Maryland 20755-5360.
    (c) Command claims services.
    (1) Command claims services exercise general supervisory authority 
over claims matters arising within their assigned areas of operation. 
Command claims services will provide--
    (i) Effective control and supervision of the investigation of 
incidents occurring within the geographic area of the command, 
occurring in other areas for which the command is assigned claims 
responsibility or occurring in the course of the command's operations.
    (ii) Services for the processing and settlement of claims for and 
against the United States.
    (2) The commander of a major overseas command or other commands 
that include areas outside the United States, its territories, and 
possessions, and report directly to the Department of the Army (DA) may 
be designated by TJAG to establish, a command claims service.
    (3) A command claims service may be a separate organization with a 
designated commander or chief. If it is part of the Office of the Staff 
Judge Advocate (SJA) of the command, the SJA will also be the chief of 
the command claims service.
    (d) The following may be designated as area claims offices:
    (1) An office under the supervision of the senior judge advocate 
(JA) of each command or organization so designated by the Commander, 
USARCS. The senior JA is the head of the area claims office.
    (2) An office under the supervision of the senior JA of each 
command in the area of operations of a command claims service so 
designated by the chief of that service after coordination with the 
Commander, USARCS (see Sec. 536.7(c)(2)). The senior JA in the office 
is the head of the area claims office.
    (3) The legal office of each engineer district within the United 
States and such other engineer commands or agencies as designated by 
the Commander, USARCS, with concurrence of the Chief of Engineers 
(COE), for all claims generated by such districts, commands, or 
agencies. The district counsel or the attorney in charge of the legal 
office of the command or agency is the head of the area claims office.
    (e) Claims processing offices are normally small legal offices or 
subordinate elements of area claims offices, which are designated by 
the Commander, USARCS; a command claims service; or an area claims 
office. These offices are established for the investigation of all 
potential and actual claims arising within their jurisdiction, either 
on an area basis or on a command or agency basis. A claims officer (see 
appendix B to this part) will not be a claims processing office; his or 
her role is limited to claims investigation. There are four types of 
claims processing offices as follows (Sec. 536.8(c)):
    (1) Claims processing offices without approval authority.
    (2) Claims processing offices with approval authority.
    (3) Medical claims processing offices.
    (4) Special claims processing offices.
    (f) The chief of a command claims service and the head of an area 
claims office or a claims processing office with approval authority may 
delegate, in writing, any portion or all of his or her monetary 
approval authority to a subordinate JA or claims attorney in his or her 
service or office. The authority to act upon appeals or requests for 
reconsideration, to disapprove claims (including disapprovals based on 
substantial fraud), or to make final offers will not be delegated. 
Copies of delegations within claims processing offices will be provided 
to the area claims office and, if so directed, to command claims 
services.


Sec. 536.6  Designation of claims attorneys.

    (a) The Commander, USARCS, the senior JA of a command having a 
command claims service or the Commander, USAREUR Claims Service, the 
head of an area claims office, or the Chief Counsel, COE, may designate 
a qualified attorney other than a Judge Advocate as a claims attorney. 
The head of an area claims office may designate a claims attorney to 
act as a claims processing office with approval authority.
    (b) To be eligible as a claims attorney, an individual must be a 
civilian employee of the DA or DOD, in grade GS-11 or above; a member 
of the bar of a State, the District of Columbia, or a jurisdiction 
where U.S. Federal law applies; and be performing primary duties as a 
legal adviser. These requirements can be waived by the Commander, 
USARCS, in appropriate cases.

Responsibilities, Operations, Policies, and Guidance


Sec. 536.7  Responsibilities.

    (a) The Judge Advocate General. TJAG has Army Staff responsibility 
for administrative settlement of claims worldwide by and against the 
U.S. Government, generated by employees of the U.S. Army and, DOD 
components other than the Departments of the Air Force and Navy (see 
DOD Directive 5515.9). Certain claims responsibilities to TJAG are 
exercised by The Assistant Judge Advocate General (TAJAG), as set forth 
in this regulation.
    (b) Commander, USARCS. Commander, USARCS will--
    (1) Supervise and inspect U.S. Army claims activities worldwide.
    (2) Formulate and implement claims policies and uniform standards 
for claims office operations.
    (3) Supervise the investigation, processing, and settlement of 
claims against and on behalf of the United States under the statutes 
and regulations listed in Sec. 536.4.
    (4) Designate area claims offices, claims processing offices, and 
claims attorneys within DA and DOD components other than the 
Departments of the Navy and Air Force.
    (5) Designate Continental United States (CONUS) geographic areas of 
claims responsibility.
    (6) Recommend action to be taken by the Secretary of the Army or 
the Attorney General of the United States as appropriate, regarding 
claims in excess of $100,000 under the FCA, the MCA, and the NGCA and 
other claims that have been appealed to the Secretary of the Army, or 
are in excess of $25,000 under the FTCA.
    (7) Operate the ``receiving State office'' for claims cognizable 
under Article VIII of the North Atlantic Treaty Organization (NATO) 
Status of Forces Agreement (SOFA), as implemented by 10 U.S.C. 2743b 
(Subpart G).
    (8) Settle claims of the U.S. Postal Service for reimbursement 
under 39 U.S.C. 411 (see DOD Manual 4525.6-M) and of DOD under 
industrial security regulations (DODD 5220.6).
    (9) Settle claims against carriers, warehouse firms, insurers, and 
other third parties for loss of, or damage to, personal property of 
service members incurred while in storage or in transit at Government 
expense (subpart K).
    (10) Formulate and recommend proposed legislation for Congressional 
enactment of new statutes and the amendment of existing statutes 
considered essential for orderly and expeditious administrative 
settlement of noncontractual claims.
    (11) Perform post settlement review of claims.
    (12) Prepare, justify, and defend estimates of budgetary 
requirements and administer the Army claims budget.
    (13) Maintain permanent records of claims for which TJAG is 
responsible.
    (14) Assist in developing disaster and maneuver claims plans 
designed to implement responsibilities set forth in paragraphs (d)(11) 
of this section and Sec. 536.15(c).
    (15) Develop and maintain plans for a disaster or civil disturbance 
for geographic areas not under the jurisdiction of an area claims 
authority and in which the Army has single service responsibility or in 
which the Army is likely to be the predominant Armed Force.
    (16) Take initial action on claims arising in emergency situations 
as outlined in Sec. 536.15(c).
    (17) Provide assistance as available or take appropriate action to 
ensure that command claims services and area claims offices are 
carrying out their responsibilities as set forth in paragraphs (c) and 
(d) of this section.
    (18) Serve as proponent for Claims Legal Automated Information 
Management System (CLAIMS) and provide standard automated claims data 
management programs for use worldwide.
    (19) Ensure proper training of claims personnel.
    (20) Coordinate claims activities with the Air Force, Navy, Marine 
Corps, and other DOD agencies to ensure a consistent DOD claims 
program.
    (21) Supervise the investigation and processing of medical 
malpractice claims arising in Army medical centers within the United 
States. Provide medical claims JAs, medical claims attorneys and 
medical claims investigators assigned to such medical centers with 
technical guidance and direction on such claims.
    (22) Coordinate support with the Office of The Surgeon General on 
matters relating to medical malpractice claims.
    (23) Issue an accounting classification to all properly designated 
claims settlement and approval authorities.
    (24) Perform the investigation, processing, and settlement of 
claims arising in areas not within the areas of operation of command 
claims services unless specifically delegated to a SJA of a command or 
designee.
    (c) Chiefs of command claims services. Chiefs of command claims 
services will--
    (1) Exercise claims settlement authority as specified in this part, 
to include appellate authority where so delegated.
    (2) Designate area claims offices and grant claims settlement 
authority thereto. A grant of such authority will not be effective 
until coordinated with the Commander, USARCS and an office code 
assigned. However, the chief of a command claims service may 
redesignate a claims processing office already having an assigned 
office code as an area claims office without coordination with the 
Commander, USARCS. The Commander, USARCS will be informed of such a 
designation.
    (3) Designate claims processing offices and grant claims approval 
authority thereto. Only claims processing offices staffed with a JA or 
claims attorney may be granted approval authority. A grant of such 
authority will not be effective until coordinated with the Commander, 
USARCS and an office code assigned.
    (4) Train claims personnel and monitor their activities.
    (5) Implement pertinent claims policies.
    (6) Prepare and publish command claims directives.
    (7) Administer the command claims expenditure allowance, providing 
necessary data, estimates, and reports to USARCS.
    (8) Perform the responsibilities of an area claims office (see 
paragraph (d) of this section), as applicable.
    (9) Serve as the U.S. sending State office, if so designated, when 
operating in an area covered by a status of forces agreement.
    (d) Heads of area claims offices. Heads of area claims offices 
will--
    (1) Ensure that claims in their area of responsibility are promptly 
investigated according to this part.
    (2) Ensure that each organization or activity (for example, U.S. 
Army Reserve (USAR) or Army National Guard (ARNG) unit, Reserve 
Officers' Training Corps (ROTC) detachment, recruiting company or 
station, and DOD agency) within the area appoints a claims officer to 
investigate claims incidents not requiring investigation by a JA 
(Sec. 536.16(c)(2)) and ensure that this officer is adequately trained.
    (3) Act as a claims settlement authority on claims within the 
monetary jurisdictions set forth in this regulation and forward claims 
beyond such jurisdictions to the Commander, USARCS or to the chief of a 
command claims service, as appropriate, for action.
    (4) Designate claims processing offices and request the Commander, 
USARCS or the chief of a command claims service, as appropriate, to 
grant claims approval authority to a claims processing office with 
respect to claims within that office's jurisdiction, as specified under 
paragraphs (b)(4) and (c)(2), of this section.
    (5) Prepare and publish a claims directive concerning the 
investigation and processing of claims matters for the guidance of all 
claims processing offices within their area.
    (6) Implement claims policies and guidance furnished by TAJAG or 
Commander, USARCS through policy directives or the Claims Manual and 
establish and implement necessary claims policies and procedures not 
contrary to the foregoing.
    (7) Ensure that there are an adequate number of qualified JAs or 
claims attorneys, claims examiners, claims adjudicators and claims 
clerks in all claims offices within their area to take prompt action on 
claims and that they are adequately trained.
    (8) Budget and fund for claims investigations and activities to 
include per diem and transportation of claims personnel, claimants and 
witnesses, independent medical examinations, appraisals, independent 
expert opinions, long distance phone calls, recording and photographic 
equipment, use of express mail or couriers, and other necessary 
expenses.
    (9) Within continental United States (CONUS), procure and 
disseminate adequate legal publications on local law and verdicts 
relating to tort claims within the area of jurisdiction.
    (10) Notify Commander, USARCS of all claims and claims incidents as 
required by Sec. 536.17 and Sec. 536.21(b)(2).
    (11) Develop and maintain written plans for a disaster or civil 
disturbance. The plan should include a requirement for an advance party 
to assess the need for the presence of a special claims processing 
office. The plans may be internal Office of the SJA plans or an annex 
to an installation/organizational plan. (See also 
Sec. 536.8(c)(4)(iii).)
    (12) Implement the Army's Article 139 claims program. (See 
Sec. 536.142.)
    (e) Heads of claims processing offices. Heads of claims processing 
offices will--
    (1) Investigate all potential and actual claims arising within its 
assigned jurisdiction, either on an area basis or on a command or 
agency basis. Only a claims processing office with approval authority 
can adjudicate and pay all presented claims within its monetary 
jurisdiction.
    (2) Ensure that units and organizations within its jurisdiction 
have appointed claims officers for the investigation of claims not 
requiring investigation by a JA. (See Sec. 536.16.)
    (3) Budget and fund for claims investigations and activities to 
include per diem and transportation of claims personnel, claimants and 
witnesses, independent medical examinations, appraisals, independent 
expert opinions, long distance phone calls, recording and photographic 
equipment, use of express mail or couriers, and other necessary 
expenses.
    (4) Within CONUS, procure and maintain legal publications on local 
law and verdicts relating to tort claims within their jurisdiction.
    (5) Notify the Commander, USARCS of all claims and claims incidents 
as required by Sec. 536.17 and Sec. 536.21(b)(2).
    (6) Implement the Army's Article 139 claims program. (See 
Sec. 536.142.)
    (f) Chief of Engineers. The COE, through the Chief Counsel, will--
    (1) Provide general supervision of the claims activities of 
engineer area claims offices.
    (2) Ensure that each engineer area claims office has a claims 
attorney designated by the Commander, USARCS, as prescribed in 
Sec. 536.6.
    (3) Ensure the training of claims personnel and the continuing 
inspection of their activities.
    (4) Provide for implementation of pertinent claims policies.
    (5) Provide for budgeting in accordance with existing Army 
regulations and command directives for temporary duty (TDY), long 
distance phone calls, recording equipment, cameras, and other expenses 
for investigation and processing of claims.
    (6) Take action to procure and have available adequate legal 
publications on local law relating to claims arising within the United 
States, its territories, and possessions.
    (g) Commanding General, U.S. Army Health Services Command (CG, 
HSC). The CG, HSC will, through his SJA, ensure that adequate and 
qualified medical claims JAs and medical claims investigators are 
assigned for the investigation and processing of medical malpractice 
claims arising at Army medical centers under his or her control. In 
accordance with an agreement between TJAG and the Surgeon General, such 
personnel will be used primarily in investigating and processing of 
medical malpractice claims and provided with the necessary funding and 
research materials to carry out this function.
    (h) Chief, National Guard Bureau (NGB). The Chief, NGB will--
    (1) Ensure that a point of contact for claims matters is designated 
in each adjutant general office.
    (2) Provide the name, address, and telephone number of the point of 
contact to the Commander, USARCS.
    (3) Designate claims officers to investigate claims generated by 
ARNG personnel and forward investigations to the active Army area 
claims office having jurisdiction over the area in which the claims 
incident occurred.
    (4) Publish a regulation to carry out these responsibilities.
    (i) Commanders of major Army commands (MACOMs). Commanders of 
MACOMs through their SJAs will--
    (1) Assist USARCS in monitoring area claims offices and claims 
processing offices under their respective command control for 
compliance with responsibilities assigned in paragraphs (d) and (e) of 
this section.
    (2) Assist claims personnel in obtaining qualified expert and 
technical advice from units and organizations under their respective 
command control on a nonreimbursable basis except that the requesting 
office may be required to provide TDY funding.
    (3) Assist TJAG, through the Commander, USARCS, in the 
implementation of the functions set forth in paragraph (b) of this 
section.
    (4) Coordinate with the area claims office within whose 
jurisdiction a maneuver will occur to ensure the prompt investigation 
and settlement of claims arising from the maneuver.


Sec. 536.8  Operations of claims components.

    (a) Command claims services. A command claims service will be 
supervised by the SJA of the command. If the command claims service is 
a separate organization, the command SJA will designate a JA as the 
chief of the service. Otherwise, the SJA will be the chief of the 
service. Adequate, qualified claims personnel will be assigned to 
ensure that claims are promptly investigated and acted upon. With the 
concurrence of the service may designate area claims offices within its 
area of operations to carry out claims responsibilities within 
specified geographic areas.
    (b) Area claims offices.
    (1) The area claims office is the principal office for the 
investigation and adjudication or settlement of claims, and will be 
staffed with qualified legal personnel under the supervision of the SJA 
or command JA or Corps of Engineer district or command legal counsel.
    (2) The full-time responsibility for claims investigations and 
processing in a portion of the area or for claims related to the 
activities of a unit or organization within the area may be delegated 
to another command, unit, or activity by the establishment of a claims 
processing office at the command, unit or authority. (See 
Sec. 536.7(d)(4) and (e).) Normally, all claims processing offices will 
operate under the supervision of the area claims office in whose area 
the claims processing office is located. Where a proposed claims 
processing office is not under the command of the parent organization 
of the area claims office, this designation may be effected by a 
support agreement or memorandum of understanding between the affected 
commands.
    (3) Normally, claims that cannot be settled by an engineer area 
claims office will be forwarded directly to the Commander, USARCS with 
notice to the Chief Counsel, COE of such referral. However, the Chief 
Counsel, as part of his or her responsibility for litigation of suits 
involving civil works and military construction activities, may require 
that an engineer area claims office forward claims through engineer 
channels provided that such requirement does not preclude final action 
by Commander, USARCS within the time limitations set forth in subparts 
D and H.
    (c) Claims processing offices. For a subpart K, if the adjudicated 
amount of a claim is in excess of the monetary jurisdiction of the head 
of the claims processing authority, the claim will be approved and paid 
up to the delegated authority of that office and immediately forwarded 
to the next higher claims authority for additional payment. (See 
Sec. 536.161(e)).
    (1) Claims processing offices without approval authority. A claims 
processing office that has not been granted claims approval authority 
will provide for the investigation of all potential and actual claims 
arising within its assigned jurisdiction, either on an area basis or on 
a command or agency basis. Once the investigation is completed, the 
claims file will be forwarded to the appropriate area claims office for 
action. Alternatively, an area claims office may direct that a claims 
investigation made by a claims processing office without approval 
authority be forwarded to another claims processing office within the 
area that has approval authority if the claim is within the 
jurisdiction of the latter.
    (2) Claims processing office with approval authority. A claims 
processing office that has been granted approval authority must provide 
for the investigation of all potential and actual claims arising within 
its assigned jurisdiction, either on an area basis or on a command or 
agency basis, and for the adjudication and payment of all presented 
claims within its monetary jurisdiction. If the estimated value of a 
claim, after investigation, is beyond the payment authority of the 
claims processing office or if disapproval is the appropriate action, 
the claim file will be forwarded to the area claims office unless 
otherwise specified in this part, or forwarded to USARCS or the command 
claims service, as appropriate, if directed by such service.
    (3) Medical claims processing offices. The medical claims JAs at 
Army medical centers, other than Fitzsimons Army Medical Center and 
Walter Reed Army Medical Center, may be designated by the SJA/head of 
area claims office for the installation on which the center is located 
as claims processing offices with approval authority for medical 
malpractice claims only. Claims beyond their approval authority will be 
investigated and forwarded to the Commander, USARCS. The SJA, Health 
Services Command, Quality Assurance Division, OTSG (DASG-PSQ) and the 
Consultation Case Review Branch, Clinical Policy and Consultants 
Division, Office of the Surgeon General (CCRB), will be advised by 
USARCS of all referrals, provided a copy of all claims, and informed of 
their disposition.
    (4) Special claims processing offices.
    (i) The Commander, USARCS, the chief of a command claims service or 
the head of an area claims office may designate special claims 
processing offices within his or her command for specific, short-term 
purposes (for example, maneuvers, civil disturbances, and emergencies). 
These special claims processing offices may be delegated approval 
authority necessary to effect the purpose of their creation, but in no 
case will this delegation exceed the approval authority maximums set 
forth in other subparts of this part for regular claims processing 
offices. All claims will be processed under the claims expenditure 
allowance and claims command and office code of the authority who 
established the office or a code assigned by USARCS. The existence of 
any special claims processing office must be reported to the Commander, 
USARCS.
    (ii) A special claims processing office is the proper organization 
to process and approve, as appropriate, maneuver damage claims, except 
where a foreign government is responsible for adjudication under an 
international agreement (see subpart G). Personnel from the maneuvering 
command should be used in the investigation of claims and, at the 
discretion of the area claims office, may be assigned to the special 
claims processing office. Claims filed after the termination of the 
maneuver will be processed by the area claims office. Claims arising 
within the jurisdiction of other area claims offices, while units are 
traveling to or from the maneuver, will be investigated by the special 
claims processing office and forwarded for action to the area claims 
office in whose area the claims arose. Claims for damage to real or 
personal property arising on private land being used under a permit may 
be paid from funds specifically budgeted by the maneuver for such 
purposes in accordance with AR 405-15.
    (iii) A special claims processing office provided for a disaster or 
civil disturbance should include a claims approving authority with 
adequate investigatory, administrative, and logistical support, to 
include damage assessment and finance and accounting support. It should 
not be dispatched prior to notification of Commander, USARCS. The 
concurrence of Commander, USARCS must be obtained prior to the payment 
of the first claim.
    (5) Claims processing offices discussed in paragraphs (c)(2) 
through (4) of this section must be supervised by an assigned JA or 
claims attorney in order to exercise delegated approval authority.


Sec. 536.9  Claims policies.

    (a) General. (1) Claims investigation and adjudication should be 
accomplished at the lowest level possible, that is, by the claims 
processing office or area claims office with monetary authority over 
the estimated total value of all claims arising from the incident in 
question. The expeditious investigation and settlement of claims is 
essential to the successful fulfillment of the Army's responsibilities 
under the claims statutes implemented by this part.
    (2) Where technical errors exist in the filing of a claim or in its 
format, claimants should be advised of such errors and the need for 
corrective action. If the errors concern a jurisdictional matter, 
advice should be given expeditiously and a record should be maintained. 
The advice should include a warning that the error must be corrected 
prior to the expiration of the statute of limitations.
    (b) Investigative environment. In the investigation of claims, 
every effort should be made to create a cooperative environment 
engendering the free exchange of information and evidence. The goal of 
obtaining sufficient information to make an objective and fair analysis 
should be paramount. Personal contact with claimants or their 
representatives is frequently essential to clarify the issues both 
during investigation and prior to adjudication. Where settlement is not 
feasible, issues of disagreement or dispute should be clearly 
identified and spelled out to facilitate the resolution of any 
reconsideration, appeal, or in appropriate cases, litigation.
    (c) Claims directives and plans. (1) Two copies of command claims 
directives will be furnished to the Commander, USARCS. Area claims 
office directives will be distributed to all DA and DOD commands, 
installations, and activities within the area of responsibility with an 
information copy to Commander, USARCS.
    (2) One copy of all area claims offices' disaster/civil disturbance 
plan or annex will be furnished to the Commander, USARCS.
    (d) Interpretations. The Commander, USARCS will publish written 
interpretations of the provisions of this part and establish and 
publish policy as to those matters that are within agency discretion. 
Interpretations and policies that reference this provision will have 
the same force and effect as this part.
    (e) Exceptions. If it is considered to be in the best interest of 
the Government, the Commander, USARCS may grant authority to deviate 
from the specific requirements contained in this part in a particular 
instance except as to matters that are based on statutes, treaties and 
international agreements, executive orders, controlling directives of 
the Attorney General or Comptroller General, or otherwise have the 
force and effect of law.
    (f) Guidance. The Commander, USARCS may publish bulletins, manuals, 
handbooks, notes, and a DA Pamphlet to provide claims authorities with 
guidance on administrative and procedural matters related to the 
implementation of this part. These will be binding on all Army claims 
personnel.
    (g) Communication. All claims personnel are authorized to 
communicate directly with personnel of the USARCS for guidance on 
matters of policy or relating to the implementation of this part.
    (h) Private relief bills. There is no established procedure under 
which DA sponsors private relief legislation; this is a matter between 
an individual and his or her congressman. Claims personnel will remain 
neutral in private relief matters. No statement should be made that 
purports to reflect a DA position on a private relief bill.


Sec. 536.10  Guidance concerning disclosure of information and 
assistance.

    (a) Conflict of interest. Government personnel are forbidden to 
represent any claimant or to receive any payment or gratuity for 
services rendered. They may not accept any share or interest in a claim 
or assist in its presentation, under penalty of Federal criminal law 
(18 U.S.C. 203, and 205).
    (b) Release of information. (1) Government personnel are prohibited 
from disclosing information that may be the basis of a claim or any 
evidence of record in any claims matter except as authorized by 
statutory or regulatory authority. Certain documents which would 
normally be privileged or exempt from release, such as unclassified 
statements, documents containing opinions, conclusions, or findings, 
may be released to a claimant or his or her attorney, wherever release 
may help settle a claim or avoid unnecessary litigation, unless such 
release is barred by statute.
    (2) All requests for records and information made pursuant to the 
Freedom of Information Act (FOIA) or the Privacy Act (PA) will be 
processed in accordance with the procedures set forth in AR 25-55 or AR 
340-21. Requests submitted by a claimant or his or her attorney, which 
cite only the FOIA, will be processed under the time limits of the FOIA 
and the exceptions and fees of the PA and FOIA, as required by AR 25-
55, paragraph 1-512c. Except for medical quality assurance records 
exempt from disclosure by 10 U.S.C. records protected by the Privacy 
Act of 1974, records within a category for which withholding of the 
record is discretionary (AR 25-55, paragraph 3-101) may be released to 
a claimant or his or her attorney, if no legitimate purpose exists for 
withholding it.
    (3) When it is determined that exempt information should not be 
released, the request will be forwarded to USARCS. For requests 
processed only under the FOIA, the commander, USARCS, may deny release 
of the records, acting on behalf of TJAG, the initial denial authority. 
The commander, USARCS will forward to TJAG all requests processed under 
the FOIA and PA. TJAG is the initial denial authority for PA requests 
(AR 340-21, paragraph 1-7i).
    (c) Claims assistance. The foregoing prohibitions do not apply to 
information and assistance provided in the performance of official 
duty. Any person who indicates a desire to file a claim against the 
United States cognizable under one of the subparts of this part will be 
instructed concerning the procedure to follow. The claimant will be 
furnished claim forms and, when necessary, will be assisted in 
completing claim forms and assembling evidence. He or she will not be 
assisted in determining what amount to claim. In the vicinity of a 
field exercise, maneuver, or disaster, information may be disseminated 
concerning the right to present claims, the procedure to be followed, 
and the names and location of claims officers and engineer repair 
teams. When the government of a foreign country in which U.S. Armed 
Forces are stationed has assumed responsibility for the settlement of 
certain claims against the United States, officials of that country 
will be furnished pertinent information and evidence so far as security 
considerations permit.


Sec. 536.11  Single-service claims responsibility (DODD 5515.8).

    (a) Statutes and agreements. DOD has assigned single-service 
responsibility for the settlement of claims in certain countries under 
the following statutes and agreements:
    (1) FCA (10 U.S.C. 2734); DODD 5515.3, Settlement of Claims under 
10 U.S.C. 2733 and 2734.
    (2) MCA (10 U.S.C. 2733); DODD 5515.3, Settlement of Claims under 
10 U.S.C. 2733 and 2734.
    (3) 10 U.S.C. 2734a and 2734b, pro rata cost-sharing of claims 
pursuant to international agreements.
    (4) NATO SOFA (4 UST 1792, TIAS 2846) and other similar agreements.
    (5) Act of September 25, 1962 (42 U.S.C. 2651-2653), Claims for 
Reimbursement for Medical Care Furnished by the United States.
    (6) 10 U.S.C. 2737, claims not cognizable under any other provision 
of law.
    (7) The Federal Claims Collection Act (31 U.S.C. 3711-3719), as 
implemented by DODD 7045.13; the Act of June 10, 1921 (31 U.S.C. 71), 
claims and demands by the Government of the United States.
    (8) 10 U.S.C. 2736, Advance Payments.
    (b) Specified foreign countries. Responsibility for the settlement 
of claims cognizable under the laws listed in paragraph (a) of this 
section in the following countries has been assigned to military 
departments as follows:
    (1) Department of the Army: Austria, Belgium, El Salvador, France, 
Federal Republic of Germany, Grenada, Honduras, and Korea, the Marshall 
Islands and Switzerland.
    (2) Department of the Navy: Bahrain, Iceland, Israel, Italy, 
Portugal, and Tunisia.
    (3) Department of the Air Force: Australia, Azores, Canada, Cyprus, 
Denmark, Egypt, Greece, India, Israel, Japan, Luxembourg, Morocco, 
Nepal, the Netherlands, Norway, Oman, Pakistan, Saudi Arabia, Spain, 
Turkey, United Kingdom.
    (4) Except when they arise in countries for which single-service 
responsibility is assigned in paragraphs (b)(1), (2), and (3) of this 
section, single-service claims responsibility for claims involving, or 
generated by the U.S. Central Command or units assigned or attached 
thereto, is assigned to the Department of the Air Force. The addresses 
of United States sending State offices and single-service offices are 
contained in DA Pam 27-162, figure P7-1.
    (c) When claims responsibility has not been assigned. On an interim 
basis prior to receiving confirmation and approval from the appropriate 
office in DOD, the appropriate unified commander may, when necessary to 
implement contingency plans, assign single-service responsibility for 
processing claims in countries where such assignment has not already 
been made.


Sec. 536.12  Cross-servicing of claims (DODD 5515.3).

    (a) Where another military department has single-service claims 
responsibility. Claims, claims by and against the United States 
resulting from Army activities or caused by members or employees of the 
DA in a country where another department has been assigned single-
service claims responsibility will be investigated by the Army and 
referred to that department for settlement.
    (b) Where claims responsibility has not been assigned. Claims, 
claims cognizable under the FCA or the MCA generated by another 
military department in a foreign country where single-service claims 
responsibility has not been assigned may, upon request of the 
department concerned, be settled by the Army. Conversely, Army claims 
may, in appropriate cases, be referred to another department for 
settlement.
    (c) Claims generated by the Coast Guard. Claims resulting from 
activities, or generated by members or employees, of the Coast Guard 
while operating as a service of the Department of Transportation may, 
upon request, be settled under this part by a foreign claims commission 
appointed as authorized herein, but will be paid from appropriations of 
the Coast Guard (10 U.S.C. 2734(g) and 2734a(c)).

Subpart B--Investigation and Processing of Claims Investigation


Sec. 536.13  Importance of the claims investigation.

    Because evidence developed during an investigation provides the 
basis for every subsequent step in the administrative settlement of a 
claim or the defense of a lawsuit, a prompt and thorough investigation 
will be conducted on all potential and actual claims for or against the 
government. Adverse as well as favorable information must be collected 
and recorded and the legal and factual findings of the claims JA/
attorney must be preserved in the format specified in Sec. 536.22.


Sec. 536.14  Reasons for investigation.

    (a) The investigation is performed to ascertain the facts of an 
incident. Which facts are relevant will often depend on the law and 
regulations applicable to the conduct of the parties involved, but as 
general guidance, the investigation should develop definitive answers 
to such questions as ``When,'' ``Where,'' ``Who,'' ``What,'' and 
``How.'' Generally, the time, place, persons, and circumstances 
involved in an incident may be established by a simple report, but the 
cause and the resulting damage may require extensive effort to obtain 
all the pertinent facts.
    (b) The object of the investigation is to gather, with the least 
possible delay, the best available evidence without accumulating 
excessive evidence concerning any particular fact. The claimant is 
often an excellent source of such information and should be contacted 
early in the investigation. The investigative file should include 
medical records, witness interviews, photographs, and expert opinions.


Sec. 536.15  Immediate investigation requirement.

    (a) Immediate investigation of an incident is required when--
    (1) Property other than Government property is damaged, lost, or 
destroyed. Damage resulting directly or indirectly from combat need 
only be investigated to the extent necessary to confirm that the combat 
exclusion of the appropriate statute is applicable.
    (2) Government property is damaged, lost, or destroyed under 
circumstances that may give rise to a claim in favor of the Government 
under subpart N.
    (3) The incident results in injury to or death of, any civilian 
other than to a civilian of the Army while in performance of duty an 
employee of the United States or its instrumentalities while acting 
within the scope of their employment. For deaths or injuries resulting 
directly or indirectly from combat activities of our forces, the 
investigation merely has to develop sufficient information to verify 
that the combat exception of the appropriate claims statute is 
applicable.
    (4) A claim is made.
    (5) Investigation is requested by another armed service of the 
United States.
    (6) A member of the uniformed services, a dependent, or any other 
person who is eligible for medical care at Army medical treatment 
facilities is injured under circumstances that permit recovery of the 
cost of hospital and medical care under subpart N.
    (7) An incident occurs in CONUS involving foreign nationals who are 
members of a foreign military force or civilian components of parties 
to the Agreement Regarding the Status of Forces of Parties to the North 
Atlantic Treaty, resulting in personal injury, death, or property 
damage (subpart G).
    (8) A patient, other than potential claimants excluded by 
Sec. 536.51(j), Sec. 536.75(r) through (t) and Sec. 536.95, while under 
treatment by the Army Medical Service, dies, is injured, or otherwise 
disabled physically, mentally, or emotionally due to--
    (i) A medical or surgical accident; or
    (ii) Care that does not meet standards for non-Government 
facilities similar to the Army facility providing the care; or
    (iii) An incident that could give rise to a claim against the 
United States under this part; or
    (9) Competent authority so directs.
    (b) Investigation by a claims officer is required when the 
situation or consequences described in paragraphs (a) (1) through (4), 
and (a)(9) of this section arise from activities of the ARNG or its 
personnel.
    (c) Claims arising out of situations that may be expected to 
generate a substantial number of claims in a short period of time and 
are properly cognizable for settlement under this regulation (such as 
maneuvers or other special operations, emergencies, civil disturbances, 
aircraft and missile accidents, or disasters) will be investigated in 
accordance with procedures set forth herein by the claims office 
responsible for the area in which the incident occurred. No claim 
arising out of such an emergency situation will be paid until the 
concurrence of the Commander, USARCS has been obtained. (See 
Sec. 536.8(c)(4)(iii)).
    (d) Where an accident occurs that could only result in a claim 
against the United States that is not payable because of the incident 
to service rule, for example, barred by the Feres Doctrine, or the 
Federal Employees' Compensation Act (FECA), or the Longshoremen's and 
Harborworkers Compensation Act (LHWCA), the investigation may be 
limited to that necessary to make such a determination. However, claims 
officials will ensure that the appropriate commander or organization 
safety office is aware of the incident so that measures to avoid a 
recurrence can be pursued.


Sec. 536.16  Unit claims officers.

    (a) Commanders' responsibility. Commanders and heads of DA and DOD 
components whose personnel, equipment or operations are involved in an 
incident giving rise to a potential or actual claim for or against the 
government (see Sec. 536.15(a)), will appoint a commissioned officer, a 
warrant officer or a qualified civilian employee to conduct an initial 
factual investigation of the incident.
    (1) Installation commanders, brigade commanders, commanders of 
separate battalions, state ARNG Adjutant Generals and other commanders 
whose operations may generate a significant number of claims should 
consider appointing a claims officer on standing orders to facilitate 
training and coordination with the claims JA/attorney supporting the 
unit.
    (2) Senior noncommissioned officers (E6 thru E9) may be appointed 
as assistant claims officers to perform duties under the supervision of 
a claims officer.
    (3) Claims officer appointment orders should designate the claims 
JA/attorney who supports the unit as the claims officer's legal 
advisor. The orders will direct the claims officer to seek guidance 
from the claims JA/attorney at the outset of the investigation and 
before completion of the investigation whenever the potential value of 
the claim is in excess of $15,000 or an actual claim in excess of that 
amount has been filed.
    (4) The scope and duration of the investigation will depend on the 
severity and complexity of the incident and may range from merely 
obtaining investigation reports already prepared by police and other 
investigators to a formal investigation by a board of officers under 
the provisions of chapter 5, AR 15-6. In addition to the provisions of 
this chapter, claims officers will follow the guidance in Chapter 5, DA 
PAM 27-162 and the advice of the claims JA/attorney listed as their 
advisor.
    (5) Unit claims officers, in addition to making a report of 
investigation as specified in Sec. 536.16(b), will account for and 
preserve all available evidence for use in future litigation. Evidence 
will be retained until released by the claims JA/attorney. Therefore, 
the claims officer will consult with the claims JA/attorney before 
disposal, destruction or repair of damaged property or other evidence. 
The claims officer will also act as the claims JA/attorney's point of 
contact for support and assistance from the unit.
    (6) Claims officers must coordinate their work with concurrent 
criminal and safety investigations, which have priority within DA for 
access to accident sites and witnesses (see paragraph 1-4d, AR 15-6 and 
paragraphs 4-8a(2), 5-1a(1) and 5-4 AR 385-40). To the greatest extent 
possible claims officers should take advantage of the work already done 
on these other investigations (see Sec. 536.19 of this part). Although 
there are limits on the information safety personnel can release to 
claims officers, some of the information in safety reports can be 
released (see paragraphs 1-10 and 5-6, AR 385-40).
    (b) Report of claims officer. (1) Format. The claims officer will 
prepare a written report of investigation on DA Form 1208 (Report of 
Claims Officer), except that no recommendation on disposition of 
prospective claims will be entered in block 11. Where a formal 
investigation is conducted in accordance with the procedures in chapter 
5, AR 15-6, the report may be submitted on DA Form 1574 (Report of 
Proceedings by Investigating Officer/Board of Officers). If the claims 
officer does not feel either form is appropriate, the claims JA/
attorney advising the claims officer will be consulted for guidance.
    (2) Processing. The report should normally be completed and 
submitted to the appointing authority within 60 days of the accident/
incident. If a final report will not be completed within that time one 
or more interim reports may be required by the commander or claims JA/
attorney. The appointing authority will either return the report for 
further investigation or, if satisfied that it is as complete as 
possible given the information available, forward one copy of the 
report to the appropriate claims office with or without comment.
    (3) Content. The report will contain findings of fact concerning 
the incident, to include the circumstances leading to the incident 
(e.g. training and experience of Army personnel involved) and the 
resulting property damage and/or injuries. These findings should be 
based on the evidence reasonably available within the time available 
for completion of the report. See chapter 5, DA PAM 27-162 for guidance 
on the information needed in the most common types of claims incidents.
    (4) Limits on findings. The unit claims officers will not make 
findings concerning questions of liability or attempt to assess a 
dollar value on personal injuries. The findings should merely state the 
facts (who, what, where, when, and how). While a clear and complete 
statement of the facts will often make it clear who is responsible for 
the damage or injury, the determination of legal liability and the 
appropriate amount of compensation is the responsibility of the claims 
JA/attorney or the courts.
    (5) Use and release of information. The report of this initial 
investigation may be used in conjunction with any administrative or 
legal action within DOD, such as line of duty investigations, reports 
of surveys, disciplinary actions under the Uniform Code of Military 
Justice or civilian personnel regulations, contract actions, or the 
collateral investigation of an Army accident required by paragraph 1-
7c, AR 385-40. It may also be used by the commander or the unit's 
safety officers as the basis for their safety report (DA Forms 285 and 
285-1) when a centralized accident investigation or separate safety 
investigation is not conducted. It may be released to the public, to 
law enforcement personnel, state and federal regulatory agencies and 
other non-DOD entities subject to the provisions of the Freedom of 
Information Act and the Privacy Act.
    (6) Disposition of reports. The claims processing office or area 
claims office having jurisdiction over the type of claim involved will 
retain the claims officer's report until a claim is received or until 
six months after the time for filing a claim is past. If no claim is 
filed within the statutory limit, the report will be disposed of as an 
organizational record in accordance with AR 25-400-2.
    (c) If an incident occurs, or a claim is filed, in a foreign 
country where no appropriate commander is located, investigative 
assistance may be sought from the Defense Attache or the Military 
Assistance and Advisory Group (MAAG). Incidents involving Attache or 
MAAG personnel, and claims arising from their activities, will be 
investigated in accordance with DIAM 100-1B, volume 1, section T, 
chapter 1, or AR 175, chapter 6, as appropriate.
    (d) Under the provisions of DODD 5515.9 the Commander, USARCS, or 
designee, may request assistance from DOD components whose personnel 
are involved in incidents generating claims in the investigation of 
such claims, and may appoint DOD personnel as claims officers for the 
purpose of conducting such investigations.


Sec. 536.17  Claims office responsibility.

    (a) The claims JA/attorney receiving notice of an incident 
requiring investigation will immediately refer it to the appropriate 
claims officer and will notify, the Commander, USARCS of all major 
incidents involving serious injury of death, or where non Federal 
property damage exceeds $25,000. In some cases the claims JA/attorney 
assigned to the case may decide that a unit claims officer 
investigation is not necessary and waive the requirement.
    (b) The heads of area claims offices and the chiefs of command 
claims services are responsible for ensuring that a prompt and thorough 
claims investigation is conducted of all claims for or against the Army 
arising in their area before they take or recommend final action on a 
claim. The investigation of incidents and claims arising out of the 
activities of the Corps of Engineers (COE) is the responsibility of the 
appropriate COE district or division Counsel. On claims in excess of 
$25,000, the claims JA/attorney assigned to the case should consult 
with the action officer at USARCS on the extent of the investigation 
(see Sec. 536.21).
    (c) The initial investigation by the unit claims officer is 
supposed to be completed promptly after the accident and may not be 
sufficient for final resolution of the claim. The unit's investigation 
will often be completed before a formal claim is filed and before all 
information about the full extent of the damages is available. An 
interview of the claimant may not have been possible or advisable. New 
information submitted with the claim may require further investigation. 
The more extensive investigation usually required for final action on a 
claim will often require the use of not just unit claims officers but 
also claims JA's/attorneys and investigators within the area claims 
office, experts within and from outside DOD and personnel from USARCS.


Sec. 536.18  Transfer of Responsibility.

    (a) Transfer of responsibility is authorized when the investigation 
may be more practicably conducted or completed by the claims officer of 
another installation or unit. When two or more commands are involved, 
the common superior commander or the Commander, USARCS will decide who 
will conduct the investigation. The commanding officer whose personnel 
or equipment is involved will furnish to the authority responsible for 
conducting the investigation all available information concerning the 
incident.
    (b) Transfer will be accomplished by direct transmittal of a report 
of the incident in writing, with all available evidence (or orally, 
later confirmed in writing).
    (c) When more than one Federal agency is or may be involved, the 
claims office receiving the claim will contact, at the field level, all 
other affected agencies in order to obtain the designation of a single 
agency to investigate and determine the merits of the claim. If such a 
designation cannot be agreed upon, USARCS will be notified in order to 
attempt to resolve the matter at agency level or to request the 
Department of Justice to make a designation. If the DA is the 
designated agency, the claimant will be notified to correspond only 
with the DA. This is not to be construed to preclude assistance in the 
investigation from other Federal agencies.
    (d) If a claim is received that arises solely out of the activities 
of another Federal agency, the claim will be transferred to such agency 
and the claimant notified of such transfer. If the appropriate agency 
cannot be identified, the claim will be returned to the claimant 
informing him or her of this fact.
    (e) When an incident occurs where the Army has no unit or 
installation conveniently located for conducting an investigation, but 
another U.S. military department does have an installation or unit in 
the vicinity, the responsible officer may request the commanding 
officer or commander of any organization of another U.S. military 
department to conduct or assist in the investigation. Similar requests 
from another military department will be honored if possible.


Sec. 536.19  Investigation procedures.

    (a) General. A claims investigator will be guided by policies, 
procedures, and guidance set forth in DA Pam 27-162 or furnished by the 
Commander, USARCS. For other than routine incidents, guidance should be 
obtained from the claims approval or settlement authority who will have 
jurisdiction based on the probable value of the largest single claim 
arising from the incident. The extent and nature of the investigation 
should be guided by the specific requirement of the situation. If it is 
considered in the best interest of the Government, the Commander, 
USARCS, or the chief of a command claims service, may grant authority 
to deviate from the specific requirements contained in this part in a 
particular investigation, except as to procedures that are based on 
statute or have the force of law.
    (b) Information from other investigations.
    (1) The investigator should obtain a copy of the report of any 
prior investigation that was made for purposes other than claims; for 
example--
    (i) Police reports.
    (ii) Line of duty reports.
    (iii) AR 15-6 investigations.
    (iv) Reports of survey.
    (v) IG investigations.
    (vi) Safety investigations.
    (vii) Government contractor investigations.
    (viii) Investigations by other governmental agencies such as 
National Transportation Safety Board; Food and Drug Administration; 
Center for Disease Control; Bureau of Alcohol, Tobacco, and Firearms; 
and Consumer Product Safety Commission.
    (2) While such an investigation may not be adequate for claims and 
litigation purposes, it may contain evidence and leads of value to the 
investigator. If the report of the prior investigation contains 
diagrams, photographs, or witness statements, it is not necessary for 
the investigator to cover the same ground. Copies of such items may be 
made and included in the claims investigation. Generally, however, it 
will be necessary for the investigator to obtain more complete 
statements from witnesses. This is especially true for statements in 
medical quality assurance reports and reports of Army accidents 
prepared by Army safety personnel, as there are regulatory restrictions 
on the use of these statements in connection with claims and 
litigation.
    (3) When military records fail to confirm the occurrence of a 
traffic accident upon which a claim is based, or substantial doubt 
arises regarding the nature or extent of the actual damages or injuries 
allegedly sustained, claims authorities should contact the Bureau of 
Motor Vehicles of the appropriate State or municipality to ascertain 
whether an accident report of the incident is a matter of record and, 
if so, a copy of such report should be obtained.
    (c) Statements of witnesses. Perhaps the most important phase of an 
investigation is the securing of statements from available witnesses, 
including the claimant and persons associated with him or her, for 
example, persons riding in the vehicle. The claims investigator may 
take the unsworn statements of a witness or may, if the statement is 
satisfactory for claims purposes, use a statement secured by another 
investigator.
    (d) Photographs and diagrams. Claims investigators should have 
cameras and obtain photographs and diagrams to describe the scene of 
incidents that they investigate. Photographs and drawings should 
indicate when taken or made and by whom.
    (e) Claims requiring information of a specialized nature. Depending 
on the nature of the incident, the investigator must decide on the 
specialized nature of evidence that will be required. In this regard, 
reference should be made to DA Pam 27-162 wherein specific items of 
information and documentation required for various categories of 
incidents are listed. Sufficient documentation of property losses or 
damages and personal injury or death should be obtained. Technical 
advice and assistance will be furnished by other DA agencies such as 
the Tank and Automotive Command or the Army Safety Center for vehicular 
accidents, or the Army Aviation Reserve Board and the Corpus Christi 
Army Depot for aircraft accidents.
    (f) Completion of investigation. Upon completion of the 
investigation, the investigator must carefully review the report to 
ascertain whether all pertinent information has been included and 
inconsistencies reconciled. The review should take into consideration 
the following questions: Is the report of investigation complete enough 
to enable the approving authority to decide how the incident occurred? 
On whom does the responsibility for the incident rest? What is the 
extent of any loss or damage suffered? In the ordinary case, if the 
investigator has included in the report all information pertaining to 
the ``what,'' ``who,'' ``where,'' ``when,'' and ``how'' of the 
occurrence, the information needed by those who must decide the claim 
will be satisfied.

Claims Receipt and Disposition
Sec. 536.20  Presentation.
    (a) Who may present. (1) A claim may be presented by the owner of 
the property, or in the owner's name by a duly authorized agent or 
legal representative. As used in this regulation an owner includes the 
following:
    (i) For real property. The mortgagor, or the mortgagee, if he or 
she can maintain a cause of action in the local courts involving a tort 
to that specific property. When notice of divided interests in real 
property is received, the claim should, if feasible, be treated as a 
single claim or a release from all interests must be obtained.
    (ii) For personal property. A bailee, leasee, mortgagee, and 
conditional vendor, or others having title for purposes of security 
only, are not proper claimants unless specifically authorized in the 
subpart in question. If more than one party has an interest in the 
property, all must join in the claim or a release from all interests 
must be obtained.
    (2) A claim for personal injury may be presented by the injured 
person or by a duly authorized agent or legal representative.
    (3) A claim based on death may be presented by the executor or 
administrator of the deceased's estate, or by any person determined to 
be legally or beneficially entitled. The amount allowed will, to the 
extent practicable, be apportioned among the beneficiaries in 
accordance with the law applicable to the incident.
    (4) A claim for medical, hospital, or burial expenses may be 
presented by any person who by reason of family relationship has, in 
fact, incurred the expenses for which the claim is made. For claims 
cognizable under the provisions of the FTCA, see subpart D. (See 
Sec. 536.86 for restrictions on damages allowable in claims involving 
death or personal injury under the Act of 9 October 1962 (10 U.S.C. 
2737).)
    (5) A claim presented by an agent or legal representative will be 
made in the name of the claimant and signed by the agent or legal 
representative showing his or her title or capacity. Where a claim is 
presented by an agent or legal representative--
    (i) Written evidence of the authority of the agent or legal 
representative to act, such as a power of attorney, is required, or
    (ii) Where the authority is conferred by State statute, a citation 
to that statute is required. (See DA Pam 27-162, appendix H, section I, 
paragraph 14-2; see also Sec. 536.21 for additional requirements 
relating to settlements.)
    (6) A claim normally will include all damages that accrue by reason 
of the incident. Where the same claimant has both a claim for damage to 
or loss of property and a claim for personal injury or claim based on 
death arising out of the same incident, each of the foregoing or any 
combination of them ordinarily represent only an integral part of a 
single claim or cause of action. Under subparts C through J of this 
part, a single claimant is entitled to be compensated only one time for 
all damages or injuries arising out of an incident.
    (b) Subrogation. A claim may be presented by the subrogee in his or 
her own name if authorized by the law of the place where the incident 
giving rise to the claim occurred, provided subrogation is not barred 
by the portion of this part applicable to the type of claim involved.
    (1) The claims of the subrogor (insured) and subrogee (insurer) for 
damages arising out of the same incident constitute separate claims and 
it is permissible for the aggregate of such claims to exceed the 
monetary jurisdiction of the approving or settlement authority.
    (2) A subrogor and a subrogee may file a claim jointly or 
individually. A fully subrogated claim will be paid only to the 
subrogee. Whether a claim is fully subrogated is a matter to be 
determined by local law. Some jurisdictions permit the property owner 
to file for property damage even though he or she has been compensated 
for the repairs by his or her insurer. In such instances a release 
should be obtained from both parties in interest or be released by both 
of them. The approved payment in a joint claim will be by joint check 
that will be sent to the subrogee unless both parties specify 
otherwise. If separate claims are filed, payment will be by check 
issued to each claimant to the extent of his or her undisputed 
interest.
    (3) Where a claimant has made an election and accepted workmen's 
compensation benefits, both statutory and case law of the jurisdiction 
should be scrutinized to determine to what extent the claim of the 
injured party against third parties has been extinguished by acceptance 
of compensation benefits. While it is infrequent that the claim is 
fully extinguished and where it is not, the only proper party claimant 
is the workmen's compensation carrier. Even where the injured party's 
claim has not been fully extinguished, most jurisdictions provide that 
the compensation insurance carrier has a lien on any recovery from the 
third party and no settlement should be reached without approval by the 
carrier where required by local law (19 American Law Reports (ALR) 766, 
supplemented by 27 ALR 493, 37 ALR 838, 67 ALR 249, 88 ALR 665, and 106 
ALR 1040). Also, claims from the workmen's compensation carrier as 
subrogee or otherwise will not be considered payable where the United
States has paid the premiums, directly or indirectly for the workmen's 
compensation insurance. Applicable contract provisions holding the 
United States harmless should be used.
    (4) Whether medical payments paid by an insurer to its insured can 
be subrogated depends on local law. Some jurisdictions prohibit these 
claims to be submitted by the insurer notwithstanding a contractual 
provision providing for subrogation. Therefore, local law should be 
researched prior to deciding the issue, and claims forwarded to higher 
headquarters for adjudication should contain the results of said 
research. Such claims, where prohibited by State law, will also be 
barred by the Antiassignment Act. (See paragraph (c) of this section).
    (5) Care will be exercised to require insurance disclosure 
consistent with the type of incident generating the claim. Every 
claimant will, as a part of the claim, make a written disclosure 
concerning insurance coverage as to--
    (i) The name and address of every insurer;
    (ii) The kind and amount of insurance;
    (iii) Policy number;
    (iv) Whether a claim has been or will be presented to an insurer, 
and if so, the amount of such claim; and
    (v) Whether the insurer has paid the claim in whole or has 
indicated payment will be made.
    (vi) Each subrogee must substantiate his or her interest or right 
to file a claim by appropriate documentary evidence and should support 
the claim as to liability and measure of damages in the same manner as 
required of any other claimant. Documentary evidence of payment to 
subrogor does not constitute evidence either of liability of the 
Government or of the amount of damages. Approving and settlement 
authorities will make independent determinations upon the evidence of 
record and the law.
    (vii) Subrogated claims are not cognizable under subparts E, J or 
K.
    (c) Transfer and assignments.
    (1) Except as they occur by operation of law or after a voucher for 
the payment has been issued, unless within the exceptions set forth by 
statute (31 U.S.C. 3727 and AR 37-107), the following are null and 
void:
    (i) Every purported transfer or assignment of a claim against the 
United States, or of any part of or interest in a claim, whether 
absolute or conditional.
    (ii) Every power of attorney or other purported authority to 
receive payment of all or part of any such claim.
    (2) The purposes of the Antiassignment Act are to eliminate 
multiple payment of claims, to cause the United States to deal only 
with original parties, and to prevent persons of influence from 
purchasing claims against the United States.
    (3) In general, this statute prohibits voluntary assignments of 
claims with the exception of transfers or assignments made by operation 
of law. The operation of law exception has been held to apply to claims 
passing to assignees because of bankruptcy proceedings, assignments for 
the benefit of creditors, corporate liquidations, consolidations or 
reorganizations, and where title passes by operation of law to heirs or 
legatees. Subrogated claims that arise under a statute are not barred 
by the Antiassignment Act. For example, subrogated workmen's 
compensation claims are cognizable when presented by the insurer.
    (4) Subrogated claims that arise pursuant to contractual provisions 
may be paid to the subrogee if the subrogated claim is recognized by 
State statute or decision. For example, an insurer under an automobile 
insurance policy becomes subrogated to the rights of a claimant upon 
payment of a property damage claim. Generally, such subrogated claims 
are authorized by State law and are therefore not barred by the 
Antiassignment Act.
    (5) Before claims are paid, it is necessary to determine whether 
there may be a valid subrogated claim under Federal or State statute or 
subrogation contract held valid by State law. If there may be a valid 
subrogated claim forthcoming, payment should be withheld for this 
portion of the claim. If it is determined that claimant is the only 
proper party, full settlement is authorized.
    (d) Action by claimant. (1) Form of claim. (i) The claimant will 
submit his or her claim using authorized official forms whenever 
practicable. A claim is filed only when the vital elements (see 
Appendix B to this part) have been supplied in writing by a person 
authorized to present a claim (paragraph (a) of this section) unless 
the claim is cognizable under a subpart that specifies otherwise.
    (ii) A claim may be amended by the claimant at any time prior to 
final agency action or prior to the exercise of the claimant's option 
under 28 U.S.C. 2675(a).
    (2) Signatures.
    (i) The claim and all other papers should be signed in ink by the 
claimant or his or her duly authorized agent. Such signatures will 
include the first name, middle initial, and surname. A married woman 
should sign her claim in her given name; for example, ``Mary A. Doe.''
    (ii) Where the claimant is represented, the supporting evidence 
required by paragraph (a)(5) of this section will be required only if 
the claim is signed by the agent or legal representative. However, in 
all cases in which a claimant is represented, the name and address of 
the representative will be included in the file together with copies of 
all correspondence and records of conversations and other contacts 
maintained and included in the file. Frequently, these records are 
determinative as to whether the statute of limitations has been tolled.
    (3) Presentation. The claim must be presented to the commanding 
officer of the unit involved; the legal office of the nearest Army 
post, camp, or station; or other military establishment convenient to 
the claimant. In a foreign country where no appropriate commander is 
stationed, the claim may be submitted to any attache of the U.S. Armed 
Forces. (See AR 1-75.) Claims arising overseas which are cognizable 
under Article VIII of the Agreement Regarding the Status of Forces of 
Parties to the North Atlantic Treaty, Treaty of Mutual Cooperation and 
Security Between the United States of America and Japan Regarding 
Facilities and Areas and the Status of United States Armed Forces in 
Japan or other similar treaty or agreement are filed with designated 
claims officials of the receiving State.
    (e) Evidence to be submitted by claimant. The claimant should 
submit the evidence necessary to substantiate his or her claim. It is 
essential that independent evidence be submitted that will substantiate 
the correctness of the amount claimed.
    (f) Statute of limitations. (1) General. Each statute available to 
the DA for the administrative settlement of claims, except the Maritime 
Claims Settlement Act (10 U.S.C. 4802), specifies the time during which 
the right to file a claim must be exercised. These statutes of 
limitations, which are jurisdictional in nature, are not subject to 
waiver unless the statute expressly provides for waiver. Specific 
information concerning the period for filing under each statute is 
contained in the appropriate implementing subpart of this part.
    (2) When a claim accrues. A claim accrues on the date on which the 
alleged wrongful act or omission results in an actionable injury or 
damage to the claimant or his or her decedent. Exceptions to this 
general rule may exist where the claimant does not know of the injury 
or damage, or does not know the cause of injury or damage. In those 
cases, the claim accrues when the injured party, or someone acting on 
his or her behalf, knows or should know about both the existence and 
cause of the injury. However, this exception does not apply when, at a 
later time, he or she discovers that the acts inflicting the injury may 
constitute medical malpractice. (See United States v. Kubrick, 444 U.S. 
111, 100 S. Ct. 352 (1979).) The discovery rule is not limited to 
medical malpractice claims; it has been applied to diverse situations 
involving violent death, chemical and atomic testing, and erosion and 
hazardous work environment. In claims for indemnity or contribution 
against the United States, the accrual date is the time of payment for 
which indemnity is sought or on which contribution is based.
    (3) Effect of infancy, incompetency, or the filing of suit. The 
statute of limitations for administrative claims is not tolled by 
infancy or incompetency. Likewise, the statute of limitations is not 
tolled for purposes of filing an administrative claim by filing of a 
suit based upon the same incident in a Federal, State, or local court 
against the United States or other parties. (For the effect of filing 
an administrative claim with an agency other than the Army, see 
Sec. 536.53(b), Sec. 536.77(b) and (c) and 536.102)
    (4) Amendment of claims. A claim may be amended by the claimant at 
any time prior to final agency action or prior to the exercise of the 
claimant's option under 28 U.S.C. 2675(a). A claim may be amended by 
changing the amount, the bases of liability, or elements of damages 
concerning the same incident. Parties may be added only if the 
additional party could have filed a joint claim initially in paragraph 
(a)(1) of this section. If the additional party had a separate cause of 
action, his or her claim may not be treated as an amendment but only as 
a separate claim and is thus barred if the statute of limitations has 
run. For example, if a claim is timely filed on behalf of a minor for 
personal injuries, a subsequent claim by a parent for loss of services 
is considered a separate claim and is barred if it is not filed prior 
to the running of the statute of limitations. Another example is where 
a separate claim is filed for loss of services or consortium by a 
spouse arising out of injuries to the husband or wife of the claimant. 
On the other hand, if a claim is timely filed by an insured for the 
deductible portion of his or her property damage, a subsequent claim by 
the insurer based on payment of property damage to its insured may be 
filed as an amendment even though the statute of limitations has run, 
unless final action has been taken on the insured's claim.
    (5) Date of receipt stops the running of the statute. In computing 
the time to determine whether the period of limitation has expired, 
exclude the first day and include the last day, except when it falls on 
a nonworkday such as Saturday, Sunday, or a legal holiday, in which 
case it is to be extended to the next workday.


Sec. 536.21  Disposition of claims.

    (a) General. When a claim is received, the date and the designation 
of the receiving command or office will be stamped or otherwise noted 
on all copies. If the receiving command or office is not responsible 
for the investigation, the claim will be transmitted to the claims 
office of the command or installation concerned.
    (b) By the command concerned. Following completion of the claims 
investigation, the command claims service or claims office responsible 
for the claim may take the following actions on all claims other than 
those for which USARCS has exclusive jurisdiction (see Sec. 536.21(c)).
    (1) If the claim is of a type and amount within the jurisdiction of 
the claims office of the command concerned and the claim in meritorious 
in the amount claimed, it will be approved and paid.
    (2) If a claim in an amount in excess of the monetary jurisdiction 
of the claims office is meritorious in a lesser amount within its 
jurisdiction, the claim may be approved for payment provided the amount 
offered is accepted by the claimant in settlement of the claim.
    (3) If the claim is not of a type within the jurisdiction of the 
claims office, or if the claimant will not accept an amount within its 
jurisdiction, the claim with supporting papers and a recommendation for 
appropriate action will be forwarded to the next higher claims 
authority. Any personnel claim forwarded to a higher authority for 
settlement will be accompanied by a memorandum of opinion. Prior to 
forwarding any tort claim, the USARCS AAO must be consulted and a joint 
decision reached on whether a memorandum of opinion must be submitted.
    (4) If the claim is determined to be not meritorious, it will be 
disapproved provided the claims office has settlement authority for 
claims of the type and amount involved. If the type and amount of the 
claim requires denial by higher authority, the claim will be forwarded 
through claims channels to the appropriate authority accompanied by a 
claims memorandum of opinion recommending denial. Prior to the 
disapproval of a claim under a particular statute, a careful review 
should be made to ensure that the claim is not properly payable under a 
different statute or on another basis.
    (c) Claims within the exclusive jurisdiction of USARCS. Authority 
to settle the type of claims listed below has not been delegated below 
USARCS. Command claim services or area claims offices receiving these 
types of claims will investigate them in accordance with this 
regulation and guidance from USARCS. Regardless of the amount claimed, 
a mirror copy of the claims will be sent to Tort Claims Division, 
USARCS immediately on receipt. Once the investigation is complete, the 
files on these claims should be forwarded directly to USARCS and a 
memorandum of opinion recommending disposition.
    (1) Claims arising in the United States out of the actions of 
members of the force or civilian component of a NATO nation or 
headquarters (subpart G, statutory authority).
    (2) Maritime claims for or against the Army other than those 
arising overseas within the jurisdiction of a command claims service or 
those within the jurisdiction of Corps of Engineers and other specially 
designated claims offices (See subpart H).
    (3) Claims based on the denial of a security clearance by the 
government to civilian employee of defense contractors (DODD 5220.6, 
section 10, paragraph C).
    (4) Claims by the U.S. Postal Service against the Military Postal 
Service Agency.
    (5) In areas where the FTCA is applicable, any claim except those 
under subpart K, arising out of an accident involving a POV driven by a 
member of the Army, or by ARNG personnel defined in subpart F, based on 
an allegation that the POV travel was within the scope of employment. 
On these claims the memorandum of opinion will include a specific 
discussion on the issue of scope of employment under applicable law 
(See chapters 4 and 5, AR 27-40).
    (d) Mirror file requirement. In addition to the claims listed in 
536.21, USARCS is responsible for monitoring the investigation and 
settling the following claims. A copy of these claims and of any claims 
listed in paragraph (c) of this section, will be forwarded immediately 
on receipt to the Commander, USARCS, ATTN: JACS-TCD.
    (1) A case that must be brought to the attention of the Department 
of Justice in accordance with The Attorney General's Regulations (DA 
Pam 27-162, appendix H).
    (2) Any FTCA, MCA, or other tort claim in which the amount claimed 
exceeds $25,000.
    (3) FTCA, MCA or other tort claims arising out of an incident if 
the combined amounts of the claims exceed $25,000.
    (4) A claim within the exclusive jurisdiction of USARCS (see 
paragraph (c) of this section). The field claims office will provide 
USARCS duplicates of all correspondence, records and documents relevant 
to the investigation and processing of the claim as they are added to 
the file. Direct liaison and correspondence between USARCS and the 
field claims authority is authorized and encouraged on these and all 
claims. In addition, heads of area claims offices in CONUS will advise 
the action officer at Tort Claims Division, USARCS who is responsible 
for their geographic area of all potential claims likely to meet the 
criteria in this paragraph or in paragraph (c) of this section, and 
will forward a copy of the investigation file to USARCS on request.
    (e) By higher settlement authority. A higher claims settlement 
authority may take action with respect to a claim in the same manner as 
the initial claims office. However, if it is determined that any 
further attempt to settle the claim would be unwarranted, the claim 
will be forwarded to the Commander, USARCS, with recommendations.
    (f) Claims not cognizable under subparts C through L. If a claim is 
determined not to be cognizable under this regulation, reference to DA 
Pam 27-162, chapter 8 may reveal a basis for compensation or 
consideration by another agency. If so, the claimant will be so 
advised. If, after investigation, it appears that the claim may not be 
settled under any law or regulation, the claim, the related file, and a 
memorandum of opinion will be forwarded through claim channels to the 
Commander, USARCS.
    (g) Blast damage claims. All claims cognizable under subparts C, D 
and F which are based on damage to or loss of property due to 
explosions (for example, artillery firing, aerial bombing, or 
demolition of explosives) will be sent through USARCS to U.S. Army 
Ballistic Research Laboratories (USABRL), Aberdeen Proving Grounds, MD 
21005-5055, for a technical opinion prior to settlement. See DA Pam 27-
162, chapter 5, section IX.


Sec. 536.22  Claims memorandum of opinion.

    (a) Tort Claims memorandum. Unless otherwise agreed between the 
USARCS AAO and the area claims office (see section 536.21(b)(1), the 
contents and arrangement of the Tort Claims memorandum will be as 
follows:
    (1) Part I. Identifying data.
    (i) Name, address, and social security number of all claimants/
plaintiffs.
    (ii) Name, address, and telephone number of attorney.
    (iii) Date and place of incident.
    (iv) Date and amount of claim/ad damnum of complaint.
    (v) Brief (one sentence) description of claim/case.
    (vi) Actual or potential companion claims (nature and status).
    (2) Part II. Jurisdiction. Discuss applicable statute(s), whether 
the claim was timely and properly filed, and other jurisdictional 
matters.
    (3) Part III. Facts. Provide a complete statement of the facts upon 
which the claim and any defense thereto are predicated. In each 
instance in which a fact is supported by documents or witness 
statements in the file, appropriate parenthetical references will be 
inserted into the statement of facts. Subparagraphs with descriptive 
headings will be used if appropriate, for example, background facts or 
facts about the incident.
    (4) Part IV. Legal analysis. List issues related to liability and 
the controlling law with applicable citations. Subparagraphs with 
descriptive headings will be used as appropriate and necessary, for 
example, law controlling factual issues, factual bases for claim as 
related to issues (duty, proximate cause), defenses, existence of joint 
tortfeasors. If the claim is barred by a jurisdictional defense, for 
example, Feres, Federal Employees Compensation Act, statute of 
limitations, this matter will be discussed separately. The position on 
liability will be stated at the end of the section.
    (5) Part V. Damages. Discuss the following in the order listed 
under appropriate subheadings as necessary: Who can claim under 
applicable law, for example, wrongful death; description of injuries 
and treatment; description of property loss and proof thereof; types of 
special damages (such as, loss of earnings, loss of services, past and 
future care); type and nature of non-economic or general damages (use a 
summary in tabular form, as necessary, for special and general 
damages); effect of diminished liability on the value of the claim; 
effect of subrogation.
    (6) Part VI. Proposed settlement or action. Discuss any proposed 
structured settlement. Discuss any prior offers, or negotiations and 
status. If a denial or final offer is indicated, so state.
    (7) Part VII. Recommendation.
    (8) Part VIII. Document and witness list.
    (i) The witness list will include the name, SSAN, telephone number, 
and present and permanent address for each witness or medical reviewer.
    (ii) Identify each document in the file.
    (iii) For all medical malpractice claims, attach DD Form 2526 (Case 
Abstract for Malpractice Claims) as an enclosure. (See paragraph (c) of 
this section for additional instructions.)
    (9) Part IX. Responses to pleadings (for claims in litigation 
only).
    (i) Proposed answer.
    (ii) Defenses.
    (iii) Counterclaims.
    (iv) Crossclaims.
    (v) Dispositive motions (identify and list).
    (b) Personnel Claims memorandum. See Sec. 536.168 for instructions 
on preparing a Personnel Claims memorandum.
    (c) Case abstract for malpractice claims. On all dental and medical 
malpractice claims, claims JAs will attach DD Form 2526 (Case Abstract 
for Malpractice Claims) to all memoranda prepared under paragraph (a) 
of this section, and forward to USARCS. Claims JAs will also submit 
this form to USARCS on all dental and medical malpractice claims 
settled or denied within their local authority. When a claim is 
transferred to USARCS without a forwarding memorandum prepared under 
paragraph (a) of this section, DD Form 2526 must still be completed and 
forwarded within 60 days after the medical records are available for 
review by the MTF/DTF risk manager (RM).
    (1) Claims JAs/MCJAs will coordinate the completion of the form 
pertaining to the Standard of Care, Diagnoses, and Procedures with the 
MTF/DTF RM or the RM's designee. If the RM does not provide this 
information, claims JAs/MCJAs will note the reason and submit the form 
to USARCS. The sections pertaining to Provider Information and Type of 
Provider and Specialty of DD Form 2526 will not be completed on the 
form submitted to USARCS. OTSG will task subordinate commands to 
forward provider information on settled claims.
    (2) Claims JAs are required to submit one DD Form 2526 for each 
incident (course of treatment or nontreatment that results in an 
injury) for which a claim has been filed. Derivative claims do not 
require a separate report. However, separate reports are required when 
claimants allege physical injury to more than one claimant (for 
example, an infant's claim for brain damage as a result of birth trauma 
and a mother's claim for physical injury caused by the delivery would 
require two reports). When a claimant alleges negligent medical care at 
more than one MTF/DTF, USARCS will designate the claims JA who will 
complete the DD Form 2526.
    (d) Subsequent action. It is not necessary for each claims 
authority who considers the claim to write a separate memorandum. If a 
claims approval or settlement authority agrees with the memorandum of 
opinion written by another authority, he or she can adopt the earlier 
memorandum by merely stating that he or she concurs in the adopted 
memorandum and stating the nature of the action. If there is 
disagreement, in whole or in part, with the earlier memorandum, such 
disagreement should be stated and reasons therefor set forth in a 
separate memorandum or in an addendum. The approval or settlement 
authority will personally sign the action, indicating position title.


Sec. 536.23  Actions.

    The following actions may be taken as appropriate:
    (a) Transmittal of the claim to the appropriate claims office for 
proposed disposition.
    (b) Disapproval of the claim provided the person signing the action 
is a settlement authority. (See appendix B to this part).
    (c) Final offer. (See appendix B to this part).
    (d) Approval and certification of the claim for payment.
    (1) SF 1034 (Public Voucher for Purchases and Services Other Than 
Personal) will be used on all claims settled under this part except 
claims settled under subpart D which will be paid utilizing an SF 1145 
(Voucher for Payment Under the Federal Tort Claims Act). (See 
Sec. 536.35(a)(1) for exceptions.)
    (2) When an SF 1034 is to be paid by the GAO, the certification 
block of the SF 1034 will not be signed by Army Officials. GAO 
officials will certify any payment made by that agency. (See 
Sec. 536.35(a)(1) for exceptions.)
    (3) Payment of a claim under subpart D in excess of $2,500 is 
obtained by forwarding necessary documentation to the GAO. Complete 
information on the requirements to effect such payments are set forth 
in Sec. 536.35(b). Note that the approval or settlement authority signs 
only the approval block (lower left) of the SF 1145 before submitting a 
claim to the GAO for payment.
    (e) Subsequent action. See Sec. 536.22(d).

Liability and Quantum Determinations


Sec. 536.24  General considerations.

    (a) Liability. In the adjudication of tort claims arising in the 
United States, the liability of the United States generally is 
determined in accordance with the law of the state or country where the 
act or omission occurred, except that any conflict between local law 
and an applicable United States statute will be resolved in favor of 
the latter. However, in claims arising in foreign countries, liability 
may be based in whole or in part on local law or as otherwise provided 
in subpart C for settlements of claims of United States inhabitants 
arising overseas under the Military Claims Act. (See Sec. 536.55(c).) 
Where liability is not clear or other issues exist, settlements should 
truly reflect the uncertainties in the adjudication of such issues. 
Compromise settlements are encouraged provided agreement can be reached 
that reflects the reduced value of the damages as measured against the 
full value or range of value if such uncertainties or issues did not 
exist and were it possible for the claimant to successfully litigate 
the claim.
    (b) Quantum exclusion. The costs of filing a claim and similar 
costs (for example, court costs, bail, interest, inconvenience 
expenses, or costs of long distance telephone calls or transportation 
in connection with the preparation of a claim) are not proper quantum 
elements and will not be allowed.
    (c) Property damage. Property damage compensable under the tort 
claims provisions of this part means damage to tangible real or 
personal property (see glossary). It does not include mere diminution 
of value of real property unless there is some corresponding physical 
damage to the property, nor does it include damage to reputation, 
employment rights or constitutional rights. Other remedies may be 
available for such injuries but they are generally not cognizable under 
the FTCA, MCA, FCA or the Maritime Claims Settlement Act.


Sec. 536.25  Incident to service exclusionary rule.

    (a) General. A claim for personal injury or death of a member of 
the armed forces of the United States or a civilian employee of the 
United States that accrued incident to his or her service is not 
payable under this part. A property damage claim that accrued incident 
to the service of a member of the Armed Forces may be payable under 31 
U.S.C. 3721 (subpart K) or the MCA (subpart C), depending on the facts.
    (b) Property damage claims. A claim for damage to or loss of 
personal property of a claimant who is within one of the categories of 
proper party claimants listed in Sec. 536.163, which is otherwise 
cognizable under Sec. 536.164, must first be considered thereunder. If 
a claim is not clearly compensable under subpart K, and it arises 
incident to a noncombat activity of the DA or was caused by a negligent 
or wrongful act or omission of military personnel or civilian employees 
of DOD, it may be cognizable under either the MCA or the FTCA. The 
claim, if meritorious in fact, will probably be payable under one 
authorization or another regardless of whether the claim accrued 
incident to the service of the claimant.
    (c) Personal injury and death claims. (1) Only after the death or 
personal injury has been determined to have not been incurred incident 
to the member's service should subparts C and D be studied to determine 
which, if either, provides a proper basis for settlement of the claim. 
In any event, the rule in U.S. v. Brooks, 176 F.2d 482 (4th Cir. 1949) 
requiring setoff of amounts obtained though military or veterans' 
compensation systems against amounts otherwise recoverable will be 
followed. Other Government benefits funded by general Treasury 
revenues, not by the claimant's contributions, may also be used as a 
setoff against the settlement, for example, Overton v. United States, 
619 F.2d 1299 (8th Cir. 1980).
    (2) As the incident to service issue is determinative as to whether 
this type of claim may be processed administratively, the applicable 
law and facts should be carefully considered before deciding that 
injury or death was not incident to service. Such claims also are often 
difficult to settle on the issue of quantum and thus more likely to end 
in litigation. Moreover, the United States may well elect to defend the 
lawsuit on the basis of the incident to service exclusion and this 
defense could be prejudiced by a contrary administrative determination 
that a service member's personal injuries or death were not incident to 
service. Doubtful cases will be forwarded to the Commander, USARCS 
without action along with sufficient factual information to permit a 
determination of the incident to service question.


Sec. 536.26  Property damage appraisers.

    (a) Appraisers will be used as follows:
    (1) Appraisers should be used in all claims where an appraisal is 
reasonably necessary and useful in effectuating the administrative 
settlement of the claim. Appraisals may not be economically feasible in 
some cases involving property damage of less than $100 per item and the 
extent of damage may be determined by personal inspection and agreement 
with the claimant.
    (2) Where an appraisal is considered necessary, the claims officer 
and claimant should mutually agree, whenever possible, upon a 
disinterested appraiser after determining the approximate cost of the 
appraisal. The method of payment should be agreed upon in advance.
    (i) If the claimant pays for the appraisal and can substantiate 
payment thereof by a paid bill or canceled check, such cost is a 
reimbursable element of damage.
    (ii) If the DA is absorbing the cost of the appraisal, payment is 
made from Appropriations, Operation and Maintenance, Army (AR 37-108, 
paragraph 3-74).
    (3) If a single appraiser cannot be agreed upon, a joint appraisal 
can be conducted (that is one in which an appraiser chosen by claimant 
and an appraiser chosen by the Government both examine the property and 
submit their respective appraisals). Joint appraisals should be 
coordinated and monitored by the claims officer. The cost of a single 
or joint appraisal should be commensurate with the amount of damage 
allegedly sustained and the fee charged by other appraisers for similar 
work.
    (b) Appraisals by other organizations within the DA, the other 
Armed Services, or other Federal agencies may be used in addition to or 
in lieu of independent appraisal when obtainable. Other organizations 
within DA may be called upon to furnish such appraisals; for example, 
engineer districts will furnish an appraiser, if available, in regard 
to damage to buildings or diminution in value of real property, 
provided the requesting office defrays travel expenses for the 
individual's TDY.


Sec. 536.27  Independent medical examinations.

    (a) In claims involving serious personal injuries, for example, 
cases in which there is an allegation of temporary or permanent 
disability, the claimant should be examined by an independent 
physician, or other medical specialist, depending upon the nature and 
extent of the injuries. The necessity for, and the cost of, the 
examination should be commensurate with the severity of the injuries 
allegedly sustained and the fee charged by other examiners for similar 
work. To preclude duplication of effort and expense, both claimant and 
the claims officer must agree, in advance, upon the following:
    (1) The examiner chosen to conduct the examination and the location 
of the medical facility (whether governmental or civilian).
    (2) That the examiner's report constitutes the best evidence of the 
nature and extent of claimant's injuries.
    (3) The method of paying for the examination.
    (b) The necessity for conducting the medical examination must be 
approved by the claims office having monetary jurisdiction over the 
largest claim or potential claim arising out of the incident. If a 
medical report is submitted in conjunction with the filing of a claim, 
such report should be included in the file.
    (c) Payment of a civilian examiner's fee can be accomplished in 
either of the following two ways:
    (1) The claimant can incur the cost of the examination and submit a 
paid receipt or cancelled check, which constitutes a reimbursable 
element of damage in evaluating the claim.
    (2) The DA can absorb the cost of the examination (payment is made 
from Appropriations, Operation and Maintenance, Army (AR 37-108, 
paragraph 3-74)) by the claims office having responsibility for 
investigating the claim.
    (d) As to an examination costing in excess of $750 or when local 
funds are exhausted, a request for funding may be directed to 
Commander, USARCS with appropriate justification.
    (e) If the parties cannot agree upon an independent examiner, and 
if either the examiner chosen by the claimant or the results of the 
examination are not acceptable, the Government may demand that the 
claimant be examined by an examiner acceptable to the Government.
    (f) Examinations of claimants at Army medical treatment facilities 
are authorized by AR 40-3. Such examinations may be used in addition to 
or in lieu of the foregoing where indicated.


Sec. 536.28  Effect on award of other payments to claimant.

    The total award to which the claimant (and subrogees) may be 
entitled normally will be computed as follows:
    (a) Determine the total of the loss or damage suffered.
    (b) Deduct from the total loss or damage suffered any payment, 
compensation, or benefit the claimant has received from the following 
sources:
    (1) The U.S. or ARNG employee/member who caused the damage.
    (2) The U.S. or ARNG employee's/member's insurer.
    (3) Any person or agency in a surety relationship with the U.S. 
employee; or
    (4) Any joint tortfeasor or insurer, to include Government 
contractors under contracts or in jurisdictions where it is permissible 
to obtain contribution or indemnity for the contractor in settlement of 
claims by contractor employees and third parties.
    (5) Any advance payment made pursuant to the section entitled 
``advance payments'' of this subpart.
    (6) Any benefit or compensation based directly or indirectly on an 
employer-employee relationship with the United States or Government 
contractor and received at the expense of the United States, including 
but not limited to medical or hospital services, burial expenses, death 
gratuities, disability payment or pensions.
    (7) The State (Commonwealth and so forth) whose employee or ARNG 
member (32 U.S.C. section 101(3)) caused or generated an incident that 
was a proximate cause of the resulting damages.
    (8) Value of Federal medical care.
    (9) Benefits paid by the Department of Veterans Affairs (VA) that 
are intended to compensate the same elements of damage. When the 
claimant is receiving money benefits from the VA under 38 U.S.C. 351 
for a nonservice connected disability or death based on the injury that 
is the subject of the claim, acceptance of a settlement or an award 
under the FTCA will discontinue the VA monetary benefits until the 
amount that would have otherwise been received in VA monetary benefits 
is equal to the total amount of the agreement or award including 
attorney fees. While monetary benefits received under 38 U.S.C. 351 
must be discontinued as above, medical benefits, that is, VA medical 
care may continue provided the settlement or award expressly provides 
for such continuance and the appropriate VA official is informed of 
such continuance.
    (10) When the claimant is receiving money benefits under 38 U.S.C. 
410(b) for non-service connected death, arising from the injury that is 
the subject of the claim, acceptance of a settlement or award under the 
FTCA or under any other tort procedure will discontinue the VA benefits 
until the amount that would have otherwise been received in VA benefits 
is equal to the amount of the total settlement or award including 
attorney fees. The discontinuation of monetary benefits under 38 U.S.C. 
410(b) has no effect on the receipt of other VA benefits. The claimant 
should be informed of the foregoing prior to the conclusion of any 
settlement and thus afforded an opportunity to make appropriate 
adjustment in the amount being negotiated.
    (11) The value of other Federal benefits to which the claimant did 
not contribute, or at least to the extent they are funded from general 
revenue appropriations.
    (12) From collateral sources where permitted by State law (for 
example, State or Federal workers' compensation, social security, 
private health, accident, and disability benefits paid as a result of 
injuries caused by a health care provider).
    (c) No deduction will be made for any payment the claimant has 
received by way of voluntary contributions, such as donations of 
charitable organizations.
    (d) Where a payment has been made to the claimant by his or her 
insurers or other surbrogee, or under workmen's compensation insurance 
coverage if subrogated interests are allowable, the award based on 
total damages will be apportioned in relation to their separate 
interests (Sec. 536.20).
    (e) After deduction of permissible collateral and noncollateral 
sources, also deduct that portion of the loss or damage believed to 
have been caused by the negligence of the claimant, third parties whose 
negligence can be imputed to the claimant, or joint tortfeasors who are 
liable for their share of the negligence (for example, where some form 
of the Uniform Contribution Among Joint Tortfeasors Act has been 
passed).


Sec. 536.29  Claims with more than one potential source of recovery.

    (a) The Government seeks to avoid multiple recovery (that is, 
claimants seeking recovery from more than one potential source) and to 
minimize the award it must make. The claims investigation should 
therefore identify other parties potentially liable to the claimant 
and/or their insurance carriers; indicate the status of any claims made 
or include a statement that none has been made so that it can be 
assured there is only one recovery and the Government does not pay a 
disproportionate share. Where no claim has been made by the claimant 
against others potentially liable, if applicable State law grants the 
Government the right to indemnity or contribution, and it is felt the 
Government may be entitled to either under the facts developed by the 
claims investigation, the claims officer or attorney should formally 
notify the other parties of their potentially liability, the 
Government's willingness to share information, and its expectation of 
shared responsibility for any settlement. Furthermore, the claimant may 
be receiving or entitled to receive benefits from collateral and non-
collateral sources (Sec. 536.28), which can be deducted from the total 
loss or damage. Accordingly, a careful review must be made of 
applicable State laws regarding joint several liability, indemnity, 
contribution, comparative negligence, and the collateral source 
doctrine.
    (b) If a demand by a claimant or an inquiry by a potential claimant 
is directed solely to the Army, where it appears that the responsible 
Army employee may have applicable insurance coverage, the employee 
should be queried as to whether he or she has liability insurance.
    (1) If so, determine if his or her insurer has made or will make 
any payment to claimant. Under applicable State laws, the United States 
may also be an insured entitled to coverage under the employee's 
liability policy. (See 16 ALR3d 1411; United States v. State Farm 
Mutual Ins. Co., 245 F. Supp. 58 (D. Ore. 1965.)) Therefore, where 
there may be applicable insurance coverage, the policy language should 
be reviewed, together with the rules and regulations of the State 
insurance regulatory body, or determine whether--
    (i) The United States comes within the definition of ``insured''.
    (ii) The exclusion of the United States from policy coverage 
conforms with state laws and policy.
    (iii) Appropriate consideration has been given for a policy where 
the United States has been excluded from coverage.
    (2) If the employee refuses to cooperate in providing this 
information, he or she should be advised to comply with the notice 
requirements of the insurance policy and to request the insurance 
carrier to contact the claims officer or attorney. The case should be 
followed to ascertain whether the employee's insurer has made or will 
make any payment to the claimant before deciding whether to settle the 
claim against the Government. Normally, the award, if any, to the 
claimant will be reduced by the amount of the payment of the employee's 
insurance carrier.
    (c) If the employee is the sole target of the claim and Army claims 
authorities arrange to have the claim made against the Government, the 
employee should be required to notify his or her insurance carrier 
according to the policy and inform Army claims authorities of the name 
of the insurance carrier and details of the coverage. Except when the 
driver's statute is applicable, the insurance carrier is expected to 
participate in the negotiation of the claims settlement and to pay its 
fair share of any award to the claimant.
    (d) Where the responsible Army employee is ``on loan'' to another 
employer other than the United States (for example, an ROTC instructor 
at a civilian institution or performing duties for a foreign 
government), it should be determined whether there is applicable 
statutory or insurance coverage concerning the acts of the responsible 
employee and appropriate contribution or indemnification should be 
sought. In the case of foreign governments, applicable treaties or 
agreements are controlling.
    (e) A great many claims cognizable under the FTCA are now settled 
on a compromise basis. A major consideration in many such settlements 
is the identification of other sources of recovery. This is true in a 
variety of factual situations where there is a potential joint 
tortfeasor; for example, multi-vehicle accidents with multiple drivers 
and guest passengers, State or local government involvement, 
contractors performing non-routine tasks for the Government, medical 
treatment rendered to claimants by non-Government employees, or 
incidents caused by a member or employee of the military department of 
a State or Commonwealth with whom the DA does not have a cost-sharing 
agreement. The law of the jurisdiction regarding joint and several 
liability, indemnity, and contribution may permit shared financial 
responsibility, but even in jurisdictions that do not permit 
contribution, a compromise settlement can be reached with the other 
tortfeasor's insurance company paying a portion of the total amount of 
the claim against the Government. For these reasons, every effort 
should be made to identify the insurance of all potential tortfeasers 
involved and the status of any claims made, and to demand contribution 
or indemnity where substantial reason exists to believe that liability 
for the loss or damage should be shared.
    (f) When a claim is filed against the Government under a subpart 
that does not permit the payment of a subrogated interest (subparts E, 
J, K), it is important to ensure that full information is obtained from 
the claimant regarding insurance coverage since it is the legislative 
intent of the statutes upon which these subparts are based that 
insurance coverage be fully utilized before using appropriated funds to 
pay the claims.

Settlement Procedures


Sec. 536.30  Settlement.

    (a) General. Settlement means denial or payment of a claim in full 
or in part. When an approval or settlement authority determines that a 
claim is meritorious in an amount within his or her monetary 
jurisdiction, the claim will be approved in that amount under the 
statute determined to be proper regardless of the statutory basis 
asserted by the claimant. Every effort will be made to settle claims at 
the lowest level possible commensurate with the actual value of the 
claim.
    (b) Award of full amount claimed. If an approval or settlement 
authority approves a claim in full, the claim will be certified for 
payment to the appropriate disbursing officer. Enclosures listed in 
Sec. 536.35 will be forwarded with the claim. The claimant will be 
notified of the action taken on the claim. A settlement agreement is 
required prior to payment.
    (c) Award of less than full amount. When an approval or settlement 
authority determines that a claim is meritorious in part, he or she 
will--
    (1) Notify the claimant in writing of his or her action.
    (2) Request the execution of a settlement agreement (in triplicate) 
in final and complete settlement of the claim in the reduced amount.
    (3) If an approval authority, inform the claimant that if he or she 
does not desire to accept the award, he or she should indicate in the 
reply the reasons for rejection. If a settlement authority, and the 
action is taken under subparts C or F, inform the claimant of the right 
to appeal. (See Sec. 536.63 and Sec. 536.103.) DA Pam 27-162 provides 
sample formats for letters notifying claimants of the actions taken on 
their claims. (Fig 5-10 is to be used by field approving and settlement 
authorities; figs 5-8 through 5-11 are to be used by claims authorities 
in conjunction with Sec. 536.37 of this part.)
    (d) Nonacceptance of reduced award. When a claimant rejects a 
partial award, the approval authority may reconsider the matter and, if 
justified, make further efforts to settle the claim. When further 
efforts to settle appear unwarranted, the claim and related file will 
be forwarded to the settlement authority having jurisdiction over the 
largest claim or potential claim arising out of the incident with a 
memorandum of opinion. The claimant should be advised of such referral.
    (e) Civil works claims. Engineer civil works claims settled under 
the provisions of the FTCA in an amount of $2,500 or less normally are 
paid out of funds controlled by the COE rather than claims 
appropriations. Unsettled claims in this category should, therefore, be 
forwarded to the Commander, USARCS. An information copy will be sent to 
the COE, ATTN: Chief Counsel, unless the latter waives that 
requirement. Civil works claims received outside engineer channels 
should be forwarded without further action to the district or division 
engineer in whose area the incident occurred, or to the COE, ATTN: 
Chief Counsel.
    (f) Settlement of property damage claims. All claims submitted for 
only property damage or for only personal injury should be evaluated 
for other potential claims. Under tort claims statutes, only one 
payment may be made to a claimant on all claims arising out of a single 
incident. Therefore, a property damage claim arising from an incident 
in which the claimant sustained injury should not be paid unless the 
claimant executes a release for any potential injury claim. Likewise, 
when a property damage claim is settled the claimant should be informed 
that subsequent claims for hidden damage or loss of use are precluded 
by the settlement.


Sec. 536.31  Claims forwarded without settlement.

    (a) Claims beyond monetary jurisdiction. If the chief of a command 
claims service or the head of a claims office considers a claim 
meritorious in an amount exceeding their jurisdiction, they will 
forward the claim with a memorandum of opinion to the settlement 
authority having jurisdiction over the largest claim or potential claim 
arising out of the incident. The claimant should be informed of this 
referral. In most cases the claimant should not be informed of the 
amount of award recommended. However, for claims arising under the 
Foreign Claims Act notice of the amount recommended may be required in 
accordance with Sec. 536.156.
    (b) Claims recommended for disapproval. If a claim is forwarded to 
higher authority with a recommendation for denial, the claimant will be 
advised of this referral but not of the recommendation.
    (c) Companion claim. When two or more claims arising from the same 
incident are by reason of differences in amounts within the monetary 
jurisdiction of different approval or settlement authorities, all such 
claims will be forwarded to the authority having jurisdiction over the 
claim presented in the greatest amount. This authority may either 
settle the claims or return the claim to the appropriate field claims 
office for settlement in accordance with his or her guidance.
    (1) The same procedure will be followed when a potential claim 
exists in an amount estimated to be beyond the jurisdiction of the 
approval or settlement authority actually considering the matter. For 
example, the foregoing applies when a small subrogated property damage 
claim is received arising from an incident in which severe personal 
injury or death has occurred but as to which no claim has yet been 
filed. In a case of clear liability, authorization to settle the claim 
within the monetary jurisdiction of the requesting officer may be 
obtained telephonically or by other expeditious means.
    (2) Similarly, where there is a claim for property damage and no 
evidence (for example, police report, report of survey, collateral 
accident investigation, and witness interviews) of personal injury, the 
property damage claim may be settled by the authority having 
jurisdiction. However, where there is evidence of personal injury, the 
foregoing caveat regarding settlement and payment of lesser claims will 
apply. In such instances the claimant will be informed that settlement 
of a property damage claim will preclude settlement of a subsequently 
filed personal injury claim and vice versa. (See Sec. 536.176 on 
personnel claims and Sec. 537.32 on companion claims in litigation.)
    (d) Property claim of a claims authority or superior. A claim 
arising from loss or damage to the property of an approval or 
settlement authority or his or her superior officer in the chain of 
command will be forwarded without recommendation to the next higher 
settlement authority (in the case of a division, this would be a corps 
level settlement authority; in an overseas area, this includes a 
command claims service) or to USARCS.


Sec. 536.32  Settlement agreement.

    (a) General. (1) Except under subpart K, if a claim is determined 
to be meritorious in an amount less than claimed, or if a claim 
involving personal injuries or death is approved in full, a settlement 
agreement will be obtained prior to payment. A settlement agreement may 
be required in other instances when, in the opinion of the adjudication 
authority, good legal practice so dictates; for example, where family 
or other multiple interests may be involved.
    (2) A DA Form 1666 may be used for settlement of claims under the 
FTCA for less than $2500 and for all other claims payable from Army 
funds. Claims payable in excess of $2500 under the FTCA will be settled 
using Standard Form 1145, Voucher for Payment Under the Federal Tort 
Claims Act. In some cases a special settlement agreement may be 
necessary to reflect the full understanding of the parties. However, 
all such special agreements should incorporate the language of the 
acceptance block on the Standard Form 1145.
    (3) Acceptance by a claimant of an award under subparts C and K 
constitutes a full and final settlement and release of any and all 
claims against the United States and against the military of civilian 
personnel whose act or omission gave rise to the claim. The claimant 
should be so advised prior to the initiation of negotiations. Where 
this is done orally and the claimant is unrepresented, a memorandum of 
the conversation should be placed in the file and a copy furnished to 
the claimant. Also, settlement negotiations with unrepresented 
claimants should also be preserved in the form of memoranda retained in 
the file with a copy furnished to the claimant. While a settlement 
agreement is not required in claims adjudicated under subpart K, the 
settlement authority approving payment may require one at his or her 
discretion.
    (b) Claims involving minors. (1) Generally, only a court-appointed 
guardian of the estate of a minor, or a person performing a similar 
function under the supervision of a court, can execute a binding 
settlement agreement relative to a minor's claim. Therefore, a guardian 
of the estate of the minor or similar functionary must be appointed by 
a court of competent jurisdiction and must execute a settlement 
agreement before a claim is approved and paid. (See. Sec. 536.35.) 
However, this requirement can be eliminated and the settlement 
agreement can be signed by a parent, next-of-kin, or a friend if the 
contemplated payment is small and the cost of obtaining a court-
appointed guardian would materially deplete the award.
    (2) In foreign countries where the amount agreed to does not exceed 
$2,500.00, the requirement for obtaining a guardian may be eliminated. 
However, in areas where the FTCA (subpart D) applies, local law should 
be consulted as a basis for determining whether a court appointed 
guardian should be required. The requirement to appoint a guardian 
should not be imposed until a particular claim is determined to be 
meritorious in an amount that would require the appointment of a 
guardian. The claimant should be advised of this requirement well in 
advance of settlement negotiations so that the cost of establishing 
guardianship can be considered by the claimant as a factor in 
evaluating the claim. This requirement also can be eliminated if local 
law authorizes or requires a claim such as for death of a parent of the 
minor, to be presented on behalf of the estate of the decedent by an 
administrator, administratrix, or the like. In such cases, a settlement 
agreement signed by the administrator, administratrix, or the like will 
suffice if, under local law, such action is binding on the minor.
    (3) The above provisions are in addition to, not in lieu of, the 
requirements of Sec. 536.20(a)(5).
    (c) Claims involving incompetents. The above stated principles may 
also be applied in appropriate cases involving incompetents. Authority 
to waive the foregoing requirements in appropriate cases is delegated 
to the Commander, USARCS. If it is felt that the foregoing requirements 
are materially impeding settlement of the claim, the matter should be 
brought to the attention of the Commander, USARCS for appropriate 
resolution.
    (d) Claims involving workmen's compensation carriers. The 
settlement of a claim involving a claimant who has elected to receive 
workmen's compensation benefits under local law may require the consent 
of the workmen's compensation carrier and in certain jurisdictions the 
State agency with authority over workmen's compensation awards. 
Accordingly, claims approval and settlement authorities should be aware 
of local requirements.


Sec. 536.33  Vouchers.

    Vouchers are prepared in an original and three copies. The original 
and two copies (one marked as comeback copy) will be transmitted to the 
disbursing office and one copy retained as a suspense copy. Upon 
payment of the claim, the disbursing office will return the comeback 
copy, which will be included in the file when it is transmitted to the 
Commander, USARCS for post settlement review.


Sec. 536.34  Accounting codes.

    (a) Certifying an approved claim for payment creates an obligation 
against the claims appropriation for the fiscal year then in progress. 
Accordingly, the voucher will bear the appropriate accounting code for 
both the appropriation charged and the current fiscal year, 
irrespective of the date the claim accrued or was filed. Confusion 
sometimes arises at the end of a fiscal year; for example, an approved 
claim is certified for payment on 28 September (the last business day 
of a fiscal year), but it is obvious that it will not be actually paid 
(i.e., a check issued by the disbursing activity) until on or after 1 
October (the first day of the following fiscal year). At the time the 
check is issued, the accounting code will not be advanced to the next 
fiscal year. Claims checks are issued using the accounting code of the 
fiscal year in which the claim was certified for payment (i.e., the 
fiscal year in which the voucher was signed).
    (b) The accounting code for each type of claim remains constant, 
except for the third digit of the code which is the second digit of the 
fiscal year (e.g., ``O'' for ``FY90''). The accounting codes for claims 
appropriations are published each fiscal year in the AR 37-100 series. 
Accounting codes used in the payment of claims and refunds, and their 
references, are listed below; the ``X'' denotes the space where the 
second digit of the fiscal year appears.

           Table B-1.--Frequently Used Claims Accounting Codes          
                                                                        
                                                                        
Accounting code: 21X2020 22-0205 P202097.23-4230 FAJA S99999 21X2020 22-
 0305 P202097.23-4230 FAJA S99999                                       
Reference: Subpart C (Military Claims Act)                              
Accounting code: 21X2020 22-0203 P202097.21-4230 FAJA S99999 21X2020 22-
 0303 P202097.21-4230 FAJA S99999                                       
Reference: Subpart C (Military Claims Act) Use symbol only if claim     
 approved for $2,500 or less--if approved for more than $2,500,         
 allotment symbol will be filled in by GAO.                             
Accounting code: 21X2020 22-0208 P202097.26-4230 FAJA S99999 21X2020 22-
 0308 P202097.26-4230 FAJA S99999                                       
Reference: Subpart E (Nonscope Claims)                                  
Accounting code: 21X2020 22-0206 P202097.24-4230 FAJA S99999 21X2020 22-
 0306 P202097.24-4230 FAJA S99999                                       
Reference: Subpart F (National Guard Claims Act)                        
Accounting code: 21X2020 22-0207 P202097.25-4230 FAJA S99999 21X2020 22-
 0307 P202097.25-4230 FAJA S99999                                       
Reference: Subpart H (Maritime Claims)                                  
Accounting code: 21X2020 22-0204 P202097.26-4230 FAJA S99999 21X2020 22-
 0304 P202097.26-4230 FAJA S99999                                       
Reference: Subpart J (Foreign Claims Act)                               
Accounting code: 21X2020 22-0201 P202097.11-4230 FAJA S99999 21X2020 22-
 0301 P202097.11-4230 FAJA S99999                                       
Reference: Subpart K (Personnel Claims Act)                             

Sec. 536.35  Payment.

    (a) General. Except as provided in Sec. 536.35(a)(1), when a claim 
has been determined to be payable, the approval or settlement authority 
will transmit the following to the appropriate disbursing office:
    (1) The voucher (SF 1034 or SF 1145 as appropriate) in triplicate, 
with a request that one copy be returned with voucher number and date 
of payment noted thereon.
    (2) Two copies of--
    (i) The claim. (Under Subpart K this means DD Form 1842 (Claim for 
Loss of or Damage to Personal Property Incident to Service).)
    (ii) The settlement agreement, as required.
    (iii) Actions and other documents as required; for example, DA Form 
1668 signed by the approving or settlement authority (as the substitute 
for action in small claims under subparts C, D, E, F, H or J) attorney 
general approval and court approval on claims for minors and 
incompetents.
    (iv) Original power of attorney, where appropriate.
    (b) Electronic payment procedures. At installations where 
electronic payment procedures have been implemented, the approving or 
settlement authority will electronically transmit payment information 
to the servicing finance and accounting office. The claim, the 
settlement agreement, any actions or other required documents, and the 
original power of attorney will not be transmitted to the finance and 
accounting office, but will be retained in the claims file. Instead, a 
``payment report'' produced by the claims automation program provided 
such offices by USARCS, which evidences or supports the fact that a 
claims official has approved a claim payment, will be transmitted to 
the disbursing activity in accordance with locally established 
procedures. The method of transmission used should not result in 
avoidable or significant delay in the issuance of checks for claims 
payments. The payment report includes--
    (1) The name of the payee.
    (2) The payee's social security number (if available).
    (3) The payee's address.
    (4) The date the claim was filed.
    (5) The claim number.
    (6) The amount claimed.
    (7) The amount of the approved payment.
    (8) The date the payment was recorded in claims records.
    (9) The claims office identification.
    (10) The claims office's office code.
    (c) Payments in excess of $2,500 under the FTCA (Sec. 536.78). 
Claims paid in excess of $2,500 under the FTCA will be submitted to the 
GAO with the same documentation as indicated in paragraph (a) of this 
section but with the following exceptions:
    (1) Standard Form 1145 will be signed by the settlement authority 
on the lower left side only. The space on the right side for the 
authorized certifying officer will not be signed.
    (i) Where a minor is payee, the full legal name of the individual 
should be listed on the voucher; for example, ``John Doe, Sr., as 
guardian of John Doe, Jr.'' Descriptive words such as ``Mrs. John Doe 
and her three minor children'' should not be used.
    (ii) The accounting classification will not be placed on the 
voucher. This is accomplished by the GAO as the payment is made from 
Treasury funds.
    (2) The letter of transmittal to the GAO will include a statement 
that the individual whose signature appears on the voucher as 
certifying authority is the person having authority to act under the 
provisions of the FTCA and Sec. 536.80.
    (3) The Attorney General will approve payments in excess of $25,000 
in lieu of action of the approval or settlement authority.
    (d) Advance payment. When it has been determined that an advance 
payment will be made, the approval or settlement authority will 
transmit to the appropriate disbursing officer--
    (1) SF 1034 (in triplicate) with a request that one copy be 
returned with voucher number and date of payment.
    (2) The original copy and one copy of the action by the approval or 
settlement authority authorizing advance payment and the Advance 
Payment Acceptance Agreement. (See Sec. 536.47)
    (e) Payment involving minors. Payment will be made to the 
individual who executed the settlement agreement on behalf of the 
minor.
    (f) Lost, stolen, forged, destroyed, or undeliverable Government 
checks. Army disbursing officers have the authority to issue substitute 
checks for checks that have been issued by the Army and that are 
subsequently lost, destroyed, or rendered undeliverable. (See AR 37103, 
chap 4, secs. VII through X.) Some Federal agencies do not yet have 
this authority. Inquiries from payees or endorsees of Army-issued 
checks should be referred to an Army comptroller; inquiries regarding 
other agencies should be referred to the specific agency involved. For 
claims paid by the GAO, if the Treasury check is lost or stolen, the 
payee or endorsee should be referred to the Check Forgery Insurance 
Fund, Department of the Treasury (31 U.S.C. 3343, 31 CFR 235.1 through 
235.6). The Fund can reimburse such losses provided the specific 
requirements of the Statute are met. The Fund is administered by the 
Commissioner, Financial Management Service, Department of the Treasury, 
3700 East-West Highway, Hyattsville, MD 20782.


Sec. 536.36  Effect of payment.

    Acceptance of an award by the claimant, except for advance payment, 
constitutes for the United States, military personnel, or civilian 
employee whose act or omission gave rise to the claim, a release from 
all liability to the claimant, based on the act or omission. However, 
on tort claims only one payment may be made for all damages a claimant 
sustains from an incident. Therefore, a signed unconditional settlement 
agreement is needed to ensure that the claimant understands the 
finality of accepting payment.


Sec. 536.37  Notification as to denial of claims.

    (a) General. The nature and extent of the written notification to 
the claimant as to the denial of his or her claim should be based on 
whether the claimant has a judicial remedy following denial or an 
administrative recourse to appeal.
    (b) Final actions under subpart D. If the settlement authority has 
information that could be a persuasive factor for the claimant as to 
whether to resort to litigation, such information may be orally 
transmitted to the claimant and, in appropriate cases, released under 
normal procedures in accordance with AR 340-17 or AR 340-21. However, 
the written notification of the denial should be general in nature; for 
example, denial on the weaker ground of contributory negligence should 
be avoided and the inclination should be to deny on the basis that the 
claimant was solely responsible for the incident. The claimant will be 
informed in writing of his or her right to bring an action in the 
appropriate U.S. District Court not later than 6 months after the date 
of mailing of the notification. See DA PAM 27-162, figures 5-8 and 5-9.
    (c) Final actions under subparts C, F and J. Final agency actions 
under subparts C, F or J are subject to appeal and the claimant will be 
so informed. Also, the notice of final action will be sufficiently 
detailed to provide the claimant with an opportunity to know and 
attempt to overcome the basis for denial. The claimant should not be 
afforded a valid basis for claiming surprise when an issue adverse to 
him or her is asserted as a basis for denying the appeal (see DA Pam 
27-162, figures 5-8 and 5-9).
    (d) Denials on jurisdictional grounds. Regardless of the nature of 
the claim or the statute under which it may be considered, claims 
denied on jurisdictional grounds that are valid, certain, and not 
easily overcome (and for this reason no detailed investigation as to 
the merits of the claim is conducted) should contain in the denial 
letter a statement that the denial on such grounds is not to be 
construed as an expression of opinion on the merits of the claim or an 
admission of liability. If sufficient factual information is available 
to make a tentative ruling on the merits of the claim, liability may be 
expressly denied.
    (e) Claims that may be considered under more than one subpart. In 
doubtful cases as to whether subparts C, D and F are the appropriate 
subparts to consider the claim, the claimant will be advised of the 
alternatives; for example, the right to sue or the right to appeal. 
Similarly, a claimant may be advised of his or her alternative remedies 
when the claimant is a military member and the issue of ``incident to 
service'' is not clear.
    (f) Denial after litigation. On those claims cognizable under the 
FTCA in which the claimant files suit after six months without agency 
action, a formal denial will be sent to the claimant unless the 
Assistant United States Attorney responsible for the litigation of the 
suit expressly directs otherwise. The denial will be on the basis that 
the claim is no longer amenable to administrative settlement. Other 
reasons for denial may also be given.

Small Claims


Sec. 536.38  General.

    Secs. 536-38 through 536.43 provides an expeditious procedure for 
the investigation and payment of claims (regardless of the amount 
claimed) that may be without extensive investigation. If it appears 
that a claim should be denied or cannot be settled within the limits 
specified in Secs. 536.38 through 536.43, it will be fully investigated 
under normal procedures. The use of small claims procedures is not 
mandatory; however, these procedures should be used whenever considered 
appropriate in the judgment of the claims approval or settlement 
authority, as considerable processing time and expense is usually saved 
thereby. If a fully investigated claim is received by an approval or 
settlement authority, which in his or her opinion could properly have 
been processed under small claims procedures, the claim will be settled 
in accordance with normal procedures. Appropriate corrective action 
will be taken to ensure the use of small claims procedures in similar 
future cases.


Sec. 536.39  Investigation.

    The investigation will be made so as to develop most expeditiously 
the facts necessary to determine whether the claim is meritorious and 
in what amount. The evidence required may be obtained by telephone, 
from incident reports, and other forms of hearsay evidence. Written 
statements of witnesses, written estimates of repairs, and the like are 
not required. The approving authority must be convinced and state on DA 
Form 1668 that--
    (a) The United States is liable for the damage or injury incurred.
    (b) The claimant is a proper claimant.
    (c) The amount approved, as claimed or agreed upon, is reasonably 
substantiated.


Sec. 536.40  Report of investigation.

    When it appears that a small claim may arise, the report of 
investigation will be prepared on DA form 1668. The investigator will 
append a brief summary of the evidence developed. The summary may be 
used as a basis for completion of the investigation after a claim has 
been filed. This report is exempted from control in accordance with AR 
335-15, paragraph 7-2t.


Sec. 536.41  Processing.

    (a) If the amount claimed under subpart K is not more than $1,000, 
or in the case of a tort claim is not more than $2500, and is 
considered meritorious in full, the claims JA/attorney will complete DD 
Form 1842 or DA Form 1668 and pay the claim.
    (b) A claim under subpart K is meritorious in an amount of $1,000 
or less, or if a tort claim is meritorious in the amount of $2500 or 
less, the claim JA/attorney may settle the claim.
    (c) After coordination with the responsible approving or settlement 
authority, unit claims officers may be authorized to attempt to procure 
a settlement agreement. If a settlement agreement is obtained, the 
claims officer will complete the small claims certificate for the 
amount of recommended payment and transmit it, in triplicate, with the 
claim and settlement agreement, to the approval or settlement 
authority.
    (d) If a claimant refuses to accept a sum offered under this 
section or if it appears that a claim should be disapproved, the small 
claims procedures will not be employed; the claim will be fully 
investigated and processed.
    (e) Nonappropriated fund claims will be forwarded by the approval 
or settlement authority for payment as prescribed in subpart L.
    (f) Claims under subpart K. DA Form 1668 will not be employed in 
the settlement of small claims under subpart K. Such a claim will be 
submitted on DD Form 1842. Procedures in subpart K will be used.


Sec. 536.42  Settlement agreement.

    When a claimant is available and agrees to accept a sum less than 
originally claimed, he or she will be requested to sign, in ink, a 
statement to that effect on any open space on each copy of the claim 
form (SF 95 (Claim for Damage, Injury, or Death)). If not readily 
available, the claimant will be requested to sign and return in 
triplicate a DA Form 1666 or Standard Form 1145, which will be attached 
to the claim form.


Sec. 536.43  Payment.

    (a) If a small claim is payable under any subpart except subparts G 
and I, the approval or settlement authority will allow the procedures 
of either Sec. 536.35(a) and Sec. 536.35(a)(1).
    (b) Except for claims cognizable under subpart K and personnel 
claims cognizable under subpart L an approval authority who has been 
appointed an agent officer under AR 37-103, chapter 15, may pay the 
claim, and will require the claimant to sign, in triplicate, a receipt 
in the following language:

----------------------------------------------------------------------
(Date)

I hereby acknowledge receipt of----------------------------------------
in full satisfaction and final settlement of the within claim.

----------------------------------------------------------------------
(Signature)

----------------------------------------------------------------------
(Name printed)

    (c) This above receipt may be printed, stamped, typed, or written 
in ink in any available space on the front or back of the signed claim 
form. If not on the claim form, the receipt will be modified to 
identify and will be firmly affixed to the appropriate claim.

Advance Payments


Sec. 536.44  Authority.

    This section implements the act of 8 September 1961 (75 Stat. 488, 
10 U.S.C. 2736) as amended by Pub. L. 90-521 (82 Stat. 874), Pub. L. 
98-564, and Pub. L. 100-456. No new liability is created by 10 U.S.C. 
2736, which merely permits partial advance payments on meritorious 
claims as specified above. (See Sec. 536.178 for emergency partial 
payments in personnel claims, which are not governed by 10 U.S.C. 
2736.)


Sec. 536.45  Conditions for advance payment.

    An advance payment not in excess of $100,000 is authorized in the 
limited category of claims resulting in immediate hardship arising from 
incidents that are payable under subparts C, F or J. An advance payment 
is authorized only under the following circumstances:
    (a) The claim must be determined to be cognizable and meritorious 
under the provisions of subparts C, F or J.
    (b) There exists an immediate need of the person who suffered an 
injury, damage, or loss, or of the family of a person who was killed 
for food, clothing, shelter, medical, burial expenses, other 
necessities, or other resources for such expenses that are not 
reasonably available.
    (c) The payee, so far as can be determined, would be a proper 
claimant, as is the spouse or next of kin of a claimant who is 
incapacitated.
    (d) The total damage sustained must exceed the amount of the 
advance payment.
    (e) A properly executed advance payment acceptance agreement has 
been obtained.


Sec. 536.46  Authorization.

    The authorities listed are authorized to make advance payments as 
follows:
    (a) Under subparts C and F of this part, TJAG and TAJAG may make 
advance payments in amounts not exceeding $100,000; the Commander, 
USARCS, in amounts not exceeding $25,000; and the authorities 
designated in Sec. 536.61(a) (4) and (5) and Sec. 536.103(c)(3), in 
amounts not exceeding $10,000, subject to advance coordination with 
USARCS if the estimated total value of the claim exceeds their monetary 
authority. Requests for advance payments in excess of $10,000 will be 
forwarded to USARCS for processing.
    (b) Under subpart J of this part, three-member claims commissions 
may make advance payments under the Foreign Claims Act in amounts not 
exceeding $10,000, subject to advance coordination with USARCS if the 
estimated total value of the claim exceeds their monetary authority.


Sec. 536.47  Advance payment acceptance agreement.

    Prior to making any advance payment, the authority approving such 
payment will obtain an executed acceptance agreement from the 
claimants.

Subpart C--Claims Cognizable Under the Military Claims Act


Sec. 536.48  Statutory authority.

    The statutory authority for this subpart is contained in the act of 
10 August 1956 (70A Stat. 153, 10 U.S.C. 2733), commonly referred to as 
the ``Military Claims Act,'' as amended by Pub. L. 90-522, 26 September 
1968 (82 Stat. 875), Pub. L. 90-525, 26 September 1968 (82 Stat. 877), 
Pub. L. 93-336, 8 July 1974; the act of 8 September 1961 (75 Stat. 488, 
10 U.S.C. 2736), as amended by Pub. L. 90-521, 26 September 1968 (82 
Stat. 874); and the act of 30 October 1984, Pub. L. 98-564.


Sec. 536.49  Scope.

    This subpart is applicable in all locations and prescribes the 
substantive bases and special procedural requirements for the 
settlement of claims against the United States for death; personal 
injury; or damage, loss, or destruction of property--
    (a) Caused by military personnel or civilian employees of the DA 
acting within the scope of their employment.
    (b) Incident to the noncombat activities of the DA, provided such 
claim is not for personal injury or death of a member of the Armed 
Forces or Coast Guard or civilian officer or employee whose injury or 
death is incident to service.


Sec. 536.50  Claims payable.

    (a) General. Unless otherwise prescribed, a claim for personal 
injury, death, or damage or loss of real or personal property is 
payable under this subpart when--
    (1) Caused by an act or omission determined to be negligent, 
wrongful, or otherwise involving fault of military personnel or 
civilian officers or employees of the DA acting within the scope of 
their employment, including certain Red Cross volunteers meeting the 
criteria in AR 40-3, paragraph 2-42, or
    (2) Incident to the noncombat activities of the DA.
    (b) Property. The loss or damage to property that may be the 
subject of claims under this subpart includes--
    (1) Real property used and occupied under lease, express or 
implied, or otherwise (for example, in connection with training, field 
exercises, or maneuvers). An allowance may be made for the use and 
occupancy of real property arising out of trespass or other tort, even 
though claimed as rent. (See DA PAM 27-162, paragraph 8-46.)
    (2) Personal property bailed to the Government under an agreement, 
express or implied, unless the owner has expressly assumed the risk of 
damage or loss. Some losses may be payable using Operations and 
Maintenance, Army funds. (See DA PAM 27-162, paragraph 8-41.) Clothing 
damage or loss claims arising out of the operation of an Army 
Quartermaster laundry are considered to be incident to service and are 
payable only if claimant is not a proper claimant under subpart K.
    (3) Registered or insured mail in the possession of the DA, even 
though the loss was caused by a criminal act. (See DA PAM 27-162, 
paragraph 8-61 for settlement of claims by the U.S. Postal Service.)
    (c) Effect of FTCA. A claim may be settled in the United States 
only if the FTCA has been judicially determined not to be applicable to 
claims of this nature or if the claim arose incident to noncombat 
activities.
    (d) Advance payments. Advance payments (10 U.S.C. 2736, as amended) 
in partial payment of meritorious claims to alleviate immediate 
hardship are authorized as provided in subpart B.


Sec. 536.51  Claims not payable.

    A claim is not payable that--
    (a) Results wholly from the negligent or wrongful act of the 
claimant or agent. (See Sec. 536.55(b) on comparative negligence.)
    (b) Is for reimbursement for medical, hospital, or burial expenses 
furnished at the expense of the United States.
    (c) Is purely contractual in nature.
    (d) Arises from private as distinguished from Government 
transactions.
    (e) Is based solely on compassionate grounds.
    (f) Is for war trophies or articles intended directly or indirectly 
for persons other than claimant or members of his or her immediate 
family, such as articles acquired to be disposed of as gifts or for 
sale to another, voluntarily bailed to the Army, or is for precious 
jewels or other articles of extraordinary value voluntarily bailed to 
the Army. The preceding sentence is not applicable to claims involving 
registered or insured mail. No allowance will be made for any item when 
the evidence indicates that the acquisition, possession, or 
transportation thereof was in violation of DA directives.
    (g) Is for rent, damage, or other payments involving the 
acquisition, use, possession, or disposition of real property or 
interests therein by and for the DA, except as authorized by 
Sec. 536.50(b). Real estate claims founded upon contract are generally 
processed under AR 405-15. (See DA PAM 27-162, paragraph 8-46.)
    (h) Is not in the best interests of the United States, is contrary 
to public policy, or is otherwise contrary to the basic intent of the 
governing statute (10 U.S.C. 2733); for example, claims by inhabitants 
of unfriendly foreign countries or by or based on injury or death of 
individuals considered to be unfriendly to the United States. When a 
claim is considered to be not payable for the reasons stated in this 
paragraph, it will be forwarded for appropriate action to the 
Commander, USARCS, together with the recommendations of the responsible 
claims office.
    (i) Is presented by a national, or a corporation controlled by a 
national, of a country at war or engaged in armed conflict with the 
United States, or any country allied with such enemy country unless the 
appropriate settlement authority determines that the claimant is and, 
at the time of the incident, was friendly to the United States. A 
prisoner of war or an interned enemy alien is not excluded as to a 
claim for damage, loss, or destruction of personal property in the 
custody of the Government otherwise payable.
    (j) Is for personal injury or death of a member of the Armed Forces 
or Coast Guard or a civilian employee that is incident to his or her 
service (10 U.S.C. 2733(b)(3)).
    (k) Is listed in Sec. 536.75, except for claims listed in 
Sec. 536.75(n) and (r).


Sec. 536.52  Claims having multiple remedies.

    (a) Claims cognizable under other subparts.
    (1) Claims based upon a single act or incident cognizable under 
this subpart and subparts H or K will be first considered under the 
latter subparts; if not payable under any of those subparts, the claim 
will be considered under this subpart.
    (2) A claim may not be paid under this subpart if it is covered by 
the Federal Tort Claims Act (subpart E) or the Foreign Claims Act 
(subpart J). (See 10 U.S.C. 2733(b)(2)).
    (3) Where a Status of Forces Agreement or other agreement provides 
for host country adjudication of a claim, the treaty process may be the 
claimants exclusive remedy (see subpart G). Where a foreign country is 
responsible for adjudication of the claim under the terms of such an 
agreement, it may not be paid under the provisions of this subpart. If 
the foreign country refuses to recognize legal responsibility for the 
claim, or to consider it under applicable treaty provisions, the chief 
of a command claims service or, where the estimated value of the claim 
is within USARCS authority, the Commander, USARCS may authorize 
adjudication of the claim under this subpart. The mere fact a foreign 
country fails to pay the claims on its merits is not sufficient basis 
for invoking this authority.
    (b) Claims based upon multiple acts or theories of liability. Where 
claims cognizable under this subpart are based upon more than one act 
or injury and where one or more of the acts or injuries are also 
cognizable under the FTCA (subpart D) (for example, claims alleging 
acts of medical malpractice both in a foreign country and in the United 
States or claims alleging negligence in the conduct of a noncombat 
activity), the claims will be processed as follows:
    (1) Meritorious claims.
    (i) If the primary cognizable act or incident upon which the claim 
is based is not cognizable under subpart D, the claim may be considered 
and paid under this subpart. However, the settlement agreement must 
expressly release the United States from any further liability under 
the FTCA or any other statute or regulation for all acts or incidents 
upon which the claim was based. If the claim is over $25,000, any 
proposed settlement will be coordinated with USARCS prior to final 
action.
    (ii) If the primary cognizable act or incident upon which the claim 
is based is cognizable under subpart D, the claim will be first 
considered under subpart D. If the claim is determined by proper 
authority to be nonmeritorious under subpart D but meritorious under 
this subpart (for example, negligence occurred overseas but none 
occurred in the United States or there is no negligence in the conduct 
of a noncombat activity), it may be considered and paid under this 
subpart. However, an agreed settlement must be reached that expressly 
releases the United States from further liability under the FTCA or any 
other statute or regulation for all acts or incidents upon which the 
claim was based. If the claim was presented in an amount over $25,000, 
any proposed settlement will be coordinated with USARCS.
    (2) Nonmeritorious claims. Where claims are based upon multiple 
acts or incidents, some or all of which may be cognizable under subpart 
D (Federal Tort Claims Act (FTCA)), extreme care will be taken prior to 
any disapproval based upon this subpart. Whether a claim is covered by 
Cognizability under the FTCA is a litigable issue. Such claims will be 
disapproved under this subpart only as follows:
    (i) A claim presented in an amount not over $25,000, may be 
disapproved by an office with settlement authority having jurisdiction 
over the claim only if the claim is determined to be nonmeritorious 
under both this subpart and subpart D; however the disapproval 
procedures established in subpart D must be fully satisfied. In such 
cases, the disapproval notification will advise the claimant of his or 
her concurrent rights to appeal the disapproval under this subpart or 
to institute suit under the FTCA. (See Sec. 536.63.) In case of doubt 
concerning the applicability of this paragraph, the question will be 
referred to USARCS.
    (ii) Claims of the type covered by this paragraph, which are 
presented in an amount over $25,000, will be disapproved only by the 
USARCS.
    (c) Claims in litigation. Disposition under this subpart of any 
claim of the type covered by this paragraph that goes into litigation 
in any State or Federal court under any State or Federal statute or 
ordinance will be suspended pending disposition of such litigation, and 
the claim file will be forwarded to USARCS. The Commander, USARCS, in 
coordination with the U.S. Department of Justice, may determine that 
final disposition under this subpart during pendency of the litigation 
is in the best interests of the United States. This paragraph will also 
apply to any litigation brought against any agent of the United States 
in his or her individual capacity that is based upon the same acts or 
incidents upon which a claim under the subpart is based.


Sec. 536.53  Presentation of claim.

    (a) When claim must be presented. A claim may be settled under this 
subpart only if presented in writing within 2 years after it accrues. 
If a claim accrues in time of war or armed conflict, or if war or armed 
conflict intervenes within 2 years after it accrues, and if good cause 
is shown, the claim may be presented not later than 2 years after war 
or armed conflict is terminated. As used in this paragraph, a war or 
armed conflict is one in which any Armed Force of the United States is 
engaged. The dates of commencement and termination of an armed conflict 
must be established by concurrent resolution of Congress or by 
determination of the President.
    (b) Where claim must be presented. A claim must be presented to an 
agency or instrumentality of the DA. However, the statute of 
limitations is tolled if a claim is filed with another Government 
agency and forwarded to the DA within 6 months, or if the claimant 
makes inquiry of the DA concerning his or her claim within 6 months 
after it was filed with another agency of the Government. If a claim is 
received by an official of the DA who is not a claims approval or 
settlement authority under this subpart, the claim will be transmitted 
without delay to the nearest claims office or JA office for delivery to 
such an office.


Sec. 536.54  Procedures.

    So far as not inconsistent with this subpart, the claims procedures 
set forth in subpart B will be followed. Subrogated claims will be 
processed as prescribed in Sec. 536.20(b).


Sec. 536.55  Law applicable to liability.

    (a) Claims arising within the United States, and its territories, 
commonwealths and possessions. As to claims arising in the United 
States, its territories, commonwealths, and possessions, the law of the 
place where the act or omission occurred will be applied in determining 
liability and the effect of contributory negligence on the claimant's 
right to recover damages. However, theories of strict or absolute 
liability will not be applicable to claims under this subpart.
    (b) Claims arising within foreign countries.
    (1) For claims arising in a foreign country, liability of the 
United States will be assessed by reference to the law of the District 
of Columbia applicable to torts committed in and having their operative 
effect in the District (i.e., District of Columbia choice of law rules 
will not be applicable). The United States shall be liable in the same 
manner and to the same extent as a private individual under like 
circumstances, except that theories of absolute or strict liability may 
not be applied under this subpart. Damages will be determined under the 
provisions of Sec. 536.56 through Sec. 536.59.
    (2) The law of the place in which the alleged negligent act 
occurred will be applied to determine the effect of the claimant's own 
negligence on the merits of the claim. Where there is no law on this 
issue, the MCA requires application of traditional rules of 
contributory negligence.
    (3) In traffic accident cases, questions of negligence, and the 
degree of the claimant's comparative negligence, will be evaluated 
based on the traffic and vehicle safety laws and regulations of the 
country in which the accident occurred, but only to the extent they are 
not specifically superseded or preempted by U.S. military traffic 
regulations. Likewise, where a claim is based on the failure to comply 
with some safety or regulatory standard, the standard applicable at the 
time and in the place where the claim arose will be used, rather than 
any comparable standard in the District of Columbia.


Sec. 536.56  Measure of damages for property claims.

    (a) General. The measure of damages in property claims arising in 
the United States or its possessions will be determined in accordance 
with the law of the place where the incident occurred. The measure of 
damages in property claims arising overseas will be determined in 
accordance with the law of the District of Columbia (see 
Sec. 536.55(a)). However, punitive or exemplary damages, including 
damages considered punitive in nature under 28 U.S.C. 2674, and 
interest on any settlement are not payable.
    (b) Proof of damage. The information listed in paragraphs (b)(1) 
thru (4) (similar to that required by 28 CFR 14.4(c) (DA Pam 27-162, 
appendix H)) will be submitted by a claimant to substantiate a claim.
    (1) Proof of ownership.
    (2) Detailed statement of amount claimed for each item of property.
    (3) Itemized receipt or estimate for all repairs.
    (4) Statement giving date of purchase, price, and, where not 
economically repairable, the salvage value.
    (c) Appraisals. The assistance of appraisers should be used in all 
claims where, in the opinion of the claims officer, an appraisal is 
reasonably necessary and useful in effectuating the administrative 
settlement of claims. (See Sec. 536.26 for procedures on appraisals.)


Sec. 536.57  Measure of damages in injury or death claims arising in 
the United States or its possessions.

    Measure of damages in injury or death claims arising in the United 
States or its possessions will be assessed as follows:
    (a) Where an injury or an injury resulting in death arises within 
the United States or its possessions, the measure of damages will be 
determined in accordance with the law of the State or possession 
wherein the injury arises. However, punitive or exemplary damages, 
including damages considered punitive in nature under 28 U.S.C. 2674, 
and interest on any settlement are not payable.
    (b) The information listed in paragraph (b)(1) thru (7) (similar to 
that required by 28 CFR 14.4(a) (DA Pam 27-162, appendix H)) will be 
submitted by a claimant to substantiate a wrongful death claim:
    (1) Authenticated death certificate or other competent evidence 
showing date and cause of death and age of decedent.
    (2) Decedent's employment and occupation at time of death, 
including salary or earnings and duration of last employment or 
occupation.
    (3) Names, addresses, birth dates, kinship, and marital status of 
survivors.
    (4) Identification of persons dependent on decedent for support at 
time of death and the degree of support provided.
    (5) Decedent's general physical and mental condition at time of 
death.
    (6) Itemized bills or receipts for medical and burial expenses.
    (7) If damages for pain and suffering are claimed, a physician's 
statement specifying the injuries suffered, duration of pain and 
suffering, drugs administered, and decedent's physical condition 
between time of injury and time of death.
    (c) The information listed in paragraph (c)(1) thru (5) (similar to 
that required by 28 CFR 14.4(b) (DA Pam 27-162, appendix H)) will be 
submitted by a claimant to substantiate a personal injury claim:
    (1) Written report by the attending physician or dentist setting 
forth the--
    (i) Nature and extent of injury.
    (ii) Nature and extent of treatment.
    (iii) Degree of temporary or permanent disability.
    (iv) Prognosis.
    (v) Period of hospitalization.
    (vi) Diminished earning capacity.
    (2) Itemized bills or receipts for medical, dental, and hospital 
expenses.
    (3) If the prognosis includes future treatment, a statement of 
expected expenses for such treatment.
    (4) If the claim includes lost time from employment, a statement by 
the employer showing the actual time lost and wages and/or salary lost.
    (5) If the claim includes lost income by a self-employed claimant, 
documentary evidence of such loss.


Sec. 536.58  Measure of damages in injury or death claims arising in 
foreign countries.

    (a) Where a claim for an injury, or injury resulting in death, 
arises outside of the United States or its possessions, the elements of 
damages payable under this subpart will be the same as those payable in 
a similar claim arising under the law of the District of Columbia 
applicable to torts committed in and having their operative effect in 
the District of Columbia. The amount paid will be based on generally 
accepted economic principles. All awards for future payments of 
economic damages will be discounted to present value. Awards under this 
subpart will be reduced by any benefits which have been or are 
reasonable likely to be paid, if the benefit or payment is from the 
general revenues of the United States and the claimant did not 
contribute to or purchase the benefit. In death cases, taxes and 
personal consumption will be deducted from any award for lost economic 
contribution or lost earnings. Punitive or exemplary damages, including 
damages considered punitive in nature under 28 U.S.C. 2674, and 
interest on any settlement are not payable.
    (b) The information listed in Sec. 536.57(b) or (c), as 
appropriate, will be submitted by the claimant to substantiate a claim.
    (c) A claimant who alleges a serious personal injury resulting in 
temporary or permanent disability should be examined by an independent 
physician or other medical specialist. The purpose of the examination 
is not just to confirm the impairment but also to help assess its 
extent, prognosis and treatment. See Sec. 536.27 for independent 
medical examination procedures.


Sec. 536.59  Failure to substantiate a claim.

    (a) The Government is not obligated to take final action on a claim 
until it has been supported by the claimant with specific facts 
substantiated by appropriate documentary evidence, reports of 
investigation, medical records, or witness statements. As the burden of 
proof is on the claimant, the failure to substantiate a claim within a 
reasonable time can be the basis for denial of the claim. Upon request, 
the claimant must--
    (1) Provide the documentation required by Secs. 536.56 through 
536.58.
    (2) Undergo necessary medical examinations.
    (3) Permit questioning of the claimant, his or her witnesses, and 
treating medical personnel.
    (4) Submit an expert opinion in a professional negligence action.
    (b) Failure to comply with these requirements may provide a basis 
for denial of a claim, in full or in part.


Sec. 536.60  Structured settlement.

    (a) The use of the structured settlement device by approval and 
settlement authorities is encouraged in all appropriate cases. A 
structured settlement should not be used when contrary to the desires 
of the claimant.
    (b) Notwithstanding the above, the Commander, USARCS may require or 
recommend to higher authority that an acceptable structured settlement 
be made a condition of award notwithstanding objection by the claimant 
or his or her representative where--
    (1) Necessary to ensure adequate and secure care and compensation 
to a minor or otherwise incompetent claimant over a period of years;
    (2) Where a trust device is necessary to ensure the long-term 
availability of funds for anticipated further medical care;
    (3) Where the injured party's life expectancy cannot be reasonably 
determined.


Sec. 536.61  Settlement authority.

    (a) The Secretary of the Army, the Assistant Secretary of the Army 
(Financial Management) as designee of the Secretary or other designee 
of the Secretary of the Army must approve settlements in excess of 
$100,000.
    (b) Delegations of authority.
    (1) Disapprovals and final offers in claims acted on under the 
delegations set forth herein are subject to appeal to the authorities 
specified in paragraph (d) of this section.
    (2) The TJAG and TAJAG are delegated authority to pay up to 
$100,000 in settlement of a claim and to disapprove a claim regardless 
of the amount claimed. The Commander, USARCS will process such claims 
as prescribed in Sec. 536.62.
    (3) The Commander, USARCS, or designees, are delegated authority to 
pay up to $25,000 in settlement of a claim and to disapprove or make a 
final offer in a claim regardless of the amount claimed.
    (4) The SJA and, subject to limitations imposed by him or her, the 
chief of the command claims service of the commands listed in paragraph 
(4) (i) thru (iii) are delegated authority to pay up to $25,000 in 
settlement of a claim, regardless of the amount claimed, and to 
disapprove or make a final offer in a claim presented in an amount not 
exceeding $25,000:
    (i) USAREUR.
    (ii) Eighth U.S. Army, Korea.
    (iii) USARSO.
    (5) Area claims offices are delegated authority to pay up to 
$15,000 in settlement of a claim, regardless of the amount claimed, and 
to disapprove or make a final offer in a claim presented in an amount 
not exceeding $15,000.
    (6) Claims processing offices with approval authority are delegated 
authority to approve, in full or in part, claims presented for $5,000 
or less, and to pay claims regardless of the amount claimed provided an 
award of $5,000 or less is accepted in full satisfaction of the claim.
    (c) Settlement of multiple claims arising from a single incident.
    (1) Where a single act or incident gives rise to multiple claims 
cognizable under this subpart, and where one or more of these claims 
apparently cannot be settled within the jurisdiction of the authority 
initially acting on the claims, no final offer will be made and all 
claims will be forwarded with recommendation as to disposition to the 
authority having jurisdiction over the largest claim for a 
determination of liability.
    (2) If such authority determines that liability of the United 
States is established, he or she may return claims of lesser value to 
the field office for settlement within that office's jurisdiction. Care 
will be exercised by the field office to avoid compromising the 
discretion of the higher authority by conceding liability in claims of 
lesser amount.
    (d) Appeals. Denials or final offers on claims described as allows 
may be appealed to the official designated:
    (1) For claims presented in an amount over $100,000, final 
decisions on appeals will be made by the Secretary of the Army or 
designee.
    (2) For claims presented for $100,000 or less and any denied claim, 
regardless of the amount claimed, in which the denial was based solely 
upon an incident to service bar (FERES), on exclusionary language in a 
federal statute governing compensation of federal employees for job 
related injuries (see, for example, Sec. 536.75 (s) and (t)) or upon 
the lack of timely filing, final decisions on appeals will be made by 
TJAG or TAJAG, except that claims presented for $25,000 or less and not 
acted on by the Commander, USARCS are governed by paragraph (d)(3) of 
this section.
    (3) For claims presented for $25,000 or less, final decisions on 
appeals will be made by the Commander, USARCS, or his designee or the 
chief of a command claims service for claims acted on by an area claims 
office under such service's jurisdiction. See Secs. 536.63 and 536.64 
for rules relating to the notification of appeal rights and 
processing.)
    (e) Delegated authority. Authority delegated by this paragraph will 
not be exercised unless the claims settlement or approval authority has 
been assigned an office code.


Sec. 536.62  Claims over $100,000.

    (a) Claims cognizable under 10 U.S.C. 2733 and this subpart, which 
are meritorious in amounts over $100,000, will be forwarded to the 
Commander, USARCS, who will negotiate a settlement subject to approval 
by the Secretary of the Army, the Assistant Secretary of the Army 
(Financial Management) as designee of the Secretary or designee, or 
require the claimant to state the lowest amount that will be acceptable 
and provide appropriate justification. Tender of a final offer by the 
Commander, USARCS, constitutes an action subject to appeal. The 
Commander, USARCS, will prepare a memorandum of law with 
recommendations and forward the claim to the Secretary of the Army, or 
designee, for final action. The Secretary, or designee, will either 
disapprove the claim or approve it in whole or in part.
    (b) If one or more claims arising from an incident are approved in 
an amount over $100,000, only $100,000 will be paid from the Claims 
Appropriation, after the execution of a settlement agreement. The 
excess will be reported to the Claims Division, GAO, 441 G Street, NW, 
Washington, DC 20548, together with documents listed in Sec. 536.35(a).


Sec. 536.63  Settlement procedures.

    (a) Procedures. Approval and settlement authorities will follow the 
procedures set forth in subpart B in paying, denying, or making final 
offers on claims. A copy of the notification will be forwarded to 
Commander, USARCS. The settlement authority will notify the claimant by 
certified mail (return receipt requested) of a denial or final offer 
and the reason therefor as set forth in Sec. 536.37. The letter of 
notification will inform claimants of the following:
    (1) They must accept or appeal as provided in paragraph (b) of this 
section.
    (2) The official who will act on the appeal and that the appeal 
will be addressed to the settlement authority who last acted on the 
claim.
    (3) No form is prescribed for the appeal but claimants must fully 
set forth the grounds for appeal, or state that they appeal on the 
basis of the record as it exists at the time of denial or final offer.
    (4) The appeal must be postmarked not later than six months after 
the date of mailing of the notice of action on the claim. If the last 
day of the appeal period falls on a day on which the post office is 
closed, the next day on which it is open for business will be 
considered the final day of the appeal period.
    (b) Acceptance and appeal. For final offers, a settlement agreement 
releasing the government from all liability will be mailed along with 
the final offer notice. Claimants will be advised that they must either 
submit an appeal or accept the offer within 180 days of the date of 
mailing of the final offer notice. If they fail to do either, the offer 
will be withdrawn, the claim will be denied and the file will be closed 
without further recourse.
    (c) Companion FTCA claims. Where a claim for the same injury has 
been filed under subpart D, and the denial or final offer applies 
equally to such claim, the letter of notification must advise the 
claimant that any suit brought as to any portion of the claim filed 
under the FTCA must be brought not later than 6 months from the date of 
mailing of the notice of denial or final offer. Further, the claimant 
must be advised that if suit is brought, action on any appeal under 
this subpart will be held in abeyance pending final determination of 
such suit.


Sec. 536.64  Action on appeal.

    (a) The appeal will be examined by the settlement authority who 
last acted on the claim or his or her successor, to determine if the 
appeal complies with the requirements of this regulation. The 
settlement authority will also examine the claims investigative file; 
and decide whether additional investigation is required; ensure that 
all allegations or evidence presented by the claimant, agent, or 
attorney are documented in the file; and ensure that all pertinent 
evidence is included in the file. If the claimant states that he or she 
appeals, but does not submit supporting materials within the 180 day 
appeal period, the appeal will be treated as being on the record as it 
existed at the time of denial or final offer. Unless action under 
paragraph (b) of this section is taken, the claim and complete 
investigative file, including any additional investigation required, 
and a tort claims memorandum will be forwarded to the appropriate 
appellate authority for necessary action on the appeal.
    (b) If the evidence in the file, including information submitted by 
the claimant with the appeal and any necessary additional 
investigation, indicates the appeal should be granted, in whole or in 
part, the settlement authority who last acted on the claim or his or 
her successor will attempt to settle the claim. If a settlement cannot 
be reached, the appeal will be forwarded in accordance with paragraph 
(a) of this section.
    (c) As to an appeal that requires action by TJAG, TAJAG, or the 
Secretary of the Army or designee, the Commander, USARCS may take the 
action in paragraph (b) of this section or forward the claim together 
with a recommendation for action. All matters submitted by the claimant 
will be forwarded and considered.
    (d) Since an appeal under this subpart is not an adversary 
proceeding, no form of hearing is authorized. A request by the claimant 
for access to documentary evidence in the claims file to be used in 
considering the appeal should be granted unless access is not permitted 
by law or regulation.
    (e) If the appeal authority upholds a final offer or authorizes an 
award on appeal from a denial of a claim, the notice of the appellate 
authority's action will inform the claimant that they must accept the 
award within 180 days of the date of mailing of the notice of the 
appellate authority's action or the award will be withdrawn, the claim 
will be deemed denied and the file will be closed without further 
recourse.


Sec. 536.65  Cross-servicing of claims.

    (a) Single-service claims responsibility. Per DODD 5515.8, the DOD 
has assigned single-service responsibility to the various military 
departments for the settlement of claims in specified countries.
    (b) Claims settlement procedures. Per DODD 5515.3, the DOD has 
directed that where a single Service has been assigned a country or 
area claims responsibility, that Service will settle claims cognizable 
under 10 U.S.C. 2733 in accordance with the departmental regulations of 
that Service.


Sec. 536.66  Attorney fees.

    In the settlement of any claim pursuant to 10 U.S.C. 2733 and this 
subpart, attorney fees will not exceed 20 percent of the final cost to 
the United States of the award. On structured settlements, the cash 
payment due immediately upon final approval must be sufficient to allow 
payment of attorneys fees equal to 20% of the total cost of the 
settlement.


Sec. 536.67  Payment of costs, settlements, and judgments related to 
certain medical malpractice claims.

    (a) General. Costs, settlements, judgments cognizable under 10 
U.S.C. 1089(f) for personal injury or death caused by any physician, 
dentist, nurse, pharmacist, paramedical, or other supporting personnel 
(including medical and dental technicians, nurse assistant, therapists, 
and Red Cross volunteers meeting the criteria in AR 40-3, paragraph 2-
42) of DA will be paid provided--
    (1) The alleged negligent or wrongful actions or omissions arose in 
performance of medical, dental or related health care functions 
(including clinical studies and investigations) within the scope of 
employment;
    (2) Such personnel furnish prompt notification and delivery of all 
process served or received, and other documents, information, and 
assistance as requested; and cooperate in the defense of the action on 
its merits.
    (b) Requests for indemnification. All requests for indemnification 
under this section should be forwarded to the Commander, USARCS, for 
action using procedures contained in this subpart. (See DODD 6000.6.)


Sec. 536.68  Payment of costs, settlements, and judgments related to 
certain legal malpractice claims.

    (a) General. Costs, settlements, and judgments cognizable under 10 
U.S.C. 1054(f) for damages for injury or loss of property caused by any 
attorney, paralegal, or other member of a legal staff within DA will be 
paid provided that--
    (1) The alleged negligent or wrongful actions or omissions arose in 
connection with providing legal services while acting within the scope 
of duties or employment,
    (2) Such personnel furnish prompt notification and delivery of all 
process served or received, and other documents, information, and 
assistance as requested; and cooperate in the defense of the action on 
its merits.
    (b) Requests for indemnification. All requests for indemnification 
under this section should be forwarded to the Commander, USARCS, for 
action utilizing the procedures contained in this subpart.

Subpart D--Claims Cognizable Under the Federal Tort Claims Act


Sec. 536.69  Authority.

    The statutory authority for this subpart is the FTCA (60 Stat. 
842), (28 U.S.C. 2671-2680), as amended by the Act of 18 July 1966 
(Pub. L. 89-506; 80 Stat. 306), Pub. L. 93-253, 16 March 1974 (88 Stat. 
50), and Pub. L. 97-124, 29 December 1981, and as implemented by the 
Attorney General's Regulations (28 CFR 14.1-14.11).


Sec. 536.70  Scope.

    (a) This subpart prescribes the substantive bases and special 
procedural requirements for the administrative settlement of claims 
against the United States under the FTCA and the implementing Attorney 
General's Regulations (DA Pam 27-162, appendix H) based on death, 
personal injury, or damage to or loss of property that accrues on or 
after 18 January 1967. If a conflict exists between this subpart and 
the Attorney General's Regulations, the latter governs.
    (b) Citations to cases interpreting and applying the FTCA are 
contained in the Federal Tort Claims Handbook provided by USARCS. That 
handbook should be used in conjunction with this subpart.


Sec. 536.71  Claims payable.

    (a) Unless otherwise prescribed, claims for death, personal injury, 
or damage to or loss of property (real or personal) are payable under 
this subpart if the injury or damage is caused by negligent or wrongful 
acts or omissions of military personnel or civilian employees of the DA 
or DOD while acting within the scope of their employment under 
circumstances in which the United States, if a private person, would be 
liable to the claimant in accordance with the law of the place where 
the act or omission occurred. The FTCA is a limited consent to 
liability without which the United States is immune. Similarly, there 
is no Federal cause of action created by the Constitution that would 
permit a damage recovery because of the Fifth Amendment or any other 
constitutional provision. Immunity must be expressly waived, as by the 
FTCA.
    (b) An ``employee of the Government'' (28 U.S.C. 2671) includes the 
following categories of tortfeasors for which the Army is responsible:
    (1) Military personnel (members of the Army), including but not 
limited to--
    (i) Members on full-time active duty in a pay status, including 
members--
    (A) Assigned to units performing active service.
    (B) Serving as ROTC instructors. (Excludes Junior ROTC instructor 
unless on active duty.)
    (C) Serving as NG instructors or advisors.
    (D) On duty or training with other Federal agencies, for example, 
National Aeronautics and Space Administration, DOD, State, Navy, or Air 
Force.
    (E) Assigned as students or ordered into training at a nonFederal 
civilian educational institution, hospital, factory, or other industry. 
(This does not include members on excess leave.)
    (F) On full-time duty at nonappropriated fund activities.
    (G) Of the USAR and ARNG on active duty under Title 10.
    (ii) Members of Reserve Units (other than members of the ARNG under 
subpart F) during periods of inactive duty training and active duty 
training, including ROTC cadets who are reservists while they are at 
summer camp.
    (iii) Members of the ARNG while engaged in training or duty under 
Title 32 U.S.C. section 316, 502, 503, 504, or 505 for claims arising 
on or after 29 December 1981.
    (2) Civilian officials and employees of both the DOD and DA (there 
is no practical significance to the distinction between the terms 
``official'' and ``employee'') including but not limited to--
    (i) Civil Service and other full-time employees of both the DOD and 
DA paid from appropriated funds.
    (ii) Contract surgeons (10 U.S.C. 1091 4022; AR 40-1, paragraph 4-
2) and consultants (10 U.S.C. 1091; AR 40-1, paragraph 4-3; CPR A-9; 
FPM chapter 304) where ``control'' is exercised over physician's day to 
day practice.
    (iii) Employees of nonappropriated funds if the particular fund is 
an instrumentality of the United States and thus a Federal agency. In 
determining whether or not a particular fund is a ``Federal agency,'' 
consider whether the fund is an integral part of the Army charged with 
an essential DA operational function and the degree of control and 
supervision exercised by DA personnel. Members or users, as 
distinguished from employees of nonappropriated funds, are not 
considered Government employees; the same is true of family child care 
providers. However, claims arising out of the use of certain 
nonappropriated fund property, or the acts or omissions of family child 
care providers, may be payable from such funds under subpart L as a 
matter of policy, even when the user is not within the scope of 
employment and the claim is not otherwise cognizable under any of the 
other authorizations in this regulation.
    (iv) Prisoners of war and interned enemy aliens.
    (v) Civilian employees of the District of Columbia National Guard, 
including those paid under ``service contracts'' from District of 
Columbia funds.
    (vi) Civilians serving as ROTC instructors paid from Federal funds.
    (vii) National Guard technicians employed under 32 U.S.C. 709(a) 
for claims accruing on or after 1 January 1969 (Pub. L. 90-486, 13 Aug. 
1968; 82 Stat. 755).
    (3) Persons acting in an official capacity for the DOD or DA 
whether temporarily or permanently in the service of the United States 
with or without compensation including but not limited to--
    (i) ``Dollar a year'' personnel.
    (ii) Members of advisory committees, commissions, boards, or the 
like.
    (iii) Volunteer workers in an official capacity acting in 
furtherance of the business of the United States. The general rule with 
respect to volunteers is set forth in 31 U.S.C. 665(b), which provides 
that, ``No officer or employee of the United States shall accept 
voluntary service for the United States or employ personal service in 
excess of that authorized by law, except in cases of emergency 
involving the safety of human life or the protection of property.'' 
Title 5, U.S.C., section 3111(c) specifically provides that student 
volunteers employed thereunder will be considered Federal employees for 
purposes of the FTCA. The same classification is applied by 10 U.S.C. 
1588 to museum and family support program volunteers. The Army is 
permitted to accept and use certain volunteer services in Army family 
support programs as authorized by Pub. L. 98-94, September 24, 1983. 
Red Cross volunteers meeting the criteria set forth in AR 40-3, 
paragraph 2-42, are also considered to be employees of the United 
States for claims purposes.
    (iv) Loaned servants. Employees who are permitted to serve another 
employer may be considered ``loaned servants,'' provided the borrowing 
employer has the power to discharge the employee, control and direct 
the employee, and decide how he or she will perform the tasks. Whoever 
has retained those powers is liable for the employee's torts under the 
principle of respondent superior. Where those elements of direction and 
control have been found, the United States has been liable; for 
example, for the torts of Government employees loaned for medical 
training and emergency assistance and county and state employees 
discharging Federal programs.
    (c) ``Scope of employment'' means acting in ``line of [military] 
duty'' (28 U.S.C. 2671) and is determined in accordance with principles 
of respondent superior under the law of the jurisdiction in which that 
act or omission occurred. Determination as to whether a person is 
within a category listed in paragraph (b)(3) of this section will 
usually be made together with the scope determination. Local law should 
always be researched, but the novel aspects of the military 
relationship should be kept in mind in making a scope determination.
    (d) ``Line of duty'' determinations under AR 600-8-1 are not 
determinative of scope of employment. ``Joint venture'' situations are 
likely to be frequent where the Federal employee is performing 
federally assigned duties but is under actual direction and control of 
a non-Federal entity; for example, a Federal employee in training at a 
non-Federal entity or ROTC instructors at civilian institutions. This 
could also occur where the employee is working for another Federal 
agency. Furthermore, dual purpose situations are commonplace where 
benefits to the Government and the member or employee may or may not be 
concurrent; for example, use of privately owned vehicles at or away 
from assigned duty station, or permanent change of station with delay 
en route. (See subpart E for the handling of certain claims arising out 
of nonscope activities of members of the Army.)


Sec. 536.72  Law applicable.

    The whole law of the place where the act or omission occurred, 
including choice of law rules, will be applied in the determining 
liability and quantum. Where there is a conflict between the local law 
and an express provision of the FTCA, the latter governs.


Sec. 536.73  Subrogation.

    Claims involving subrogation will be processed as prescribed in 
Sec. 536.20(b) except where that section is inconsistent with the 
provisions of this subpart or the Attorney General's regulations.


Sec. 536.74  Indemnity or contribution.

    (a) Sought by the United States. It is the policy of the Department 
of Justice that, if the claim arises under circumstances in which the 
Government is entitled to contribution or indemnity under a contract of 
insurance or the applicable law governing joint tortfeasors, the third 
party will be notified of the claim and will be requested to honor its 
obligation to the United States or to accept its share of joint 
liability. (See Secs. 536.28 and 536.29.) If the issue of indemnity or 
contribution is not satisfactorily adjusted, the claim will be 
compromised or settled only after consultation with the Department of 
Justice as provided in Sec. 536.75(s).
    (b) Claims for indemnity or contribution. Claims for indemnity or 
contribution from the United States will be compromised or settled 
under this subpart, if liability exists under the applicable law, 
provided the incident giving rise to such claim is otherwise cognizable 
under this subpart. As to such claims where the exclusivity provisions 
of the FECA may be applicable, see Sec. 536.75(s).
    (c) ARNG vehicular claims.
    (1) When a vehicle used by the ARNG, or a POV operated by a member 
or employee of the ARNG, is involved in an incident under circumstances 
that make this subpart applicable to the disposition of administrative 
claims against the United States and results in personal injury, death, 
or property damage, and a remedy against the State, or its insurer is 
indicated, the responsible area claims authority will monitor the 
action against the State or its insurer and encourage direct settlement 
between the claimant and the State or its insurer.
    (2) Where the State is insured, direct contact with State or ARNG 
officials rather than the insurer is desirable. Regular procedures will 
be established and followed wherever possible. Such procedures should 
be agreed on by both local authorities and the appropriate claims 
authorities subject to concurrence by Commander, USARCS. Such 
procedures will be designed to ensure that local authorities and U.S. 
authorities do not issue conflicting instructions for processing claims 
and, whenever possible and in accordance with governing local and 
Federal law, a mutual arrangement for disposition of such claims as in 
paragraph (d) of this section is worked out.
    (3) Amounts recovered or recoverable by claimant from any insurer 
(other than claimant's insurer who has obtained no subrogated interest 
against the United States) will be deducted from the amount otherwise 
payable.
    (d) Claims arising out of training activities of NG personnel. 
Contribution may be sought from the State involved where it has waived 
sovereign immunity or has private insurance that would cover the 
incident giving rise to the particular claim. Where the State involved 
rejects the request for contribution, the file will be forwarded to the 
Commander, USARCS. The Commander, USARCS, is authorized to enter into 
an agreement with a State, territory, or commonwealth to share 
settlement costs of claims generated by the ARNG personnel or 
activities of that political entity.


Sec. 536.75  Claims not payable.

    Exclusions listed in paragraphs (a) through (l) of this section are 
based upon the wording of 28 U.S.C. 2680. The remainder are based 
either on statute or court decisions. The interpretation of these 
exclusions is a Federal question to be decided under Federal law; for 
example, the tort of assault and battery listed in 28 U.S.C. 2680(h) 
should be interpreted in accordance with Federal common law principles, 
and where State law differs, the former will prevail. Where a claim is 
considered not payable under this paragraph, consult DA Pam 27-162, 
chapter 8 for other methods of handling. A claim is not payable under 
this subpart if it--
    (a) Is based upon an act or omission of an employee of the 
Government, exercising due care, in the execution of a statute or 
regulation, whether or not such statute or regulation is valid (28 
U.S.C. 2680(a)). Where no negligence on the part of any Government 
employee is shown, and the only ground for the claim is the contention 
that the same conduct by a private individual would be tortious, or 
that the statute or regulation authorizing the project was invalid, the 
sole question is the existence of the statute or regulation, not its 
validity. However, a claim should not be denied based solely on this 
exception without the prior approval of the Commander, USARCS.
    (b) Is based upon the exercise or performance or the failure to 
exercise or perform a discretionary function or duty on the part of a 
Federal agency or an employee of the Government, whether or not the 
discretion involved is abused (28 U.S.C. 2680(a)). A claim should not 
be denied solely because of this exception without the prior approval 
of the Commander, USARCS.
    (c) Arises out of the loss, miscarriage, or negligent transmission 
of letters or postal matter (28 U.S.C. 2680(b)). It should be noted 
that administrative settlement and payment of certain mail claims is 
authorized under subparts C and F. Further, a limited indemnity may be 
obtained through other channels for the loss or damage to registered, 
insured, and C.O.D. mail (39 U.S.C. 5001, et seq.) (See DA Pam 27-162, 
paragraph 8-61). The exclusion may not be applicable where State law 
recognizes a cause of action for invasion of privacy.
    (d) Arises with respect to the assessment or collection of any tax 
or customs duty, or the detention of any goods or merchandise by any 
customs or other law-enforcement officer (28 U.S.C. 2680(c)). Adequate 
remedies are available to anyone aggrieved by the application of the 
tax or customs laws of the United States (26 U.S.C. 6213), or the 
claimant may pay the tax and sue in the U.S. Claims Court or the 
appropriate U.S. District Court for a refund (28 U.S.C. 1491 and 
1346(a)(1)). Other remedies are also available for the loss or 
detention of goods or merchandise; for example, Tucker Act, bailment 
provisions of the MCA (chap. 3), or destruction of evidence for 
scientific analysis (AR 190-22, paragraph 3-8). With respect to the 
detention of goods by a law enforcement officer, this exception may 
apply to seizures in connection with an arrest.
    (e) Is cognizable under the Suits in Admiralty Act (46 U.S.C. 740-
752) or under the Public Vessels Act (46 U.S.C. 781-790). To be 
cognizable under this exclusion, the tort must have a maritime situs 
and a maritime nexus, otherwise the tort is cognizable under the FTCA. 
Maritime claims may be considered under The Army Maritime Claims 
Settlement Act (10 U.S.C. 4801, et seq.) and subpart H, and they must 
be settled or suit filed within 2 years of accrual of claim.
    (f) Arises out of an act or omission of any employee of the 
Government in administering the provisions of the Trading With the 
Enemy Act (50 U.S.C. appendix 1-31; 28 U.S.C. 2680(e)). That Act 
provides that the sole remedy of any person claiming money or other 
property held by the Alien Property Custodian is as provided by that 
Act. This exception should be broadly construed.
    (g) Is for damages caused by the imposition or establishment of a 
quarantine by the United States (28 U.S.C. 2680(f)). Claims for failure 
to impose a quarantine or delay in enforcing a quarantine come within 
the discretionary function exclusion discussed in paragraph (b) of this 
section.
    (h) Arises out of an assault or battery (28 U.S.C. 2680(h)).
    (1) Often artful pleading is employed to create a cause of action 
in negligence, such as alleging negligent supervision; such does not 
create a separate cause of action as the exception bars a claim arising 
out of an assault and battery even though there may have been negligent 
supervision. Under the 1974 amendment to 28 U.S.C. 2680(h), the 
activities of law enforcement officers that result in an assault or 
battery are removed from this exception and can create a cause of 
action. Such activities have accounted for most of the past claims and 
litigation involving the assault and battery exception.
    (2) Therefore, any claim alleging use of threatening or deadly 
force, especially by a law enforcement officer, must be thoroughly 
investigated to determine whether the nature, amount, and use of such 
force was justified under the circumstances. (See paragraph (i) of this 
section for definition of investigative or law enforcement officer). 
Also, section 2680(h) does not apply to a claim arising out of 
performance of medical, dental or related health care functions (10 
U.S.C. 1089(e)).
    (i) Arises out of false imprisonment, false arrest, malicious 
prosecution or abuse of process (28 U.S.C. 2680(h)). This exception has 
universal applicability to tall acts of false imprisonment, false 
arrest, malicious prosecution, or abuse of process when committed by an 
employee of the United States in the scope of employment. However, by 
amendment to 28 U.S.C. 2680(h), this exception is not applicable on or 
after 16 March 1974 to such actions when committed by an investigative 
or law enforcement officer of the United States who is empowered by law 
to execute searches, seize evidence, or make arrests for violations of 
Federal law (88 Stat. 50). Such employees are considered to include 
military police, but not post exchange detectives. Whether or not a 
Federal law enforcement officer is involved, the defenses of probable 
cause, reasonableness, and good faith are available, provided the 
arrest is otherwise lawful under State law. DA Pam 27-162, paragraph 8-
8c, refers to certain claims based on unjust convictions.
    (j) Arises out of libel, slander, misrepresentation, or deceit (28 
U.S.C. 2680(h)). The misrepresentation exception has been broadly 
construed to include negligent as well as intentional 
misrepresentation. It has not been applied in situations involving 
negligent failure to perform some operational task or to convey 
information related to public safety independent of any secondary 
misstatement. Where an erroneous medical diagnosis is made, the 
exception does not apply because malpractice is the gravamen of the 
action and the misrepresentation incidental. Similarly, the 
misrepresentation exception was held not applicable where the United 
States sold bomb casings to a scrap dealer expressly warranting that 
they were safe and fit for scrap metal processing, and one of the 
casings exploded. Before this exception can be applied in the 
determination of an administrative tort claim, the claims investigation 
must consider the nature of the Government's acts or omissions, as well 
as the information upon which the claimant may have relied to his or 
her detriment.
    (k) Arises out of interference with contract rights (28 U.S.C. 
2680(h)). This exception includes both interference with existing 
contract rights and interference with prospective or executed contract 
rights or economic advantage.
    (l) Arises from the fiscal operations of the Department of the 
Treasury or from the regulation of the monetary system (28 U.S.C. 
2680(i)). This exception includes all disbursing operations of the DA 
or other military services. However, such claims may be forwarded 
through Army finance channels for consideration.
    (m) Arises out of the combat activities of the military or naval 
forces, or the Coast Guard, during time of war (28 U.S.C. 2680(j)). 
``Combat activities'' is defined in the glossary.
    (n) Arises in a foreign country (28 U.S.C. 2680(k)). There is no 
clear delineation of what constitutes a foreign country. However, the 
exception has been held applicable to claims arising in a leased 
military base in Newfoundland; in the American Embassy in Bangkok, 
Thailand; on Okinawa under the de facto sovereignty of the United 
States; on Kwajalein under the trusteeship of the United States; and to 
various occupied countries. (See subpart J and DA Pam 27-162, paragraph 
821, for handling of certain claims arising in a foreign country.) 
Where the actionable negligence has occurred in the United States and 
only the consequences occurred in a foreign country, this exception has 
not been applied.
    (o) Arises from the activities of the Tennessee Valley Authority 
(28 U.S.C. 2680(i) and 16 U.S.C. 831 et seq.).
    (p) Arises from the activities of the Panama Canal Commission (28 
U.S.C. 2680(m)). (See 76A Stat. 22 through 25, and 22 U.S.C. 3761.) 
Claims accruing after the effective date of the Panama Canal Treaty (1 
October 1979) may be cognizable under either the FCA or the MCA.
    (q) Arises from the activities of a Federal land bank, a Federal 
intermediate credit bank, or bank for cooperatives (28 U.S.C. 2680(n)).
    (r) Is for the personal injury or death of a member of the Armed 
Forces of the United States incurred incident to service, or for damage 
to a member's property incurred incident to service (Feres v. United 
States, 340 U.S. 135 (1950)). (See Sec. 536.25 and DA Pam 27-162, 
paragraphs 8-26 through 8-28.) Currently the most significant 
justification for the incident to service doctrine is the availability 
of alternative compensation systems, and the fear of disrupting the 
military command relationship. Other supportive factors often cited by 
the courts are the service member's duty status, location, and receipt 
of military benefits at the time of the incident.
    (1) The exception applies to members of the Army, Navy, Air Force, 
Marine Corps, and Coast Guard, including the Reserve Components of the 
Armed Forces. (See 10 U.S.C. 261.) The exception also applies to 
service members on the Temporary Disability Retired List, on 
convalescent leave, and on the extended enlistment program; to service 
academy cadets; and to members of visiting forces in the United States 
under the SOFA between the parties to the North Atlantic Treaty or 
similar international agreements.
    (2) The incident to service doctrine has been extended to 
derivative claims where the directly injured party is a service member. 
Third party indemnity claims are barred.
    (s) Is for the personal injury or death of a Government employee 
for whom benefits are provided by the FECA (5 U.S.C. 8101-8150). (See 
DA Pam 27-162, paragraph 8-25.) Who is a Government employee under the 
Act is defined in the Act itself (5 U.S.C. 8101), but the term is not 
limited to Federal Civil Service employees. The term ``Government 
employee'' can include certain ROTC cadets (5 U.S.C. 8140) and State or 
local law enforcement officers engaged in apprehending a person for 
committing a crime against the United States (5 U.S.C. 8191), certain 
nurses, interns, or other health care personnel, for example, student 
nurses, (5 U.S.C. 5351, 8144), and certain Army Community Service 
Volunteers (10 U.S.C. 1588; AR 608-1).
    (1) This Act provides that benefits paid under this Act are 
exclusive and instead of all other liability of the United States, 
including that under a Federal tort liability statute (5 U.S.C. 
8116(c)). It extends to derivative claims, subsequent malpractice for 
treatment of a covered injury, injuries for which there is no scheduled 
compensation, and employee harassment claims for which other remedies 
are available (42 U.S.C. 2000e).
    (2) Is from a federal civilian employee based on a allegation of a 
violation of some employment right or is otherwise one for which the 
rules governing federal civilian employment provide a comprehensive 
remedy. Such claims often allege emotional distress or psychological 
injury as a result of the alleged misconduct. Administrative remedies 
under the civil service regulations are the employee's exclusive 
remedy. Bush v. Lucas 462 U.S. 367 (1983). This exception does not bar 
third party indemnity claims. When there is doubt as to whether or not 
this exception applies, the claim should be forwarded through claims 
channels to the Commander, USARCS, for an opinion.
    (t) Is for the personal injury or death of an employee including 
nonappropriated fund employees, for whom benefits are provided by the 
Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 901-
950). An employee of a nonappropriated fund instrumentality is covered 
by the Act (5 U.S.C. 8171). This is exclusive for covered employees, 
similar to that under the FECA.
    (u) Is for the personal injury or death of any employee for whom 
benefits are provided under any workmen's compensation law if the 
premiums of the workmen's compensation insurance are retrospectively 
rated and charged as an allowable, allocable expense to a cost-type 
contract. (See Sec. 536.28 and DA Pam 27-162, paragraph 8-25.) If, in 
the opinion of an approval or settlement authority the claim should be 
considered payable (for example, the injuries did not result from a 
normal risk of employment or adequate compensation is not payable under 
workmen's compensation laws), the file will be forwarded with 
recommendations through claims channels to the Commander, USARCS who 
may authorize payment of an appropriate award.
    (v) Is for taking of property as by technical trespass or 
overflight of aircraft and of a type contemplated by the Fifth 
Amendment to the U.S. Constitution, or otherwise constitutes ataking. 
(See paragraph 2c of AR 405-15 and DA Pam 27-162, paragraphs 8-46, 8-
74, and 8-75.)
    (1) The Fifth Amendment to the U.S. Constitution provides in part 
``. . . . nor shall private property be taken for public use, without 
just compensation.''
    (2) Claims for takings without just compensation are action-able 
under the Tucker Act (28 U.S.C. 1346(a)(2) and 1491, Appendix. A., 24 
Stat. 505 (1887)). Prior to referring a claimant to a Tucker Act 
remedy, the applicability of the procedures under AR 405-15 should be 
considered by referral to appropriate Corps of Engineers authorities. 
(See DA Pam 27-162, paragraph 8-75.)
    (w) Is for damage from or by flood or flood waters at any place (33 
U.S.C. 702c). This exception is broadly construed and includes 
multipurpose projects and all phases of construction and operation.
    (x) Is for damage to property or for any death or personal injury 
occurring directly or indirectly as a result of the exercise of 
performance of, or failure to exercise or perform, any function or duty 
by any Federal agency or employee of the Government to carry out the 
provisions of the Federal Civil Defense Act of 1950 during the 
existence of a civil defense emergency (50 U.S.C. Appendix 2291-2297).
    (y) Is based solely upon a theory of absolute liability or 
liability without fault. Either a negligent or wrongful act is required 
by the FTCA, and some type of malfeasance or nonfeasance is required 
(Dalehite v. United States, 346 U.S. 15 (1953); Laird v. Nelms, 406 
U.S. 797 (1972)). Thus, liability does not arise by virtue either of 
United States ownership of an inherently dangerous commodity or of 
engaging in extra-hazardous activity.
    (z) Is for patent or copyright infringement. (See AR 27-60).
    (aa) Claims for damage to property of a State, commonwealth, 
territory, or the District of Columbia caused by ARNG personnel engaged 
in training or duty under 32 U.S.C. 316, 502, 503, 504, or 505 who are 
assigned to a unit maintained by that State, commonwealth, territory, 
or the District of Columbia will not be paid without the express 
approval of the Commander, USARCS.
    (bb) Is for damage to property or for any death or personal injury 
arising out of the activities of any Federal agency or employee of the 
Government in carrying out the provisions of the Federal Disaster 
Relief Act of 1954 (P.L. 93-288, Sec. 403, 88 Stat. 143). The Act 
requires the local beneficiary (State or local government) to hold the 
Government harmless and to assume the defense of all claims arising 
from the removal of debris and wreckage from public or private 
property.
    (cc) Arises from activities that present a nonjusticiable political 
question. The courts search for six factors, as follows, any one of 
which is grounds for dismissal:
    (1) A commitment of the issue to a coordinate branch of Government 
by the text of the Constitution.
    (2) A lack of judicially discoverable and manageable standards for 
resolving it.
    (3) The impossibility of deciding without a policy determination 
calling for non-judicial discretion.
    (4) The impossibility of undertaking independent resolution without 
expressing lack of respect for coordinate branches of Government.
    (5) An unusual need for unquestioning adherence to a political 
decision already made.
    (6) The potential for embarrassment from multiple pronouncements by 
various departments on one question.


Sec. 536.76  Claims under other laws and regulations.

    Any claim that may be settled under any exclusive or specific 
authorization discussed in DA Pam 27-162, chapter 8, will be settled 
under such authority in preference to settlement under this subpart. 
Guidance concerning application of this policy will be obtained from 
USARCS.


Sec. 536.77  Procedures.

    (a) General. Unless inconsistent with the provisions of this 
subpart, the procedures for the investigation and processing of claims 
set forth in subpart B will be followed.
    (b) Claims arising out of tortious conduct by ARNG personnel 
defined in subpart 536.71(b)(1)(iii).
    (1) Notification and investigation. The procedures in Secs. 536.97 
and 536.98 will be followed in NG claims arising under the FTCA.
    (2) Claims against the U.S. Government received by agencies of the 
State. These claims will be expeditiously forwarded through the State 
adjutant general to the appropriate U.S. Army area claims office in 
whose geographic area the incident occurred.
    (c) Statute of limitations. (1) To be settled under this subpart, a 
claim against the United States must be presented in writing to the 
appropriate Federal agency within 2 years of its accrual.
    (2) For statute of limitations purposes, a claim will be deemed to 
have been presented when the appropriate Federal agency (as defined in 
the glosssary) receives from a claimant or his or her duly authorized 
agent or legal representative, an executed SF 95 or written 
notification of an incident, together with a claim for money damages, 
in a sum certain, for damage to or loss of property or personal injury 
or death. For Federal tort claims arising out of activities of the NG, 
receipt of a written claim by any full time officer or employee of the 
NG will be considered proper receipt.
    (3) A claim received by an official of the DOD will be transmitted 
without delay to the nearest Army claims processing office or area 
claims office. Inquiries concerning applicability of the statute of 
limitations to claims filed with the wrong Federal Agency will be 
referred to USARCS for resolution.
    (d) Claims within settlement authority of USARCS of the Attorney 
General. (1) A copy of each of the type of claims described below will 
be forwarded immediately to the Commander, USARCS. (Subsequent 
documents should be forwarded or added in accordance with 
Sec. 536.22(b)(2).)
    (i) Claims that appear to be of a type that must be brought to the 
attention of the Attorney General in accordance with his or her 
regulations (28 CFR 14.6).
    (ii) A claim in which the demand exceeds $25,000 or the total 
amount of all claims, actual or potential, from a single incident 
exceeds $25,000 $50,000.
    (2) USARCS is responsible for the monitoring and settlement of such 
claims and will be kept informed of the status of the investigation and 
processing thereof. Direct liaison and correspondence between USARCS 
and the field claims authority or investigator is authorized on all 
claims matters and assistance will be furnished as required.
    (e) Non-Army claims. Claims based on acts or omissions of employees 
of the United States, other than military and civilian personnel of the 
DA, civilian personnel of the DOD, and employees of nonappropriated 
fund activities of the DA will be transmitted forthwith to the nearest 
official of the employing agency; the claimant will be advised of the 
referral. (See Sec. 536.18(c) and (d) for further guidance when more 
than one Federal agency is involved.)
    (f) Acknowledgment of claim. (1) The claimant and his or her 
attorney will be kept informed by personal contact, telephonic contact, 
or mail of the receipt of his or her claim and the status of the claim. 
Formal acknowledgment of the claim in writing is required only where 
the claim is likely to result in litigation or is presented in an 
amount exceeding $15,000. In this event, the letter of acknowledgment 
will state the date of receipt of the claim by the first agency of the 
Army receiving the claim.
    (2) If it is reasonably clear to the office acknowledging receipt 
that a claim filed under the FTCA is not cognizable thereunder; for 
example, it is a maritime claim under chapter 8, or it falls under 
subparts C or F, the acknowledgment will contain a statement advising 
the claimant of the statute under which his or her claim will be 
processed. If it is not clear which subpart applies, a statement to 
that effect will be made and the claimant will be promptly advised when 
a decision is made. However all potential maritime claims will be 
handled in accordance with Sec. 536.21(b)(5).
    (3) When a claim has been amended as set forth in 
Sec. 536.20(f)(4), the amendment will be acknowledged in all cases. 
Also, the claimant will be informed that the amendment constitutes a 
new claim insofar as concerns the 6 months in which the DA is granted 
the authority to make a final disposition under 28 U.S.C. 2675(a) and 
the claimant's option thereunder will not accrue until 6 months after 
the filing of the amendment.
    (4) When a claim is improperly presented, is incomplete, or 
otherwise does not meet the requirements set forth in section 
536.20(d), the claimant or his or her representative will be promptly 
informed in writing of the deficiencies and advised that a proper claim 
must be filed within the 2 year statute of limitations.
    (g) Investigation. Claims cognizable under this regulation will be 
investigated and processed on a priority basis in order that settlement 
if indicated may be accomplished within the 6 months prescribed by 
statute.
    (h) Advice to claimant. (1) A full explanation of claims procedures 
and of the rights of the claimant will be made to the extent 
necessitated by the amount and nature of the claim.
    (2) In a case where litigation is likely, or where this course of 
action is preferred by the claimant, and it appears to be a proper case 
for administrative settlement, the claimant will be advised as to the 
advantages of administrative settlement. If the claim is within the 
jurisdiction of a higher settlement authority, the claim will be 
discussed with such authority prior to the furnishing of such advice. 
The claimant should be familiarized with all aspects of administrative 
settlement procedures including the administrative channels through 
which the claim must be processed for approval. He or she may be 
advised that administrative processing can result in more expeditious 
processing, whereas litigation may take considerable time, particularly 
in jurisdictions with crowded dockets.
    (3) If appropriate, the claimant may be informed that a tentative 
settlement can be reached for any amount, but that awards in excess of 
$200,000 are subject to approval by the Attorney General. The claimant 
should be advised that administrative filing of the claim protects him 
or her under the statute of limitations for purpose of litigation and 
that a suit can be filed within 6 months after the date of mailing of 
notice of final denial by the DA, thus potentially allowing 
negotiations to continue indefinitely. An attorney representing a 
claimant should be advised of the limitations on fees for purposes of 
administrative settlement (20 percent) and litigation (25 percent) and 
that there is no jury trial under the FTCA.
    (i) Notification to claimant of action on claim.
    (1) The filing of an administrative claim and its denial are 
prerequisite to filing suit. Any suit must be filed not later than 6 
months after notification by certified or registered mail of the denial 
of the administrative claim. Failure of a settlement authority to take 
final action on a properly filed claim within 6 months may be treated 
by the claimant as a final denial for the purposes of filing suit. If 
the claimant has provided insufficient documentation to permit 
evaluation of the claim, written notice should be given to this effect. 
Since administrative settlements are a voluntary process, the preferred 
method of negotiating is to attempt to exchange information on an open 
basis.
    (2) Upon final denial of a claim, or upon rejection by claimant of 
a partial allowance, if further efforts to reach a settlement are not 
considered feasible (Sec. 536.21(b)(1)), the settlement authority will 
inform the claimant of the action on his or her claim by certified or 
registered mail. Notification will be made as set forth in 
Sec. 536.37(b). A copy of this notification will be furnished to 
Litigation Division, OTJAG, and the Commander, USARCS. In all medical 
malpractice cases, a copy will be furnished to the Consultation Case 
Review Branch (CCRB), Office of the Surgeon Command and the SJA, Health 
Services Command.
    (3) If a claim has been presented to the DA and, also, to other 
Federal agencies, without any notification to the DA of this fact, 
final action taken by the DA prior to that of any other agency is 
conclusive on a claim presented to other agencies unless another agency 
decides to take further action to settle the claim. Such agency may 
treat the matter as a reconsideration under 28 CFR 14.9(b) unless suit 
has been filed. (See Sec. 536.82.) The foregoing applies likewise to 
Army claims in which another Federal Agency has taken final action.
    (4) If, after final denial by another agency, a claim is filed with 
the Army, the new submission will not toll the 6 months limitation for 
filing suit unless the DA treats the second submission as a request for 
reconsideration under Sec. 536.82.
    (5) In those cases where claimants exercise their option under 28 
U.S.C. 2675(a) and file suit after six months but before final agency 
action, a formal denial notice will be sent to the claimant promptly 
upon notification of the suit unless the Assistant United States 
Attorney responsible for litigation of the suit expressly requests that 
such action not be taken.


Sec. 536.78  Payment of claims.

    (a) Awards of $2,500 or less. Awards of $2,500 or less are paid 
from the claims appropriation. For procedures, see Secs. 536.32 through 
536.35. An explanation of various claims appropriations to be used is 
in Sec. 536.34.
    (b) Awards in excess of $2,500. Payment of awards in excess of 
$2,500 will be accomplished by forwarding the documents listed in 
Sec. 536.35(b) to the Claims Division, GAO, 441 G Street, NW., 
Washington, DC 20548. When an award is in excess of $25,000, evidence 
that the award has been approved by the Attorney General or designee is 
also required. (For procedures, see Secs. 536.32 through 536.35.)
    (c) Attorney as payee. If a claimant is represented by an attorney, 
both the claimant and the attorney will be designated as ``payees'' on 
the voucher (SF 1145) and the check will be delivered to the attorney 
whose address appears on the voucher.
    (d) Broker as payee. If the settlement requires the purchase of an 
annuity and establishment of a reversionary trust, the broker may be 
named as payee and required to dispose of the amount paid as set forth 
in the settlement agreement.
    (e) Attorneys fees. Attorneys' fees are limited by 28 U.S.C. 2678 
to not more than 20 percent of any award, compromise, or settlement.


Sec. 536.79  Acceptance of award.

    The acceptance by the claimant of an award, compromise, or 
settlement made pursuant to this subpart will be final and conclusive 
for all purposes and will constitute a complete release of any claim 
against the United States and against the military or civilian 
personnel of the DA, or civilian employees of the DOD whose act or 
omission gave rise to the claim by reasons of the same subject matter. 
(See Sec. 536.32 on preparing a settlement agreement.)


Sec. 536.80  Delegation of authority.

    (a) Settlement authority. (1) Subject to the approval of the 
Attorney General for payments in excess of $200,000 in a single claim 
or where the total value of all claims and potential claims arising out 
of a single incident exceeds $200,000 or as otherwise required (see 
Sec. 536.81), the following are delegated authority to settle (i.e. pay 
in full, pay in part or deny) and make final offers on claims under 
this subpart:
    (i) TJAG.
    (ii) TAJAG.
    (iii) The Commander, USARCS or designees.
    (2) Unless the Commander, USARCS alters the delegation, heads of 
area claims offices or their designated claims Judge Advocates/claims 
attorneys are delegated authority to approve and pay in full or in 
part, to disapprove, and to make final offers on claims presented for 
$25,000 or less. These offices are also authorized to approve and pay, 
regardless of the amount claimed, an agreed award of $25,000 or less, 
provided that the total value of all claims and potential claims 
arising out of a single incident does not exceed $50,000.
    (3) Notice of disapproval or final offer issued by an authority 
listed in paragraph (a) (1) and (2) of this section will be in 
accordance with Secs. 536.5(f) and 536.37 and must be accompanied by an 
explanation that the claimant may submit a written request for 
reconsideration (Sec. 536.82), in lieu of filing suit, to the 
Commander, USARCS (through the office issuing the disapproval or final 
offer) provided that the request is received prior to the expiration of 
the 6-month period provided in 28 U.S.C. 2401(b). Once received, the 
claimant will be advised in writing that the request will suspend the 
option to bring suit under 28 U.S.C. 2675(a) for 6 months from the date 
the request was received.
    (4) Heads of claims processing offices with approval authority are 
delegated authority to approve and pay, in full or in part, claims 
presented for $5,000 or less and to compromise and pay, regardless of 
the amount claimed, an agreed award of $5,000 or less, provided that 
the total value of all claims and potential claims arising out of a 
single incident does not exceed $25,000 and that the claimant agrees to 
accept the award in full satisfaction of the claim.
    (b) Office code. Authority delegated by this paragraph will not be 
exercised unless the claims settlement or approval authority has been 
assigned an office code.


Sec. 536.81  Consultation with the Department of Justice.

    (a) Consultation with the Department of Justice is required when, 
in the opinion of the Federal agency--
    (1) A new precedent or a new point of law is involved;
    (2) A question of policy is or may be involved;
    (3) The United States is or may be entitled to indemnity or 
contribution from a third party, and the agency is unable to adjust the 
third party claim;
    (4) The total amount to be paid in all claims or potential claims 
arising out of the same transaction will or may exceed $200,000;
    (5) For any reason, the compromise of a particular claim, as a 
practical matter, will control the disposition of actual or potential 
claims arising out of a single incident in which the amount to be paid 
may exceed $25,000 to $200,000; or
    (6) Where the United States, an employee, agent, or cost-plus 
contractor is involved in litigation based on a claim arising out of 
the same transaction.
    (b) Claims requiring consultation with, or approval by the 
Department of Justice will be forwarded to the Commander, USARCS. The 
Commander will refer such claims to the Assistant Attorney General, 
Civil Division, Department of Justice in accordance with section 14.7, 
Attorney General Regulations. (See DA Pam 27-162, appendix H.)


Sec. 536.82  Reconsideration.

    (a) Original approval or settlement authority.
    (1) Reconsideration. An original approval or settlement authority 
may reconsider the denial of or final offer on a claim under the FTCA 
upon request of the claimant, the claimant's authorized agent, or the 
claimant's legal representative.
    (2) Settlement correction. An original approval or settlement 
authority may reopen and correct his or her action on a claim that was 
previously settled in whole or in part (even where a settlement 
agreement has been executed) when an error contrary to the mutual 
understanding of the parties is discovered in the original action 
(e.g., a claim is settled for $15,000 but the settlement agreement was 
typed to read $1,500 and the error is not discovered until the file is 
being prepared for payment). If appropriate, a corrected payment will 
be made. The approval or settlement authority will reopen his or her 
action on a claim when he or she has reason to believe that a 
settlement was obtained by means of fraud by the claimant (or 
claimant's authorized agent or legal representative) and, if 
substantiated, will correct his or her action. The basis for any 
correction of an action will be stated in a memorandum which will be 
included in the file.
    (b) A successor approval or settlement authority.
    (1) Reconsideration. A successor approval or settlement authority 
may reconsider the denial of or final offer in a claim under the FTCA 
upon request of the claimant, the claimant's authorized agent, or the 
claimant's legal representative, only on the basis of fraud, 
substantial new evidence, errors in calculation or mistake 
(misinterpretation) of law.
    (2) Settlement correction. A successor approval or settlement 
authority may reopen and correct a predecessor's action on a claim 
which was previously settled in whole or in part for the same reasons 
as an original authority, as stated above.
    (c) All requests for reconsideration of a denial or final offer by 
a command claims service or area claims office in which full relief is 
not granted will be forwarded to the Commander, USARCS for action, with 
any additional investigative material and legal analysis generated by 
the request.
    (d) A request for reconsideration should indicate fully the legal 
or factual basis asserted as grounds for relief. Following completion 
of any investigation or other action deemed necessary for an informed 
disposition of the request, the approval or settlement authority will 
reconsider the claim and attempt to settle it by granting such relief 
as may appear warranted. When further settlement efforts appear 
unwarranted, the entire file with a memorandum of opinion will be 
referred through claims channels as outlined in Sec. 536.31. If a 
higher claims authority is unable to grant the relief requested, he or 
she will forward the claim with the recommendation to the Commander, 
USARCS, and inform the claimant of such reference.
    (e) A request for reconsideration must be filed prior to the 
commencement of suit and prior to the expiration of the 6-month period 
provided in 28 U.S.C. 2401(b). Upon timely filing, the appropriate 
authority will have 6 months from the date of filing in which to make a 
final disposition of the request, and the claimant's option under 28 
U.S.C. 2675(a) will not accrue until 6 months after the filing of the 
request. The action on the request will be effected as set forth in 
Sec. 536.77(i).
    (f) Action upon a request for reconsideration by the appropriate 
authority (either affirming the prior action or granting full or 
partial relief) constitutes final administrative disposition of a 
claim. No further requests for reconsideration will be allowed except 
on the basis of fraud. Attempted further requests for reconsideration 
on other grounds will not toll the 6-month period provided in 28 U.S.C. 
2401(b).

Subpart E--Claims Involving Government Vehicles and Property Not 
Cognizable Under Other Law


Sec. 536.83  Statutory authority.

    The statutory authority for this subpart is contained in the act of 
9 October 1962 (76 Stat. 767, 10 U.S.C. 2737). This statute is commonly 
called the ``Nonscope Claims Act.'' For the purposes of this subpart, a 
Government installation is a facility having fixed boundaries owned or 
controlled by the Government, and a vehicle includes every description 
of carriage or other artificial contrivance used, or capable of being 
used, as a means of transportation on land (1 U.S.C. 4).


Sec. 536.84  Scope.

    (a) This subpart prescribes the substantive bases and special 
procedural requirements for the administrative settlement and payment, 
in an amount not more than $1,000, of any claim against the United 
States not cognizable under any other provision of law for damage or 
loss of property, or for personal injury or death caused by a member or 
employee of the DA incident to the use of a U.S. vehicle at any 
location or incident to the use of other U.S. property on a Government 
installation.
    (b) Any claim in which there appears to be a disputed issue 
relating to whether the employee was acting within the scope of 
employment will be considered under subparts C, D, and F of this part. 
Only when all parties, to include an insurer, agree that there is no 
``in scope'' issue will this subpart be used.


Sec. 536.85  Claims payable.

    (a) General. A claim for personal injury, death, or damage or loss 
of property, real or personal, is payable under this subpart when--
    (1) Caused by the act or omission, negligent, wrongful, or 
otherwise involving fault of a member of the DA or the ARNG, or a 
civilian employee of the DA or the ARNG--
    (i) Incident to the use of a vehicle of the United States at any 
place.
    (ii) Incident to the use of any other property of the United States 
on a Government installation.
    (2) The claim may not be settled under any other claims statute and 
claims regulation available to the DA for the administrative settlement 
of claims.
    (3) The claim has been determined to be meritorious, and the 
approval or settlement authority has obtained a settlement agreement in 
an amount not in excess of $1,000 in full satisfaction of the claim 
prior to approval of the claim for payment.
    (b) Personal injury or death. A claim for personal injury or death 
is allowable only for the cost of reasonable medical, hospital, or 
burial expenses actually incurred and not otherwise furnished or paid 
by the United States.
    (c) Property loss or damage. A claim for damage or loss of property 
is allowable only for the cost of reasonable repairs or value at time 
of loss, whichever is less.


Sec. 536.86  Claims not payable.

    (a) A claim is not allowable under this subpart that--
    (1) Results wholly or partly from the negligent or wrongful act of 
the claimant or his or her agent or employee. The doctrine of 
comparative negligence is not applicable.
    (2) Is for medical, hospital, and burial expenses furnished or paid 
by the United States.
    (3) Is for any element of damage pertaining to personal injuries or 
death other than provided in Sec. 536.85(b). All other items of damage; 
for example, compensation for loss of earnings and services, diminution 
of earning capacity, anticipated medical expenses, physical 
disfigurement, and pain and suffering are not payable.
    (4) Is for loss of use of property or for the cost of a substitute 
property; for example, a rental.
    (5) Is legally recoverable by claimant under an indemnifying law or 
indemnity contract. If the claim is legally recoverable in part, that 
part recoverable by the claimant is not payable.
    (6) Is a subrogated claim.
    (b) Examples of claims not allowable under this subpart are as 
follows:
    (1) The claimant has collision insurance covering his or her 
automobile with a deductible amount of $100. While the claimant is 
sitting in the vehicle, which is properly parked, it is struck from the 
rear by an Army truck operated by a DA civilian who had misappropriated 
the Government vehicle. The claimant sustains personal injuries 
requiring hospitalization for 6 weeks during which actual medical and 
hospital expenses are incurred in the amount of $1,200. He or she has 
no medical or hospitalization insurance. The damage to the vehicle 
totals $300. The claimant's insurance carrier reimburses him or her 
$200 for the vehicle damage and becomes subrogated in that amount under 
the policy terms. The claimant files a claim in the amount of $1,500, 
alleging $300 for property damage to the automobile and $1,200 for 
medical and hospital expenses. The claim is allowable in the total 
amount of $1,000, consisting of $100, the insurance deductible for 
property damage, and $900 of the medical and hospital expenses. The 
amount claimed for medical and hospital expenses and for property 
damage merely constitutes separable interests in a single claim that 
may not be allowed in an amount in excess of $1,000 under this subpart. 
The claimant's insurer is not a proper party claimant, and no payment 
is allowable for the insurer's subrogated interest.
    (2) Claimant has medical and hospitalization insurance that 
entitles him or her to reimbursement of up to $500 for the reasonable 
cost of medical and hospital expenses incurred for personal injuries. 
While visiting at an Army installation the claimant is wounded by the 
negligent discharge of a Government issue caliber .45 pistol by a 
soldier who had stolen the weapon. The claimant is hospitalized at a 
civilian hospital and has incurred medical and hospital expenses of 
$750. The claimant may be paid $250, the amount allowable for 
reasonable medical and hospital expenses actually incurred after 
deduction of $500 legally recoverable by him or her under the insurance 
policy.


Sec. 536.87  When claim must be presented.

    A claim may be settled under this regulation only if it is 
presented in writing within 2 years after it accrues.


Sec. 536.88  Procedures.

    So far as not inconsistent with this part, the procedures for the 
investigation and processing of claims contained in subpart B will be 
followed.


Sec. 536.89  Settlement agreement.

    A claim may not be paid under this part unless the amount tendered 
is accepted by the claimant in full satisfaction. A settlement 
agreement is required before payment. (See Sec. 536.32.)


Sec. 536.90  Delegation of authority.

    (a) Settlement authority. The following are delegated authority to 
pay up to $1,000 in settlement of claims and to disapprove claims 
presented in any amount under this subpart:
    (1) TJAG.
    (2) TAJAG.
    (3) The Commander, USARCS, or his designees.
    (4) The SJA or chief of the command claims service of the following 
commands:
    (i) USAREUR.
    (ii) Eighth U.S. Army, Korea.
    (iii) WESTCOM.
    (iv) USARSO.
    (5) Area claims offices.
    (b) Approval authority. Claims processing offices with approval 
authority are delegated authority to approve and pay, in full or in 
part, claims presented for $1,000 or less and to compromise and pay, 
regardless of amount claimed, an agreed award of $1,000 or less.
    (c) Exercise of authority. Authority delegated by this paragraph 
will not be exercised unless the claims settlement or approval 
authority has been assigned an office code.


Sec. 536.91  Reconsideration.

    (a) An original approval or settlement authority may reconsider the 
quantum of a claim upon request of the claimant or someone acting in 
his behalf. In the absence of such a request, an approval or settlement 
authority may on his or her own initiative reconsider the quantum of a 
claim. Reconsideration may occur even in a claim that was previously 
disapproved in whole or in part (even though a settlement agreement has 
been executed) when it appears that his or her original action was 
incorrect in law or fact based on the evidence of record at the time of 
the action or subsequently received. If he or she determines that the 
original action was incorrect, he or she will modify the action and, if 
appropriate, make a supplemental payment. If the original action is 
determined correct, the claimant will be so notified. The basis for 
either action will be stated in a memorandum included in the file.
    (b) An approval or settlement authority may reconsider the 
applicability of this subpart to a claim upon request of the claimant 
or someone acting in his behalf, or on his or her own initiative. Such 
reconsideration may occur even though all parties had previously agreed 
per Sec. 536.84 when it appears that this agreement was incorrect in 
law or fact based on the evidence of record at the time of the 
agreement or subsequently received. If he or she determines the 
agreement to be incorrect, the claim will be reprocessed under the 
applicable subpart of this part. If he or she determines the agreement 
to have been correct, that is, that this subpart is applicable, he or 
she will so advise the claimant. This advice will include reference to 
any appeal or judicial remedies available under the subpart which the 
claimant alleges the claim should be processed under.
    (c) A successor or higher approval or settlement authority may also 
reconsider the original action on a claim under paragraph (a) or (b) of 
this section, but only on the basis of fraud, substantial new evidence, 
errors in calculation, or mistake (misinterpretation) of law.
    (d) A request for reconsideration should indicate fully the legal 
or factual basis asserted as grounds for relief.

Subpart F--Claims Arising From Activities of the Army National 
Guard


Sec. 536.92  Statutory authority.

    (a) The statutory authority for this subpart is contained in the 
Act of 13 September 1960 (74 Stat. 878, 32 U.S.C. 715), commonly 
referred to as the ``National Guard Claims Act'' as amended by Pub. L. 
90-486, 13 August 1968, (82 Stat. 756), Pub. L. 90-525, 26 September 
1968 (82 Stat. 877), Pub. L. 901-312, 8 July 1970 (84 Stat. 412), and 
Pub. L. 93-336, 8 July 1974, and the Act of 8 September 1961 (75 Stat. 
488, 10 U.S.C. 2736) as amended by Pub. L. 90-521, 26 September 1968 
(82 Stat. 874) and as amended by Pub. L. 98564, 20 October 1984.
    (b) For purposes of this subpart, the following terminology 
applies:
    (1) ARNG personnel. A member of the ARNG engaged in training or 
duty under 32 U.S.C. sec 316, 502, 503, 504, 505, or 709.
    (2) Claimant. An individual, partnership, association, corporation, 
country, State, commonwealth, territory, or a political subdivision 
thereof, or the District of Columbia presenting a claim and meeting the 
conditions set forth in Sec. 536.20. The term does not include the U.S. 
Government, any of its instrumentalities, except as prescribed by 
statute, or a State, commonwealth, territory, or the District of 
Columbia, which maintains the unit to which the ARNG personnel causing 
the injury or damage are assigned. This exclusion does not ordinarily 
apply to a unit of local government that does not control the ARNG 
organization involved. As a general rule, a claim by a unit of local 
government other than a State, commonwealth, or territory will be 
entertained unless the item claimed to be damaged or lost was procured 
or maintained by State, commonwealth, or territorial funds.
    (3) State. As used in this subpart the term ``state'' includes 
selfgoverning commonwealths and territories of the United States; for 
example, Puerto Rico and the Virgin Islands.


Sec. 536.93  Scope.

    (a) This subpart is applicable in all places and sets forth the 
procedures to be followed in the settlement and payment of claims for 
death, personal injury, or damage, loss, or destruction of property 
caused by--
    (1) Members or employees of the ARNG.
    (2) Noncombat activities of the ARNG when engaged in training or 
duty under 32 U.S.C. sec. 316, 502, 503, 504, 505, or 709, provided 
such claim is not for personal injury or death of a member of the Armed 
Forces or Coast Guard.
    (3) An employee whose injury or death is incident to service.
    (b) A claimant dissatisfied with an administrative settlement under 
this subpart as the result of activities of the NG of a State, 
Commonwealth, or Territory is not entitled to judicial relief in an 
action against the United States. Whether he or she has a legal cause 
of action or may file an administrative claim against such political 
entity depends upon controlling local law.
    (c) Claims arising out of the activities of the ARNG when 
performing duties at the call of the governor of a State maintaining 
the unit are not cognizable under this subpart or any other law, 
regulation, or appropriation available to the Army for the payment of 
claims. Such claims should be returned or referred to the authorities 
of the State, for whatever action they choose to take and claimants 
should be informed of the return or referral. Care should be taken to 
determine the status of the unit; members at the time the claims 
incident occurred, particularly in civil emergencies as units called by 
the governor, are sometimes ``federalized'' during the call-up. If the 
unit was federalized at the time the claims incident occurred, the 
claim will be cognizable under subparts C, D and F or other subparts 
pertaining to the Active Army.


Sec. 536.94  Claims payable.

    (a) Tort claims. All claims for personal injuries, death, or damage 
to or loss of real or personal property, arising out of incidents 
occurring on or after 29 December 1981 based on negligent or wrongful 
acts or omissions, of ARNG personnel activity within the scope of 
employment, with the United States while engaged in training or duty 
under 32 U.S.C. Sections 316, 502, 503, 504, 505, or 709 will be 
processed under the FTCA (subpart D). Such claims arising before 29 
December 1981 will, except as modified herein, be processed and settled 
in accordance with the provisions of subpart C.
    (b) Noncombat activities. A claim incident to the noncombat 
activities of the ARNG while engaged in duty or training under 32 
U.S.C. Sections 316, 502, 503, 504, 505, or 709 may be settled under 
this subpart.
    (c) Subrogated claims. Subrogated claims will be processed as 
prescribed in Sec. 536.20(b).
    (d) Advance payments. Advance payments in partial settlement of 
meritorious claims to alleviate immediate hardship are authorized as 
provided in subpart B, small claims.


Sec. 536.95  Claims not payable.

    The type of claims listed in Sec. 536.51, as not payable are also 
not payable under this subpart.


Sec. 536.96  Claims under other subparts.

    (a) Claims within the scope of this subpart that are also 
cognizable under subparts, D, H, J or K will be considered initially 
under the latter.
    (b) This subpart does not apply to any claim that may be settled 
under an exclusive or specific authorization listed in DA Pam 27-162, 
chapter 8 (see Sec. 536.76).


Sec. 536.97  Notification of incident.

    Except where claims are regularly paid from State sources; for 
example, insurance, court of claims, and legislative committee, the 
appropriate adjutant general will ensure that each incident of the type 
enumerated in Sec. 536.15 is reported immediately by the most 
expeditious means to the area claims office in whose geographic area 
the incident occurs or to a claims processing office designated by the 
area claims office. The report will contain the following information:
    (a) Date of incident.
    (b) Place of incident.
    (c) Nature of incident.
    (d) Names and organizations of ARNG personnel involved.
    (e) Names of potential claimants.
    (f) A brief description of any damage, loss, or destruction of 
private property and any injuries or death of potential claimants.


Sec. 536.98  Investigation.

    (a) When required. An investigation is required as indicated in 
Sec. 536.15 except when claims are regularly paid by local sources.
    (b) By whom made. Area offices, or claims processing offices 
designated by them, are responsible for the investigation of claims 
occurring within their assigned geographic areas. The state adjutant 
general will designate an official or office as point of contact for 
Army claims personnel and will furnish necessary personnel to conduct 
or assist in investigations subject to the availability of funds and 
personnel. (See Sec. 536.7(h)). The use of ARNG personnel when 
available, is authorized. Attention is directed to Sec. 536.19(b) that 
requires the use of information from other investigations made 
previously, particularly military and civilian police reports, reports 
of survey, line of duty investigations, and collateral air crash 
investigations.
    (c) Conduct of investigation. The investigation will be conducted 
in accordance with subpart B, except that a sample scope of employment 
format will be added, together with a copy of the orders authorizing 
the performance of duty by the tortfeasor. Also, where a State has 
waived immunity or has some other means for paying claims, as through 
legislative committee or insurance, the claims officer's report will 
contain a statement as to the nature of the remedy against the State, 
the extent of insurance coverage, and the status of any claim made. If 
there is no remedy against the State and no insurance coverage, the 
claims officer's report will so indicate. If a regular procedure has 
been established for the processing of claims for a particular 
jurisdiction as by agreement between local authorities and an 
appropriate Army headquarters or USARCS, this requirement is waived. 
Finally, injury should be made as to any existing or anticipated claim 
or lawsuit against or by the driver of the ARNG vehicle or insurer. If 
a claim or lawsuit has been filed, further inquiry should be made as to 
probable outcome. This could be accomplished by discussion with the 
driver and an examination of the driver's insurance policy, which, if 
obtained, should be included in the file.


Sec. 536.99  Claims in which there is a State source of recovery.

    Where there is a remedy against the State, as a result of either 
waiver of sovereign immunity or liability insurance coverage, the 
following procedures apply:
    (a) Where the State is insured, direct contact with State or ARNG 
officials rather than the insurer is desirable. Regular procedures will 
be established and followed wherever possible. Such procedures should 
be agreed on by both local authorities and the appropriate claims 
authorities subject to concurrence by Commander, USARCS. Such 
procedures will be designed to ensure that local authorities and U.S. 
authorities do not issue conflicting instructions for processing 
claims, and whenever possible, and in accordance with governing local 
and Federal law, a mutual arrangement for disposition of such claims as 
in paragraph (c) of this section is worked out. Amounts recovered or 
recoverable by claimant from any insurer (other than claimant's insurer 
who has obtained no subrogated interest against the United States) will 
be deducted from the amount otherwise payable.
    (b) If there is a remedy against the State or its insurer, the 
claimant may be advised of that remedy. If the payment by the State or 
its insurer does not fully compensate claimant, an additional payment 
may be made. If liability is clear and claimant settles with the State 
or its insurer for less than the maximum amount recoverable, the 
difference between the maximum amount recoverable and the settlement 
normally will be deducted from the payment by the United States.
    (c) If the State or its insurer desires to pay less than their 
maximum jurisdiction or policy limit on a basis of 50 percent or more 
of the actual value of the entire claim, any payment made by the United 
States must be made directly to the claimant. This can be accomplished 
by either having the United States pay the entire claim and have the 
State or its insurer reimburse its portion to the United States, or by 
having each party pay its agreed share directly to the claimant. If the 
State or its insurer desires to pay less than 50 percent of the actual 
value of the claim, the procedure set forth in paragraph (d) of this 
section will be followed.
    (d) If there is a remedy against the State and the State refuses to 
make payment, or there is insurance coverage and the claimant has filed 
an administrative claim against the United States, forward file with 
Tort Claim memorandum to the Commander, USARCS; include information on 
the status of any judicial or administrative action the claimant has 
taken against the State or its insurer. The Commander, USARCS will 
determine whether the claimant will be required to exhaust his or her 
remedy against the State or its insurer, or whether the claim against 
the United States can be settled without such requirement. If the 
Commander, USARCS, determines to follow the latter course of action, he 
or she will also determine whether an assignment of the claim against 
the State or its insurer will be obtained and whether recovery action 
will be taken. The State or its insurer will be given appropriate 
notification in accordance with State law necessary to obtain 
contribution of indemnification.


Sec. 536.100  Claims against the ARNG tortfeasor individually.

    The procedures set forth in Sec. 536.29 are applicable. With 
respect to claims arising before 29 December 1981, an ARNG driver 
acting pursuant to the authorities cited in Sec. 536.94(a) is not 
protected by the provisions of the Drivers Act (28 U.S.C. 2670(b)); the 
driver may be sued individually in State court. When this situation 
occurs, it should be monitored closely by ARNG authorities. If possible 
an early determination will be made as to whether any private insurance 
of the ARNG tortfeasor is applicable. Where such insurance is 
applicable and the claim against the United States has doubtful 
validity, final actions will be withheld pending resolution of the 
demand against the NG tortfeasor. If, in the opinion of the claims 
approving or settlement authority, such insurance is applicable and the 
claim against the United States is payable in full or in a reduced 
amount, settlement efforts will be made either together with the 
insurer or singly by the United States as in Sec. 536.99(b). Any 
settlement will not include amounts recovered or recoverable as in 
Sec. 536.28. If the insurance is not applicable, settlement or 
disapproval action will proceed without further delay.


Sec. 536.101  When claims must be presented.

    A claim may be settled under this subpart only if presented in 
writing within 2 years after it accrues, except that if it accrues in 
time of war or armed conflict, or if war or armed conflict intervenes 
within 2 years after it accrues, and if good cause is shown, the claim 
may be presented not later than 2 years after war or armed conflict is 
terminated. As used in this paragraph, war or armed conflict is one in 
which any Armed Force of the United States is engaged. The dates of 
commencement and termination of an armed conflict must be established 
by concurrent resolution of Congress or by determination of the 
President.


Sec. 536.102  Where claims must be presented.

    A claim must be presented to the appropriate Federal agency. 
Presentment of a written claim to any full time officer or employee of 
the NG will be considered a receipt. However, the statute of 
limitations is tolled if a claim is filed with a State agency, the 
claim purports to be under the NGCA and it is forwarded to the Army 
within 6 months, or the claimant makes inquiry of the Army concerning 
the claim within 6 months. If a claim is received by a DA official who 
is not a claims approval or settlement authority under this regulation, 
the claim will be transmitted without delay to the nearest approval or 
settlement authority.


Sec. 536.103  Procedures.

    (a) The form of a claim under this Act will be as described in 
Sec. 536.20(d) and (e).
    (b) So far as they are not inconsistent with this subpart, the 
procedures set forth in subpart B, settlement procedures, will be 
followed in processing a claim under this subpart.
    (c) The following provisions of subpart C are applicable to claims 
under this subpart and are hereby incorporated by the following 
references:
    (1) Applicable law (Sec. 536.55).
    (2) Determination of quantum (Sec. 536.56 through Sec. 536.59).
    (3) Delegation of authority (Sec. 536.61).
    (4) Claims over $100,000 (Sec. 536.62).
    (5) Settlement procedures (Sec. 537.63).
    (6) Action on appeal (Sec. 536.64).
    (7) Attorney fees (Sec. 536.66).


Sec. 536.104  Settlement agreement.

    Procedures concerning settlement agreements will be in accordance 
with Sec. 536.32, except that the agreement will be modified to include 
a State and its NG in most cases. A copy of the agreement will be 
furnished to State authorities and the individual tortfeasor.

Subpart G--Claims Under Status of Forces and Other International 
Agreements

General


Sec. 536.105  Statutory authority.

    The authority for this subpart is contained in the following:
    (a) 10 U.S.C. 2734a as amended, concerning claims arising overseas 
under international agreements.
    (b) 10 U.S.C. 2734b, as amended, concerning claims arising under 
international agreements in this country.
    (c) 10 U.S.C. 2735.
    (d) 10 U.S.C. 2736, as amended, providing for advance payment of 
certain claims.

Claims Arising in the United States


Sec. 536.106  Scope.

    (a) This subpart provides procedures and defines responsibilities 
for the investigation, processing, and settlement of claims arising out 
of acts or omissions of members of a foreign military force or civilian 
component present in the United States, or a territory, commonwealth, 
or possession thereof under the provisions of reciprocal international 
agreements, which contain claims settlement provisions applicable to 
claims arising in the United States, such as Article VIII of the 
Agreement Regarding the Status of Forces of Parties to the North 
Atlantic Treaty (DA Pam 27-162, appendix L).
    (b) The Sending States under current international reciprocal 
agreements include Belgium, Canada, Denmark, Federal Republic of 
Germany, France, Greece, Italy, Luxembourg, Netherlands, Norway, 
Portugal, Turkey, the United Kingdom, Spain, and SHAPE.
    (c) Reference should be made to DA Pam 27-162, appendix L for 
delineation of what constitutes a foreign military force, a foreign 
civilian component, and a foreign dependent.
    (d) Whenever claims arise involving foreign soldiers training or 
otherwise stationed in the United States pursuant to bilateral 
agreements or other arrangements, such as foreign military sales 
agreements, which contain specific claims provisions, the claims office 
receiving the claim will report such claims to the Commander, USARCS, 
for guidance as to the resolution and, if necessary, payment of such 
claims.
    (e) The United States, as a Receiving State, is responsible under 
some Status of Forces Agreements, for the investigation of incidents, 
and for the processing of claims, arising from acts or omissions of 
members or civilian employees of an armed force of a sending state 
present in the United States. The United States may be liable for 
partial payment of such claims if they arise incident to the official 
duties of the sending state's soldier or employee. Article VIII of the 
NATO SOFA is the most commonly invoked agreement of this sort. It 
applies to torts committed within the North Atlantic Treaty Area, which 
includes the continental United States and island possessions north of 
the Tropic of Cancer (i.e. excludes Puerto Rico, Hawaii and American 
Samoa). It also applies to claims arising out of acts by military or 
civilian personnel, regardless of nationality, who are assigned, 
attached to, or employed by an international headquarters established 
under the provisions of the Protocol on the Status of International 
Military Headquarters Set Up Pursuant to the North Atlantic Treaty 
dated August 28, 1952 (e.g. Supreme Allied Command, Atlantic).
    (f) Single service responsibility for the processing and settlement 
of claims cognizable under this section is assigned to DA by DODD 
5515.8. The Secretary of the Army hereby designates the USARCS as the 
Receiving State Office for claims cognizable under this section with 
authority to settle such claims in accordance with 10 U.S.C. 2734b. 
(See DA Pam 27-162, appendix L.)
    (g) As Sending State forces are considered assimilated into the 
armed forces of the United States for purposes of the SOFAs, their 
members are also barred from being compensated by the United States 
when they are injured incident to their service, Daberkow v. United 
States, 581 F.2d 785 (9th Cir. 1978). (See also DA Pam 27-162, appendix 
L for an example of a government-to-government claim bar in these 
circumstances.)


Sec. 536.107  Notification of incidents.

    In order for the United States to properly discharge its claims 
responsibilities under international agreements, it is essential that 
the responsible military authorities be notified of all incidents, 
including off-duty incidents, in which members of a foreign military 
force or civilian component are involved. Any installation that learns 
of an incident involving a member of a foreign military force or 
civilian component which results in personal injury, death, or property 
damage will notify immediately by the most expeditious means the 
installation to which such person is assigned or attached. An 
information copy of such notification will be furnished to the 
Commander, USARCS. In the event the member is not assigned or attached 
to any installation within the United States, the Commander, USARCS 
will be notified. The notification (exempt report, AR 335-15, paragraph 
720) will contain so much of the following information as is readily 
available:
    (a) Date of incident.
    (b) Place of incident.
    (c) Nature of incident.
    (d) Names and organization of foreign personnel involved.
    (e) Name of potential claimants.
    (f) A brief description of any damage, loss, or destruction of 
property, and personal injuries of death.


Sec. 536.108  Liaison with Sending State representatives.

    The Commander, USARCS is responsible for maintaining liaison with 
designated representatives of Sending States as to claims matters under 
this section, and establishing internal operating procedures.


Sec. 536.109  Investigations.

    (a) Immediate investigation of each incident involving a member of 
a foreign force or civilian component is required in order to ensure 
that all necessary information, including necessary statements and 
depositions, is obtained before the foreign personnel involved, either 
principals or witnesses, depart the United States.
    (b) Responsibility for the investigation of an incident rests upon 
the commander of the installation to which the member of a foreign 
force or civilian component is assigned or attached, or if not assigned 
or attached within the United States upon the Commander, USARCS. He or 
she is authorized to designate an appropriate agency of the Armed 
Services for this purpose.
    (c) The installation responsible for the investigation will be free 
to request appropriate assistance from any other installation within 
the DOD to the end that a reliable and complete investigation of the 
incident will be accomplished most economically. Such requested 
assistance may be for an investigation of the entire incident, or it 
may cover only part of the investigation; for example, it may be a 
statement from one witness. Normally such requests will be made of an 
installation having claims responsibility under the appropriate 
departmental regulation and nearest the place of the occurrence. In a 
case involving an aircraft, such request will normally be made of an 
installation that also has the capability of investigating air 
accidents giving due regard to the type of aircraft.
    (d) The investigation will be made in accordance with the 
regulations of the department of which the installation is a part. 
Also, information will be obtained as to whether the claimant is a 
member of a foreign force or civilian component, or dependent of such a 
member or employee. If so, the following will be listed:
    (1) Any benefits the claimant may be entitled to from his or her 
own government whether he or she has applied, or intends to apply, for 
such benefits.
    (2) The value of any benefits to which the claimant may be 
entitled, which he or she may have received, or both.
    (e) The investigating officer will arrange with the commanding 
officer of the foreign unit to which a member of a foreign force or 
civilian component is assigned, or the immediate superior of such 
member, to obtain from such member the pertinent information and 
required reports. If the member is assigned or attached to a United 
States organization or installation, information and reports will be 
obtained in accordance with the procedure applicable to United States 
personnel.
    (f) Notwithstanding the provisions of department regulations, a 
copy of the report of investigation will be forwarded to the Commander, 
USARCS immediately upon completion.


Sec. 536.110  Claims procedures.

    (a) Place and timing of filing. A claim should be filed with the 
commanding officer of the United States military installation nearest 
the place where the incident occurred, but may be filed at any other 
such installation, within two years of its accrual. Immediately upon 
receipt, a copy will be forwarded to Commander, USARCS. The claim and 
supporting documents will conform to the regulations of the department 
of which the place of filing is a part. Claims filed with a sending 
State official within 2 years of their accrual will be accepted as 
timely if received by a U.S. claims office (Sec. 536.5) before the 
passage of a total of 2\1/2\ years from the date of accrual.
    (b) Processing of claims. A claim normally will be processed by the 
installation that first investigated the incident from which it arose 
in accordance with the pertinent departmental regulations. The 
commanding officer of an installation with which a claim is filed may 
by direct communication ascertain whether the incident from which it 
arose was investigated by another installation, and, if so, may 
transmit the claim for further processing to that installation. Upon 
completion of investigation, the claim file will be forwarded to the 
Commander, USARCS.
    (c) Official duty claims. Pursuant to 10 U.S.C. 2734b, claims 
generated by the sending State personnel, while engaged in the 
performance of official duties, are settled by a person designated in 
Sec. 536.111 in the manner provided for claims generated by personnel 
of the armed forces of the United States, that is, under the MCA 
(subpart C), the FTCA (subpart D) or the Army Maritime Claims 
Settlement Act (subpart H). The Commander, USARCS, will obtain scope of 
employment determinations from sending State officials under the 
conditions set forth in Article VIII, NATO SOFA. Payments made are 
subject to pro rata reimbursement by the sending State (paragraph 5, 
Article VIII, NATO SOFA (DA Pam 27-162, appendix L)).
    (d) Exgratia claims. Claims arising from off-duty activities of 
sending State personnel are, after investigation, processing, and 
evaluation, referred by the Commander, USARCS to sending State 
officials for a determination as to whether an exgratia payment will be 
offered (paragraph 6, Article VIII, NATO SOFA (DA Pam 27-162, appendix 
L)).


Sec. 536.111  Settlement authority.

    The Commander, USARCS, or designees, are delegated sole authority 
to settle claims under this subpart.


Sec. 536.112  Advance payments.

    Advance payments in partial settlement of meritorious claims to 
alleviate immediate hardship are authorized as provided in subpart B, 
advanced payments.


Sec. 536.113  Litigation.

    Officials designated by departmental regulations as responsible for 
reporting the initiation of legal proceedings involving their 
department will take the following action upon the commencement of 
legal proceedings;
    (a) Report the initiation of the proceeding by electrical message 
to the Litigation Division, Office of TJAG, submitting the information 
required by departmental regulation for reports of commencement of 
proceedings, with a copy to Commander, USARCS.
    (b) Notify the proper United States Attorney and furnish him or her 
with copies of all process and pleadings.
    (c) Forward by fastest means available to the Litigation Division, 
Office of TJAG, three copies of all process, pleadings, and related 
papers.
    (d) Unless otherwise directed by TJAG, prepare an investigative 
(litigation) report in the manner prescribed by departmental 
regulations and submit three copies to Litigation Division, Office of 
the TJAG, AR 27-40; AFR 110-3; Navy JAG Manual, chapter 13).


Sec. 536.114  Assistance to foreign forces.

    (a) In order that claims cognizable under this section will be 
treated as nearly as possible as if they arose from activities of 
United States personnel, all possible assistance will be provided to 
commanding officers of foreign units and to members thereof.
    (b) The commanding officer of an installation at which a foreign 
unit is stationed will furnish to the commanding officer of the foreign 
unit copies of regulations and forms relating to claims, and, when 
applicable, will provide instructions for the members of the unit with 
respect to the pertinent State laws and reporting of accidents.
    (c) The commanding officer of an installation to whom a request for 
information or assistance is made by foreign personnel or to whom a 
report of an incident is made will provide, to the extent permitted by 
security regulations, the requested information or assistance.
    (d) When circumstances permit, assistance in meeting local 
requirements will be rendered to the foreign personnel involved at the 
scene of an incident by the commanding officer of the installation to 
which the incident was reported. The commanding officer of an 
installation at which a foreign unit is stationed should request that 
local law enforcement agencies follow procedures applicable to 
incidents involving military personnel of the United States in any 
incident involving foreign personnel.

Claims Against the United States Arising Overseas


Sec. 536.115  Scope.

    (a) This section provides guidance on claims against the United 
States which are based on acts of our soldiers or employees within the 
scope of their employment and which arise in countries for which there 
is an international agreement requiring a foreign government (i.e. 
receiving state) to adjudicate and pay the claims subject to partial 
reimbursement by the United States.
    (b) Claims by foreign inhabitants based on acts of members of our 
forces which are outside the scope of their official duties may be 
payable under the Foreign Claims Act (subpart J) but are usually not 
adjudicated by receiving states under most international agreements. 
These non-scope claims will be processed under the provisions of 
subpart J.


Sec. 536.116  Claims procedures.

    (a) Claims provisions in Status of Forces Agreements providing for 
receiving state adjudication have been held to be the exclusive remedy 
for claims against the United States, preempting any remedy that would 
otherwise be available under other United States claims statutes, such 
as the Foreign Claims Act or the Public Vessels Act (Aaskov. v. 
Aldridge, 695 F. Supp. 595 (D.D.C. 1988)).
    (b) SOFA provisions for receiving state adjudication of claims 
against the United States usually refer to claims by ``third parties'' 
against members of the force or civilian component. This clearly 
includes claims by tourists or business travelers from the United 
States as well as inhabitants of foreign countries. Depending on how 
the receiving state interprets the class of proper claimants under the 
SOFA claims provisions, the receiving state may also adjudicate claims 
by dependents of our forces. Chiefs of command claims services 
responsible for claims arising in countries with SOFA or other treaty 
provisions requiring adjudication of claims against the United States 
by a receiving state will ensure their tort claims personnel are aware 
of the receiving state's policy on the issue of who are proper 
claimants under the treaty provisions.
    (c) Where SOFA provisions provide for receiving state adjudication 
of claims, the time limit for filing such claims is often substantially 
less than the two years that would otherwise be allowed under the FCA 
or MCA. For example, the Defense Cost Office in Germany requires that a 
claim be filed within 90 days of the date it accrues. Command claims 
services will ensure that all claims personnel in their area of 
responsibility:
    (1) Receive annual training on the receiving state's claims 
procedures, to include the applicable time limits, procedures and 
location of the appropriate receiving state claims office or agency;
    (2) Screen all new claims and inquiries about claims to identify 
claimants who must file with the receiving state;
    (3) Ensure that all such claimants are informed of this requirement 
and the applicable time limit.
    (d) All foreign inhabitants who have claims against the United 
States which are the responsibility of the receiving state (i.e. based 
on acts within scope of duties of employees or members of U.S. forces 
and not otherwise excluded by the treaty) will be required to file the 
claim with the appropriate receiving state office. Those U.S. 
inhabitants whose claims would otherwise be cognizable under the 
Military Claims Act (subpart C) and who are deemed by the receiving 
state to be proper claimants under the SOFA claims provisions must also 
file with the receiving state. However, if they fail to do so, their 
claim may be considered under subpart C, for good cause, with the 
permission of the Commander, USARCS. Claims for which a foreign country 
is responsible under a SOFA or similar agreement will not be paid under 
subpart J or subpart C without prior approval of the Commander, USARCS 
or the senior JA in country (Secs. 536.52(a)(3) and 536.152(c)).
    (e) A claim filed and adjudicated by a receiving state under a SOFA 
or other international agreement claims provision may be considered 
under other claims provisions of this regulation only if the receiving 
state denied the claim on the basis that it was not cognizable under 
the treaty or agreement provisions. Where a claimant has filed a claim 
with a receiving state and received payment, such payment will be the 
claimant's final and exclusive remedy against the United States. If the 
claim is denied on the merits by the receiving state, that action will 
also be the claimant's final and conclusive remedy against the United 
States.


Sec. 536.117  Responsibilities.

    (a) The Commander, USARCS, is responsible for--
    (1) Providing policy guidance to command claims services concerning 
SOFA or other treaty reimbursement programs implementing 10 U.S.C. 
2734a.
    (2) Monitoring the reimbursement system to ensure that programs are 
in place for the proper verification and certification of reimbursement 
claims.
    (3) Monitoring funds expended for reimbursements to foreign 
governments.
    (b) Command claims services within whose jurisdiction SOFA or other 
treaty provisions providing for a claims reimbursement system are in 
force and where DA has been assigned single-service responsibility for 
the foreign country seeking reimbursement (see Sec. 536.159) are 
responsible for--
    (1) Establishing a program for the verification, certification, and 
reimbursement of claims. A copy of the procedures implementing the 
program will be provided to the Commander, USARCS.
    (2) Providing the Commander, USARCS, with budget estimates or 
reimbursements in addition to the reports required by Sec. 536.242.
    (3) Providing the Commander, USARCS, with statistical information 
each month in which payments are made as to the number of individual 
claims reimbursed, the total amount paid by the foreign government, and 
the total amount reimbursed by the United States.
    (4) Providing the Commander, USARCS, with a quarterly report 
showing total reimbursements paid during the quarter for maneuver 
damage and tort claims (broken out by major categories of damage as 
determined by the Commander, USARCS) and an update on major issues or 
activities that could impact on the operation or funding of the 
reimbursement system.


Sec. 536.118  Reimbursements for nonappropriated funds.

    (a) Reimbursements for claims generated by the operations of 
nonappropriated fund activities will be paid using nonappropriated 
funds (NAF) (see subpart L).
    (b) Command claims services will provide the Commander, USARCS, 
with statistical information each month, if appropriate, as to the 
number of NAF claims processed and the amounts to be reimbursed by 
NAFs.


Sec. 536.119  Reimbursement for Coast Guard activities.

    Upon request of the Secretary of Transportation, or designee, any 
payments made relating to Coast Guard-generated claims covered by 10 
U.S.C. 2734a(c) may be reimbursed or paid to the foreign government 
concerned by a command claims service out of its reimbursement 
expenditure allowance, subject to reimbursement from the Department of 
Transportation (10 U.S.C. 1734a(d)).

Subpart H--Maritime Claims

General


Sec. 536.120  Statutory authority.

    Adminsitrative settlement or compromise of admiralty and maritime 
claims in favor of and against the United States by the Secretary of 
the Army, or designee, is authorized by the Army Maritime Claims 
Settlement Act (10 U.S.C. 4801-04, 4806, as amended).


Sec. 536.121  Related statutes.

    The Army Maritime Claims Settlement Act is supplemented by the 
following statutes under which suits in admiralty may be brought: the 
Suits in Admiralty Act (46 U.S.C. 741-752); the Public Vessels Act (46 
U.S.C. 781-790); an act Extending the Admiralty and Maritime 
Jurisdiction (46 U.S.C. 740). Similar maritime claims settlement 
authority is exercised by the Department of the Navy under 10 U.S.C. 
7365 and 7621-23 and by the Department of the Air Force under 10 U.S.C. 
9801-04 and 9806.

Claims Against the United States


Sec. 536.122  Scope.

    Title 10, United States Code, section 4802, provides for the 
settlement or compromise of claims for--
    (a) Damage caused by a vessel of, or in the service of, the DA or 
by other property under the jurisdiction of the DA;
    (b) Compensation for towage and salvage service, including contract 
salvage, rendered to a vessel of, or in the service of, the DA or to 
other property under the jurisdiction of the DA; or
    (c) Damage caused by a maritime tort committed by any agent or 
employee of the DA or by property under the jurisdiction of the DA.


Sec. 536.123  Claims exceeding $500,000.

    Claims against the United States settled or compromised in a net 
amount exceeding $500,000 are not payable hereunder, but will be 
investigated and processed under this section and, if approved by the 
Secretary of the Army, will be certified to Congress.


Sec. 536.124  Claims not payable.

    A claim is not allowable under this section that--
    (a) Is for damage to, or loss or destruction of property, or for 
personal injury or death, resulting directly or indirectly from action 
by the enemy, or by U.S. Armed Forces engaged in armed conflict, or in 
immediate preparation for impending armed conflict.
    (b) Is for the personal injury or death of a member of the Armed 
Forces of the United States or a civilian employee incurred incident to 
his or her service.
    (c) Is for the personal injury or death of a Government employee 
for whom benefits are provided by the FECA (5 U.S.C. 8101-8150).
    (d) Is for the personal injury or death of an employee, including 
nonappropriated fund employees, for whom benefits are provided by the 
Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 901).
    (e) Has been made the subject of a suit by or against the United 
States, except as provided in Sec. 536.127(b).
    (f) Arises in a foreign country and was considered by the 
authorities of a foreign country and final action taken thereon under 
Article VIII of the NATO SOFA, Article XVIII of the Japanese 
Administrative Agreement, or other similar treaty or agreement, if 
reasonable disposition was made of the claim.
    (g) Is based upon the exercise or performance or the failure to 
exercise or to perform a discretionary function or duty whether or not 
the discretion is abused, provided that the United States Court of 
Appeals for the jurisdiction in which the claim arises has not 
specifically refused to incorporate the discretionary function 
exception into the Suits in Admiralty Act (e.g. United States Court of 
Appeals for the Fourth Circuit).
    (h) Is presented by a citizen or government agency, or a 
corporation controlled by a citizen or government agency, of a country 
at war or engaged in armed conflict with the United States, or any 
country allied with such enemy country unless the appropriate 
settlement authority determines that the claimant is, and, at the time 
of the incident, was friendly to the United States.


Sec. 536.125  Claims under other laws and regulations.

    (a) Claims of DA personnel and civilian employees of DOD including 
military and civilian officers and crews of Army vessels, for damage to 
or loss of personal property occurring incident to their service will 
be processed under the provisions of subpart K.
    (b) Claims that are within the scope of this section and also 
within the scope of subpart J may be processed under subpart J when 
specific authority to do so has been obtained from the Commander, 
USARCS. The request for such authority should be accompanied by a copy 
of the report of the incident by the Marine Casualty Investigating 
Officer, or other claims investigator.


Sec. 536.126  Subrogation.

    (a) An insurer will be recognized as a claimant under this section 
to the extent that it has become subrogated by payment to, or on behalf 
of, its assured, pursuant to a contract of insurance in force at the 
time of the incident from which the claim arose. An insurer and its 
assured may file a claim either jointly or separately. Joint claims 
will be asserted in the names of, and must be signed by, or on behalf 
of, all parties; payment then will be made jointly. If separate claims 
are filed, payment to each party will be limited to the extent of such 
party's undisputed interest.
    (b) For the purpose of determining authority to settle or 
compromise a claim, the payable interests of an insurer (or assurers) 
and the assured represent merely separable interests, which interests 
in the aggregate must not exceed the amount authorized for 
administrative settlement or compromise.
    (c) The policies set forth in paragraphs (a) and (b) of this 
section with respect to subrogation arising from insurance contracts 
are applicable to all other types of subrogation.


Sec. 536.127  Limitation of settlement.

    (a) The period of effecting an administrative settlement under the 
Army Maritime Claims Settlement Act is subject to the same limitation 
as that for beginning an action under the Suits in Admiralty Act; that 
is, a 2-year period from the date the cause of the action accrued. The 
claimant must have agreed to accept the settlement, and it must be 
approved for payment by the Secretary of the Army, or other approval 
authority, prior to the end of such period. The presentation of a 
claim, or its consideration by the DA, neither waives nor extends the 
2-year limitation period and the claimant should be so informed in 
accordance with paragraph (c) of this section.
    (b) In the event that an action has been filed in a U.S. district 
court before the end of the 2-year statutory period, an administrative 
settlement may be negotiated by the Commander, USARCS with the 
claimant, even though the 2-year period has elapsed since the cause of 
action accrued, provided the claimant obtains the written consent of 
the appropriate office of the Department of Justice charged with the 
defense of the complaint. Payment may be made upon dismissal of the 
complaint.
    (c) When a claim under this section, notice of damage, invitation 
to a damage survey, or other written document indicating an intention 
to hold the United States liable is received, the receiving 
installation, office, or person, will immediately forward such document 
to the Commander, USARCS. The USARCS claims office receiving notice of 
the claim will promptly advise the claimant or potential claimant in 
writing of the comprehensive application of the time limit.
    (d) Where a claim under this section for $25,000 or less is 
presented to a Corps of Engineers or other designated area claims 
office (see Secs. 536.128(c) and 536.132(c) and thus may be appropriate 
for action by that office pursuant to the delegation of authority set 
forth in Sec. 536.128, the receiving Corps of Engineer office will 
promptly advise the claimant in writing of the comprehensive 
application of the time limit on the Army's authority to settle the 
claim as well as the fact that the claim does not toll the statute of 
limitations for filing suit. (See Sec. 536.12(b)).
    (e) Claimants are not required to file an administrative claim six 
months prior to filing suit except for those claims where maritime 
jurisdiction is based on the Act Extending the Admiralty and Maritime 
Jurisdiction (46 U.S.C. 740) (i.e. damage or injury on land resulting 
from an act on navigable waters). However, even in those cases, the 
filing of an administrative claim does not toll the two year statutory 
limit for filing suit nor extend the authority of the Army to settle a 
claim. Any such claim filed within six months of the running of the 
statute of limitations should be brought to the attention of USARCS 
immediately and every reasonable effort should be made to complete 
final agency action before the running of the two year limit.
    (f) Limitation of Liability. Under the provisions of the Limitation 
of Shipowners' Liability Act, 46 U.S.C. 181-188, the United States may 
be able, in cases alleging injury or loss due to negligent operation of 
a vessel, to limit our liability to the value of the vessel after the 
accident. To take advantage of this law, the United States must file an 
action in federal district court within six months of receiving written 
notice of a claim. Therefore, USARCS must be notified within 10 
workdays of the receipt of any maritime claim arising in the United 
States or on the high seas out of the operation of an Army vessel, to 
include pleasure craft owned by the United States. The Claims Service 
will coordinate with Litigation Division, OTJAG or the Chief Counsel, 
COE and the Department of Justice on whether a limitation of liability 
action will be filed.


Sec. 536.128  Approval authority.

    (a) The Secretary of the Army, the Assistant Secretary of the Army 
(Financial Management) as designee of the Secretary or the designee of 
the Secretary may approve any settlement or compromise of a claim under 
this subpart subject only to the statutory limits (presently $500,000).
    (b) TJAG, TAJAG and the Commander, USARCS or his designee within 
USARCS are delegated authority to settle (i.e. deny or approve payment 
in full or in part) any claim under this subpart regardless of the 
amount claimed, provided that any amount awarded does not exceed 
$100,000 and that the claimant signs an appropriate settlement 
agreement.
    (c) Chiefs of command claims services, heads of Corps of Engineers 
area claims offices and heads of other area claims offices designated 
by the Commander, USARCS, are delegated authority to deny claims under 
this subpart presented in an amount not exceeding $25,000. They may 
also pay in full or compromise any claim where the amount to be paid 
does not exceed $25,000, provided the claimant is willing to accept the 
payment and executes an appropriate settlement agreement.
    (d) Only the authorities designated in paragraph a, above may deny 
or make a final offer on a claim demanding more than $25,000. If a 
claim cannot be settled within the authority of the head of an area 
claims office or the chief of a command claims service responsible for 
investigating a claim, it will be forwarded to USARCS through 
appropriate channels with a claims memorandum of opinion recommending 
disposition.
    (e) Meritorious claims arising from civil works activities of the 
Corps of Engineers will be paid from Corps of Engineers funds.

Claims In Favor of the United States


Sec. 536.129  Scope.

    (a) Title 10, United States Code, Section 4803, provides for agency 
settlement or compromise of claims for damage to--
    (1) DA accountable properties of a kind that are within the 
admiralty jurisdiction of a district court of the United States.
    (2) Claims for damage caused by a vessel or floating object to 
property under the jurisdiction of the DA or property for which the DA 
has assumed an obligation to respond in damages, where the net amount 
payable to the United States does not exceed $500,000.
    (b) Title 10, United States Code, Section 4804, provides for the 
settlement of compromise of claims in any amount for salvage 
services(including contract salvage and towage) performed by the DA. 
Claims for salvage services are based upon labor costs, per diem rates 
for the use of salvage vessels and other equipment, and upon repair or 
replacement costs of materials and equipment damaged or lost during the 
salvage operation. The sum claimed is intended to compensate the United 
States for operational costs only, reserving, however, the right of the 
Government to assert a claim on a salvage bonus basis in accordance 
with commercial practice, in appropriate cases.
    (c) The United States has three years from the date a maritime 
claim accrues under this section to file suit against the responsible 
parties. The Army's authority to settle or compromise a suit under this 
section terminates when the statute of limitations has run. Efforts to 
compromise a claim under this section should not extend more than two 
years past the date the claims accrues unless it is clear that an 
administrative settlement is likely. As a general rule, affirmative 
claims which are likely to be resolved through litigation should be 
referred to the Department of Justice within two years of the date the 
claims accrue.


Sec. 536.130  Claims exceeding $500,000.

    Maritime claims in favor of the United States, except claims for 
salvage services, may not be settled or compromised under this section 
at a net amount exceeding $500,000 payable to the United States. 
However, all such claims otherwise within the scope of this section 
will be investigated in accordance with the procedures in subpart B and 
reported to the Commander, USARCS. The Commander, USARCS will forward 
the claim to the Secretary of the Army, the Assistant Secretary of the 
Army (Financial Management) as designee to the secretary or other 
designee of the Secretary who will then certify it to Congress.


Sec. 536.131  Civil works activities.

    Rights of the United States to fines, penalties, forfeitures, or 
other special remedies in connection with the protection of navigable 
waters, the control and improvement of rivers and harbors, flood 
control, and other functions of the Corps of Engineers involving civil 
works activities are not dealt with in this section. However, claims 
for money damages that are civil in nature, arising out of civil works 
activities of the Corps of Engineers and otherwise under this section, 
for which an adequate remedy is not available to the COE, may be 
processed under this section.


Sec. 536.132  Delegation of authority.

    (a) The Secretary of the Army, the Assistant Secretary of the Army 
(Financial Management) as designee of the Secretary or other designee 
of the Secretary may compromise an affirmative claim by the United 
States under this subpart subject only to the statutory limit 
(presently $500,000) on the amount to be received (10 U.S.C. 
4803(a)(2)).
    (b) TJAG, TAJAG and the Commander, USARCS or his designee within 
USARCS may settle, or compromise, and receive payment on a claim by the 
United States under this subpart if the amount to be received does not 
exceed $100,000. They may also terminate collection of claims for the 
convenience of the government in accordance with the standards 
specified by the Department of Justice (see 4 CFR, Parts 103 and 104), 
regardless of the amount claimed.
    (c) Chiefs of command claims services, the Chief Counsel, Corps of 
Engineers, heads of Corps of Engineers area claims offices, and heads 
of other area claims offices designated by the Commander, USARCS may 
receive payment in full or compromise any claim by the United States 
under this subpart provided:
    (1) The amount of the government's claim does not exceed $100,000, 
and
    (2) The amount to be received does not exceed $25,000. The 
authority delegated in this paragraph to Corps of Engineers claims 
offices is subject to such limitations as may be imposed by the Chief 
Counsel, Corps of Engineers.
    (d) The head of any claim office may assert and receive payment for 
the full amount of a claim not exceeding $100,000 by the United States 
under this subpart.


Sec. 536.133  Demands.

    (a) It is essential that demands for payment or notice of intention 
to make such demands be made as soon as possible following receipt of 
information of damage to Army property where legal liability to respond 
is present or possibly present. Except in cases falling under 
Sec. 536.132(b), copies of the initial demand/notice of intention to 
make demand letters, as well as copies of subsequent correspondence 
will be promptly provided to the Commander, USARCS, who will monitor 
the progress of such claims.
    (b) Where, in response to any demand made by a field claims office, 
a respondent denies liability, fails to respond within a reasonable 
period, or offers a compromise settlement, the file will be promptly 
forwarded to the Commander, USARCS, except in cases where proposed 
compromise settlement is deemed acceptable and the claim is otherwise 
within the authority delegated in Sec. 536.132(b).

Investigations and Reports


Sec. 536.134  Procedure.

    Claims under this subpart will be investigated and reported in 
accordance with subpart B of this part, AR 55-19 or other applicable 
regulations.


Sec. 536.135  Reports.

    A copy of the report of a marine casualty investigation disclosing 
the basis for a claim under section II or III of this subpart will be 
furnished to the Commander, USARCS within 60 days after the day on 
which the marine casualty occurred or after notice of such casualty. An 
interim report will be forwarded if the investigation has not been 
completed within the 60-day period. The report will contain original 
signed statements of all witnesses and other original documentary 
evidence to the extent practicable.


Sec. 536.136  Form of claim.

    (a) A demand letter may initiate a claim. Formalization of a claim 
may be accomplished at any time before consummation of the settlement 
or compromise. It is preferable that claims under section II of this 
subpart be submitted on SF 95; however, the submission of a special 
form, in view of commercial practice, is not required. The reporting of 
a maritime casualty under Sec. 536.135 will not be deferred in 
anticipation of the receipt of a claim.
    (b) Claims of foreign nationals will be stated in the currency of 
the country in which the casualty occurred, or in the currency of the 
nationality of the claimant if other than the country of the casualty.

Subpart I--Claims Under Article 139, Uniform Code of Military 
Justice


Sec. 536.137  Statutory authority.

    The authority for this subpart is Article 139, UCMJ (10 U.S.C. 
939), which provides for redress for property willfully damaged or 
destroyed, or wrongfully taken, by members of the armed forces of the 
United States.


Sec. 536.138  Purpose.

    This subpart sets forth the standards to be applied and the 
procedures to be followed in the processing of claims for damage, loss, 
or destruction of property owned by or in the lawful possession of an 
individual whether civilian or military, a business, a charity, or a 
State or local government, where the property was wrongfully taken or 
willfully damaged by military members of DA. Claims cognizable under 
other claims statutes may be processed under this subpart.


Sec. 536.139  Effect of disciplinary action.

    Administrative action under Article 139 and this subpart is 
entirely separate and distinct from disciplinary action taken under 
other sections of the UCMJ or other administrative actions. Because 
action under Article 139 and this subpart requires independent findings 
on issues other than guilt or innocence, the mere fact that a soldier 
was convicted or acquitted of charges is not dispositive of a claim 
under Article 139.


Sec. 536.140  Claims cognizable.

    Claims cognizable under Article 139, UCMJ, are limited to--
    (a) Claims for property willfully damaged. Willful damage is damage 
which is inflicted intentionally, knowingly, and purposefully without 
justifiable excuse, as distinguished from damage caused inadvertently 
or thoughtlessly through simple or gross negligence. Damage, loss, or 
destruction of property caused by riotous, violent, or disorderly acts, 
or by acts of depredation, or through conduct showing reckless or 
wanton disregard of the property rights of others may be considered 
willful damage.
    (b) Claims for property wrongfully taken. A wrongful taking is any 
unauthorized taking or withholding of property, not involving the 
breach of a fiduciary or contractual relationship, with the intent to 
temporarily or permanently deprive the owner or person lawfully in 
possession of the property. Damage, loss, or destruction of property 
through larceny, forgery, embezzlement fraud, misappropriation, or 
similar offense may be considered wrongful taking.


Sec. 536.141  Claims not cognizable.

    Claims not cognizable under this subpart and Article 139 include--
    (a) Claims resulting from negligent acts.
    (b) Claims for personal injury or death.
    (c) Claims resulting from acts or omissions of military personnel 
acting within the scope of their employment.
    (d) Claims resulting from the conduct of Reserve component 
personnel who are not subject to the UCMJ at the time of the offense.
    (e) Subrogated claims, including claims by insurers.


Sec. 536.142  Limitations on assessments.

    (a) Time Limitations. To be considered, a claim must be submitted 
within 90 days of the incident out of which the claim arose, unless the 
special court-martial convening authority (SPCMCA) acting on the claim 
determines that good cause has been shown for the delay.
    (b) Limitations on amount. If the General Court-Martial Convening 
Authority (GCMCA), or designee, acting on the claim determines that an 
assessment against a soldier in excess of $10,000 for a single incident 
is meritorious, he or she will assess the pay of that soldier in the 
amount of $10,000 and forward the claim to the Commander, USARCS with 
his or her recommendation as to the additional amount that should be 
assessed.
    (1) A SPCMCA has authority to approve a pay assessment not to 
exceed $5,000 on a single incident and deny a claim in any amount.
    (2) A GCMCA, or designee, has authority to approve a pay assessment 
in an amount not to exceed $10,000 on a single incident.
    (3) Only the Commander, USARCS, or designee, has authority to 
approve a pay assessment in an amount greater than $10,000 on a single 
incident.
    (c) Direct damages. Assessments are limited to direct damages for 
the loss or damage to property. Indirect, remote, or consequential 
damages may not be considered under this subpart.


Sec. 536.143  Procedure.

    Area claims offices and claims processing offices with approval 
authority are responsible for publicizing the Article 139 program and 
maintaining a log for Article 139 claims presented in their areas (see 
DA Pam 27-162, paragraph 10-6). Area claims offices and claims 
processing offices with approval authority are required to monitor 
action taken on Article 139 claims and ensure that time requirements 
are met. If assessment action on a particular claim will be unduly 
delayed, the office may consider the claim under 31 U.S.C. 3721 and 
subpart K of this part if it is otherwise cognizable under that 
authority. The office will counsel the claimant to repay any 
overpayment if the Article 139 claim is later successful (see 
Sec. 516.163(d)(1).
    (a) Form if a claim and presentment. A claim must be presented by 
the claimant or his or her authorized agent orally or in writing. The 
claim must be reduced to writing, signed, and for a definite sum in 
U.S. dollars within 10 days after oral presentment. (See 
Sec. 536.20(d)(1)(i))
    (b) Action upon receipt of a claim. Any officer receiving a claim 
will forward it within 2 working days to the SPCMCA over the soldier or 
soldiers against whom the claim is made. If the claim is made against 
soldiers under the jurisdiction of more than one such convening 
authority who are under the same general court-martial convening 
authority, the claim will be forwarded to that general court-martial 
convening authority, who will designate one SPCMCA to investigate and 
act on the claim as to all soldiers involved. If the claim is made 
against soldiers under the jurisdiction of more than one SPCMCA at 
different locations and not under the same general court-martial 
convening authority, the claim will be forwarded to the SPCMCA whose 
headquarters is closest to the situs of the incident, who will 
investigate and act on the claim as to all soldiers involved. If a 
claim is made against a member of one of the other Military Services, 
the claim will be forwarded to the commander of the nearest MACOM of 
that Service.
    (c) Action by the SPCMCA. (1) If the claim appears to be 
cognizable, the SPCMCA will appoint an investigating officer within 4 
working days of receipt of a claim. The investigator will use the 
procedures of this subpart supplemented by the procedures of AR 15-6, 
chapter 4, applicable to informal investigations. The claims officer of 
a command, if he or she is a commissioned officer, may be appointed as 
the investigating officer.
    (2) If the claim is not made against a person who is a member of 
the armed forces of the United States at the time the claim is 
received, or if the claim otherwise does not appear to be cognizable 
under Article 139, the SPCMCA may refer it for legal review (see 
paragraph (e) of this section) within 4 working days of receipt. If, 
after legal review, the SPCMCA determines that the claim is not 
cognizable, he or she may take final action disapproving the claim (see 
paragraph (f)) without appointing an investigating officer.
    (d) Action by the investigating officer. The investigating officer 
will provide notification to the soldier against whom the claim is 
made.
    (1) If the soldier indicates a desire to make voluntary 
restitution, the investigating officer may, with the convening 
authority's concurrence, delay proceedings until the end of the next 
pay period to accomplish this. If the soldier makes payment to the 
claimant's full satisfaction, the claim will be dismissed.
    (2) In the absence of full restitution, the investigating officer 
will determine whether the claim is cognizable and meritorious under 
the provisions of Article 139 and this subpart and the amount to be 
assessed each offender. This amount will be reduced by any restitution 
accepted by the claimant from an offender in partial satisfaction. 
Within 10 working days or such time as the SPCMCA may provide, the 
investigating officer will make findings and recommendations and submit 
these to the SPCMCA.
    (3) If the soldier is absent without leave so that he or she cannot 
be provided with notification, the Article 139 claim may be processed 
in the soldier's absence. If an assessment is approved, a copy of the 
claim and memorandum authorizing pay assessment will be forwarded by 
transmittal letter to the servicing finance and accounting office (FAO) 
for offset input against the soldier's pay account. In the event the 
soldier is dropped from the rolls, the servicing FAO will forward the 
assessment documents to Commander, Defense Finance and Accounting 
Services, ATTN: Military Pay Operations, Indianapolis, Indiana 46249.
    (e) Legal review. The SPCMCA will refer the claim to the area 
claims office or claims processing office servicing his or her command 
to review for legal sufficiency and advice. This will be either after 
completion of the investigating officer's report or subsequent to the 
SPCMCA's decision that the claim is clearly not cognizable 
(Sec. 536.143(c)(2)). That office will furnish within 5 working days or 
such time as the SPCMCA will provide a written opinion as to--
    (1) Whether the claim is cognizable under the provisions of Article 
139 and this subpart.
    (2) Whether the findings and recommendations are supported by 
evidence.
    (3) Whether there has been substantial compliance with the 
procedural requirements of Article 139, this subpart, and AR 15-6.
    (4) Whether the claim is clearly not cognizable (see Sec. 536-
143(c)(2)) and final denial action can be taken without appointing an 
investigating officer.
    (5) If the investigator recommends an assessment more than $5,000, 
the Judge Advocate/claims attorney will forward the packet to the head 
of the area claims office for the legal review. Within 5 working days, 
the head of the area claims office will forward the packet, with 
recommendations, to the GCMCA for approval of an assessment not to 
exceed $10,000. If the recommended assessment is over $10,000, the head 
of the area claims office will then forward the packet to the 
Commander, USARCS for final approval of the assessment.
    (f) Final action. After considering the advice of the legal 
advisor, the approval authority will disapprove or approve the claim in 
an amount equal to or less than the amount recommended by the 
investigating officer up to $10,000. The approval authority will notify 
the claimant, and any soldier subject to his or her jurisdiction, of 
the determination and the right to request reconsideration. (See 
Sec. 536.144.) A copy of the investigating officer's findings and 
recommendations will be enclosed with the notice. The approval 
authority will then suspend action on the claim for 10 working days 
pending receipt of a request for reconsideration unless he or she 
determines that this delay will result in substantial injustice. The 
approval authority will direct the servicing finance officer for the 
soldier against whom assessments are approved to withhold such amount 
from the soldier not to exceed $10,000. (See Sec. 536.142(b)). For any 
soldier not subject to the approval authority's jurisdiction, the 
approval authority will forward the claim to that commander who does 
exercise special court-martial jurisdiction over the soldier for 
collection action.
    (g) Assessment. Subject to any limitations provided in appropriate 
regulations, the servicing finance officer will withhold the amount 
directed by the approval authority and pay it to the claimant. The 
assessment is not subject to appeal and is conclusive on any finance 
officer. If the servicing finance officer finds that the required 
amount cannot be withheld because he or she does not have custody of 
the soldier's pay record or because the soldier is in a no pay due 
status, the servicing finance officer will promptly notify the approval 
authority of this in writing.
    (h) Post settlement action. After action on the claim is completed, 
the claims office servicing the command which took final action will 
retain the original claim file and forward a complete copy of the claim 
file to the SPCMCA. The article 139 claim will be filed locally, IAW 
the Modern Army Record Keeping System (MARKS). If a claim for the same 
incident is filed UP AR 27-20, chapter 11, a copy of the article 139 
claim will be incorporated into the subpart K claim file.
    (i) Remission of indebtedness. Title 10, United States Code, 
4837(d), which authorizes the remission and cancellation of 
indebtedness of an enlisted person to the United States or its 
instrumentalities, is not applicable and may not be used to remit and 
cancel indebtedness determined as a result of action under Article 139.


Sec. 536.144  Reconsideration.

    (a) General. Although Article 139 does not provide for a right of 
appeal, either the claimant or a soldier whose pay is assessed may 
request the SPCMCA or a successor in command to reconsider the action. 
A request for reconsideration will be submitted in writing and will 
clearly state the factual or legal basis for the relief requested. The 
SPCMCA may direct that the matter be reinvestigated.
    (b) Reconsideration by the original SPCMCA. The original SPCMCA may 
reconsider the action so long as he or she occupies that position, 
regardless of whether a soldier whose pay was assessed has been 
transferred. The original SPCMCA may modify it if he or she determines 
that the action was incorrect, subject to paragraph (d) of this 
section. However, the SPCMCA should only modify the action on the basis 
of fraud, substantial new evidence, errors in calculation, or mistake 
of law.
    (c) Reconsideration by a successor in command. Subject to paragraph 
(d) of this section, a successor in command may only modify an action 
on the basis of fraud, substantial new evidence, errors in calculation, 
or mistake of law apparent on the face of the record.
    (d) Legal review and action. Prior to modifying the original 
action, the SPCMCA will have the claims office render a legal opinion 
and fully explain the basis for modification as part of the file. If a 
return of assessed pay is deemed appropriate, the SPCMCA should request 
the claimant to return the money, setting forth the basis for the 
request. There is no authority for repayment from appropriated funds.
    (e) Disposition of files. After completing action on 
reconsideration, the SPCMCA will forward the reconsideration action to 
the claims office who will then file the action IAW Sec. 536.143(h).

Subpart J--Claims Cognizable Under the Foreign Claims Act

General


Sec. 536.145  Statutory authority.

    The authority for this subpart is contained in the following 
statutes:
    (a) 10 U.S.C. 2734 as amended, commonly referred to as ``The 
Foreign Claims Act.''
    (b) 10 U.S.C. 2734a as amended, commonly referred to as ``The 
International Agreement Claims Act.''
    (c) The Act of 8 September 1961 (10 U.S.C. 2736), as amended.
    (d) Act of 4 March 1923 (36 U.S.C. 121, 138b).


Sec. 536.146  Scope.

    (a) This subpart implements the FCA and authorizes the 
administrative settlement of claims of inhabitants of a foreign 
country, or by a foreign country or a political subdivision thereof, 
against the United States for personal injury or death or property 
damages caused outside the United States, its territories, 
commonwealths, or possessions by military personnel or civilian 
employees of the DA, or claims which arise incident to noncombat 
activities of the Army.
    (b) Claims resulting from the activities, or caused by personnel of 
another military department, service, or agency of the United States 
may also be settled by Army foreign claims commissions as authorized by 
this subpart.
    (c) Claims arising from acts or omissions of employees of 
nonappropriated fund activities may also be settled by Army foreign 
claims commissions pursuant to this subpart if otherwise applicable, 
but are payable from nonappropriated funds (subpart L).


Sec. 536.147  Claims cognizable under other subparts.

    (a) Subparts C and E. Claims within the scope of the FCA, which 
otherwise would be cognizable under subpart E will be considered first 
under this subpart. Claims by foreign inhabitants covered by the FCA 
may not be paid under the provisions of subpart C (see 10 U.S.C. 
2733(b)(2)).
    (b) Subpart I. Consideration may be given to first settling under 
subpart I, any claim which is also within the scope of the FCA. 
However, if the settlement of the claim under subpart I will cause 
identifiable hardship to the claimant, procedures of this subpart will 
be used.
    (c) Subpart K. Claims cognizable under this subpart, which are also 
cognizable under subpart K, will be considered first under the latter 
subpart.
    (d) Subpart H. Claims that may be settled under subpart H may be 
settled under this part only when specifically authorized by the 
Commander, USARCS. (See Sec. 536.125(b).)


Sec. 536.148  Claims provisions of treaties and agreements.

    When a foreign government has assumed responsibility for settling 
claims against the United States pursuant to Article VIII, NATO--SOFA, 
or other similar treaty or agreement, any claim presented to U.S. 
authorities will be forwarded to the appropriate United States sending 
State Office, or similar office, for referral to the foreign 
government. The investigation by U.S. authorities of claims cognizable 
under a SOFA will normally be limited to securing evidence from U.S. 
sources.


Sec. 536.149  Presentation of claims.

    A claim may not be allowed under this subpart unless it is 
presented within 2 years after it accrues. Such presentation may be 
made to United States authorities or to a foreign government in 
accordance with Article VIII, NATO-SOFA or other applicable treaty or 
agreement.


Sec. 536.150  Form of claims.

    (a) A claim normally will be presented in writing. A report of the 
incident to the authorities stated in Sec. 536.149 by the claimant or 
agent requesting compensation is an adequate presentation. Under 
unusual circumstances, a claim presented orally by the claimant to U.S. 
authorities may be considered acceptable. An oral claim must be reduced 
to writing, however, not more than 3 years after the date on which it 
accrues. The written claim must state the time, place, and nature of 
the incident; the nature and extent of damage, loss, or injury; and the 
amount of compensation claimed.
    (b) A claim will be stated in the currency of the country where the 
incident occurred, or the country where the claimant was an inhabitant 
at the time of the incident. The U.S. dollar equivalent of a foreign 
currency, computed at the time the claim is filed and based on the 
annual Foreign Currency Fluctuation Account exchange rate (where 
applicable), will determine whether a foreign claims commission has 
monetary jurisdiction to settle the claim. (See Sec. 536.149.)
    (c) Claims commissions and command claims service will coordinate 
informally with the Chief, Special Claims Branch, USARCS to determine 
whether it is necessary to comply with the mirror file requirements of 
Sec. 536.21 (c) and (d), for any claim cognizable under this subpart in 
which the amount claimed is greater than $50,000 and a foreign 
government is not responsible for adjudication under a SOFA or other 
agreement.


Sec. 536.151  Claimants.

    (a) General. (1) In personal injury or property damage cases, a 
claimant must have been an inhabitant of a foreign country at the time 
of the incident and not otherwise excluded as a claimant. In a wrongful 
death case, the proper claimants are those who are entitled by the law 
of the country where the incident occurred to bring a claim for the 
decedent's death, and the decedent must have been an inhabitant of a 
foreign country at the time of the incident and not otherwise excluded 
as a claimant. However, it is not necessary that the claimant in 
personal injury and property damage cases, or the decedent in a death 
case, be a citizen of, or have legal domicile in the foreign country, 
to establish that he or she is an inhabitant thereof.
    (2) A corporation or other organization doing business in a foreign 
country on a permanent basis may qualify as a proper claimant although 
organized under U.S. law.
    (3) United States citizens residing overseas may be proper 
claimants provided it is established that they actually are inhabitants 
of a foreign country (see paragraph 7-4c(1)(a), DA Pam 27-162) and are 
not otherwise excluded.
    (4) The government of a foreign country and political subdivisions 
thereof are proper claimants unless waiver provisions of applicable 
international agreements exclude such claims.
    (b) Claimants excluded. (1) A national, or a corporation controlled 
by a national, of a country at war or engaged in armed conflict with 
the United States or of any country allied with such enemy country, is 
excluded as a claimant, unless the appropriate foreign claims 
commission considering the claim or the responsible military commander, 
determines that the claimant is, and at the time of the incident was, 
friendly to the United States.
    (2) United States military personnel and civilian employees of the 
U.S. Government or its agencies and instrumentalities and their 
dependents, who are normally residents of the United States and who, at 
the time of the incident giving rise to the claim, are residing in a 
foreign country primarily because of their own or their sponsor's duty 
or employment status, are not foreign inhabitants and are excluded from 
coverage under the Foreign Claims Act.
    (i) Foreign born spouses, children and other dependent family 
members of such military personnel and United States employees are also 
deemed to be inhabitants of the United States and excluded from 
coverage under this subpart if they have resided with their sponsor in 
the United States and are now overseas primarily because of their 
sponsor's duty assignment.
    (ii) Children born to or adopted by a member of the force or 
civilian component who has not been reassigned to the United States 
since the date of the birth or adoption, are deemed to be an inhabitant 
of the United States and excluded from coverage under this subpart from 
the time they are born or adopted. However, children born or adopted 
overseas will be deemed to be foreign inhabitants if there is clear 
evidence that they are not a member of the sponsor's household and are 
not residing overseas primarily because of the sponsors duty 
assignment. For example, a child born or adopted overseas would be 
deemed to be a foreign inhabitant if the child continued to reside 
overseas with the other parent after their military or civilian 
employee sponsor returns to the United States or is transferred to 
another foreign country on permanent change of station orders. (See 
paragraph 7-4c, DA Pam 27-162.)
    (iii) In the case of a spouse married overseas to a member of the 
armed forces or a U.S. civilian employee, the spouse continues to be a 
foreign inhabitant until he or she moves with the sponsor to another 
foreign country or to the United States.
    (iv) Parents or other relatives who are financially dependent on a 
member of the military or civilian employee, but are not members of the 
household, continue to be foreign inhabitants. If they are members of 
the sponsor's household they lose foreign inhabitant status once they 
have resided in the United States or another foreign country with the 
sponsor.
    (3) Other residents of the United States, or its territories, 
commonwealths, or possessions who are visiting, touring, or employed 
overseas, but not inhabitants of a foreign country, are excluded.
    (c) Insurers or other subrogees. (1) Under this subpart the 
property claim of an insured, but not that of a subrogee, may be 
considered. This precludes consideration of the claim of an insurer 
subrogated by operation of law or the terms of a policy of insurance 
for payments made by it to or for its insured. However, an insured 
party will not be required to exhaust a remedy against an insurer, 
which the insured obtained by payment of a premium to that insurer, 
prior to payment of a property damage claim under this subpart.
    (2) Further, no claim or any part thereof, the amount of which has 
been recovered or is reasonably recoverable from workmen's 
compensation, health insurance, social security, or any indemnifying 
law or indemnity contract, may be paid.
    (3) Provisions of paragraphs (c) (1) and (2) of this section are 
intended to preclude any payment that does not go to and remain with 
the injured party claimant.
    (4) If the application of paragraph (c)(2) of this section would 
impose severe hardship upon an individual, the claim should be 
forwarded to Commander, USARCS, who is authorized to make exceptions in 
individual cases upon presentation of adequate justification.


Sec. 536.152  Claims payable.

    (a) A claim for death, personal injury, or loss or damage to 
property may be allowed under this subpart if it resulted from a 
negligent or wrongful act or omission of any of the following 
categories of personnel regardless of whether the act or omission was 
within the scope of their employment--
    (1) Military personnel of the United States.
    (2) Civilian employees of a military department of the Department 
of Defense who are U.S. citizens. Claims generated by U.S. citizens who 
are employees of a nonappropriated fund activity who are paid with 
nonappropriated funds will be paid in accordance with the provisions of 
this subpart and subpart L from nonappropriated funds.
    (3) Other civilian employees who are not U.S. citizens and were 
recruited or transferred from a country other than the one in which 
they are employed and where the incident occurred.
    (b) Claims based on the negligent or wrongful acts of the following 
categories of employees will be paid under this subpart only if the act 
was within the scope of their employment--
    (1) Civilian employees who are not U.S. citizens, who were 
recruited in the country in which they are employed, and where the 
incident occurred. Claims arising from the operation of U.S. Armed 
Forces vehicles or other equipment by the employees described in the 
preceding sentence, however, may be paid, even though the employees are 
not acting within the scope of their employment, provided the employer 
or owner of the vehicle or other equipment would be liable under local 
law in the circumstances involved.
    (2) Officers or civilian employees of the American Battle Monuments 
Commission, acting within the scope of employment. Claims generated by 
such personnel will be paid from American Battle Monuments Commission 
appropriations.
    (3) Certain Red Cross volunteers meeting the criteria set forth in 
AR 40-3, paragraph 2-42.
    (c) A claim may be settled under this subpart if it arises from 
non-combat activities (see glossary). Activities incident to combat, 
whether in time of war or not, are excluded.
    (d) Property for the loss or damage or which claims may be settled 
under this subpart includes--
    (1) Real property used and occupied in connection with training, 
field exercises, or maneuvers. An allowance may be made for the use and 
occupancy of real property arising out of trespass or other tort, even 
though claimed as rent. Real estate claims founded upon contracts are 
processed under the provisions of AR 405-15.
    (2) Personal property bailed to the Government under an agreement, 
express or implied, unless the owner has expressly assumed the risk of 
damage or loss.


Sec. 536.153  Claims not payable.

    A claim may not be allowed under this subpart that--
    (a) Results from action by an enemy or results directly or 
indirectly from an act of the armed forces of the United States in 
combat, except if it arises from an accident or malfunction incident to 
the operation of an aircraft of the armed forces of the United States 
including its airborne ordnance, indirectly related to combat, and 
occurring while preparing for, going to, or returning from a combat 
mission.
    (b) Is purely contractual in nature.
    (c) Is one for which a foreign country is responsible under Article 
VIII NATO-SOFA, or other similar treaty or agreement. (See 
Sec. 536.148). However, if a foreign country refuses to recognize legal 
responsibility for the claim, or to consider it under applicable treaty 
provisions, the senior Army JA in country or, where the estimated value 
of the claim is within USARCS authority, the Commander, USARCS, may 
authorize a foreign claims commission to consider the claim.
    (d) Arises from private or domestic obligations as distinguished 
from Government transactions.
    (e) Is based solely on compassionate grounds. (See DA Pam 27-162, 
paragraph 8-4.)
    (f) Is a bastardy claim.
    (g) Arises from the operations of a nonappropriated fund activity, 
unless generated by military personnel performing assigned duties 
(subpart L).
    (h) Is for the personal injury or death of a member of the armed 
forces of the United States incurred incident to service. (See 
Sec. 536.25.)
    (i) Is for the personal injury or death of a Government employee 
for whom benefits are provided by the FECA (5 U.S.C. 8101-8150).
    (j) Is for the personal injury or death of an employee, including 
nonappropriated fund employees, for whom benefits are provided by the 
Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 901 et 
seq.).
    (k) Is for the personal injury or death of any employee for whom 
benefits are provided under workmen's compensation type laws or 
regulations, including local law or custom, in cases where contribution 
is made or insurance premiums paid directly or indirectly by the United 
States on behalf of the injured employee. If, in the opinion of a 
foreign claims commission the claim should be considered payable; (e.g. 
injuries did not result from the normal risk of employment or adequate 
compensation is not payable under workmen's compensation laws,) the 
file will be forwarded with recommendations through claims channels to 
the Commander, USARCS, who may authorize payment of an appropriate 
award. The Commander, USARCS, also may specify that all or any part of 
any compensation received by the claimant from workmen's compensation 
sources, as above, will be deducted from the award to claimant. The 
claim of an insurance carrier subrogee who has received premiums paid 
directly or indirectly by the United States on behalf of the injured 
employee, however, is not payable.
    (l) Is for taking of property by technical trespass, such as the 
overflight of aircraft or a taking contemplated by the Fifth Amendment 
to the U.S. Constitution, as distinguished from common law trespass. 
(See AR 405-15, paragraph 2c, and DA Pam 27-162, paragraphs 8-46 and 8-
75).
    (m) Is for reimbursement for medical, hospital, or burial expenses 
furnished at the expense of the United States.
    (n) Is for patent or copyright infringement. (See AR 27-60.)
    (o) Is for war trophies, or articles intended directly or 
indirectly for persons other than the claimant or members of his or her 
immediate family such as articles acquired to be disposed of as gifts 
or for sale to another, voluntarily bailed to the Army, or for precious 
jewels and other articles of extraordinary value voluntarily bailed to 
the DA. The preceding sentence is not applicable to claims involving 
registered or insured mail. No allowance will be made for any item when 
the evidence indicates that the acquisition, possession, or 
transportation thereof was in violation of DA directives.
    (p) Is for rent, damage, or other payments involving the 
acquisition, use, possession, or disposition of real property or 
interests therein by and for the DA, except as authorized by 
Sec. 536.152(c)(1). Real estate claims founded upon contract are 
generally processed under AR 405-15. (See DA Pam 27-162, paragraph 8-
46.)
    (q) Is not in the best interests of the United States or is 
contrary to public policy, general principles of equity, or the basic 
intent of the FCA. Examples are claims by inhabitants of unfriendly 
countries, claims by or based on injury or death of individuals 
considered to be unfriendly to the United States, or claims for 
property losses resulting directly or indirectly from illegal 
activities of the claimant, such as drug dealing, black-marketing, or 
illegal loan sharking. When a claim is considered to be not payable for 
the reasons stated in this paragraph, the issue will be presented to 
the Commander, USARCS for determination of the applicability of this 
exclusion.
    (r) Arises from the activities of the Panama Canal Commission.
    (s) Is based upon an act or omission of a member or employee of the 
Army, exercising due care, in the execution of a statute or regulation, 
whether or not such statute or regulation is valid. However, this 
exception should not be used without prior approval of the Commander, 
USARCS.
    (t) Is based upon the exercise or performance or the failure to 
exercise or perform a discretionary function or duty on the part of a 
Federal agency, or a member or employee of the Army, whether or not the 
discretion involved is abused. However, this exception should not be 
used without prior approval of the Commander, USARCS.
    (u) Arises in respect to the assessment or collection of any tax or 
custom duty, or the detention of any goods or merchandise by any 
officer of customs or excise or any other law enforcement officer.
    (v) Is a claim for which a remedy is provided by the Suits in 
Admiralty Act (46 U.S.C. 741-752) or the Public Vessels Act (46 U.S.C. 
781790), or cognizable under subpart H, unless specifically authorized 
by the Commander, USARCS. (See Sec. 536.147(d).)
    (w) Is a claim arising out of an act or omission of any employee of 
the Government in administering the provisions of the Trading With the 
Enemy Act (50 U.S.C. App, sections 1-31). (See DA Pam 27-162, paragraph 
8-8d.)
    (x) Is for damages caused by the imposition or establishment of a 
quarantine by the United States.
    (y) Results wholly from the negligent or wrongful act of the 
claimant or his or her agent. Claims involving comparative negligence 
are not barred by this provision.
    (z) Arises out of malicious prosecution, abuse of process, libel, 
slander, misrepresentation, deceit, or interference with contract 
rights.
    (aa) Is for damages caused by the fiscal operations of the DA, the 
Treasury, or by regulation of the monetary system.


Sec. 536.154  Compensation.

    (a) In determining an appropriate award, the law and custom of the 
country where the incident occurred will be used to determine what 
elements of damages are payable and which individuals are entitled to 
receive compensation. However, where the claimant is an inhabitant of 
another foreign country and only temporarily in the country where the 
incident occurred, the quantum of certain elements of damages, such as 
lost wages and future medical care, may be calculated based on the law 
and economic conditions in the country of the claimant's permanent 
residence. Punitive damages and interest will not be allowed. Court 
costs, attorney fees, bail, costs of filing a claim, and similar 
charges also are not allowed.
    (b) Local law or custom pertaining to contributory or comparative 
negligence and to joint tortfeasors will be applied.


536.155  Computation of amount.

    (a) The amount allowed will, to the extent possible, be apportioned 
among claimants as prescribed by local law.
    (b) After appropriate compensation for the total damages suffered 
has been computed, any payment claimant has received from the 
tortfeasor, or any joint tortfeasor, will be deducted. This includes 
amounts collectible from a tortfeasor's or joint tortfeasor's insurance 
company or amounts paid by any other third party.
    (c) Deductions for insurance. (1) Normally there will be deducted 
from any award the amount of any applicable insurance coverage 
recovered or an amount that can be reasonably expected to be recovered 
and which has been or will be paid to the claimant. In this regard, 
every effort will be made to monitor the insurance aspect of the case 
and encourage direct settlement between the claimant and the insurer. 
(See Sec. 536.151(c)(1).)
    (2) When efforts under paragraph (c)(1) of this section are of no 
avail or it otherwise is determined that an insurance settlement will 
not be reasonably available for application to the award, settlement 
may be accomplished without making a deduction. In such cases, an 
assignment of the insured's rights against the insurer will be obtained 
and, in appropriate cases, reimbursement action will be instituted 
against the insurer under applicable procedures.
    (3) If the reason that an insurance settlement is not available is 
due to insolvency or bankruptcy of the insurer, no award will be made 
until prior consent has been obtained from the Commander, USARCS. In 
this event, a report on a bankruptcy will be forwarded without delay 
setting forth all pertinent information including the alleged reasons 
for the bankruptcy and the facts concerning the licensing of the 
insurer.
    (d) Settlements will be stated in the appropriate foreign currency. 
To determine the proper approval authority, the settlement or the 
claimed amount (in claims where a settlement cannot be reached) will be 
converted to the U.S. dollar equivalent (based on the annual Foreign 
Currency Fluctuation Account exchange rate, where applicable) on the 
date of the commission's action.
    (e) Payment will be made in the currency of the country in which 
the incident occurred or where the claimant resided at the time of the 
incident. However, if the claimant resides in another foreign country 
at the time of payment, payment in an amount equivalent to that which 
would have been paid under the preceding sentence may be made in the 
currency of that third country.
    (f) No more than 20% of the total cost of an award to the United 
States may be paid as attorney fees or as a fee by any representative. 
This fee limitation should be made a part of all settlement agreements.
    (g) In appropriate cases, a commission or other approval authority 
can require a structured settlement with periodic or deferred payments 
if it is feasible to make such arrangements in the country where the 
claimants reside. Such settlement are especially appropriate on claims 
of minors. In cases where the time, duration, amount or need for any 
element of future damages is uncertain, the part of the award for such 
damages may be paid into a reversionary trust with the reversion to the 
United States.

Foreign Claims Commissions


Sec. 536.156  Appointment and functions.

    (a) Claims cognizable under this section will be referred to a 
foreign claims commission for processing regardless of the amount 
claimed. The commander senior Judge Advocate of a command having a 
command claims service will appoint necessary foreign claims 
commissions to acton claims arising within his or her geographic area 
jurisdiction, and on claims arising in another geographic area 
jurisdiction that are transferred by agreement between the commanders 
involved. The senior Judge Advocate may delegate this authority to 
commander or chief of the command claims service.
    (b) All other commissions will be appointed by the Commander, 
USARCS, to act on any claims referred to the commission regardless of 
where the claim arose. Commissions appointed by the Commander, USARCS, 
for units based on CONUS may act on any claim arising out of the 
operations of their unit. Any claims commission operating in or 
adjudicating claims arising out of an area within the jurisdiction of a 
command claims service will comply with the legal and procedural 
guidance of that service.
    (c) A commission may operate as an integral part of a command 
claims service that will determine the cases to be assigned to it, 
furnish necessary administrative services, and establish and maintain 
its records. Where a commission does not operate as a part of a command 
claims service, it may operate as a part of the office of a division, 
corps or higher command SJA, who will perform the foregoing functions.
    (d) Any appointing authority may relieve a commission appointed by 
him or her. One copy of each order concerning appointment, relief, or 
change of responsibility of a commission will be forwarded without 
delay to the Commander, USARCS.
    (e) Normally, the claims commission is responsible for the 
investigation of all claims referred to it, using the procedures in 
subpart B, Investigation, and any local procedures established by the 
appointing authority or command claims service responsible for the area 
in which the claim arose. The chief of a command claims service can 
request assistance on claims investigation in their geographical areas 
from units or organizations other than the claims commission. The 
Commander, USARCS can do likewise for any claim referred to a 
commission appointed under his authority.
    (f) When a foreign claims commission intends to deny a claim, award 
less than the amount claimed, or recommend an award less that the 
amount claimed but in excess of its authority, it will notify the 
claimant, the claimant's authorized agent, or the claimant's legal 
representative, in writing by the means most likely to ensure receipt 
by the claimant, of its intended action on the claim and the legal and 
factual basis for that action. The purpose of this notice is to give 
the claimant an opportunity to object to the commission's action and 
state the reasons for the objection before final action on the claim. 
Where the commission intends to award the amount claimed or to 
recommend to higher authority an award equal to the amount claimed, 
this procedure is not necessary.
    (1) This notice should be given at least 30 days prior to final 
action by the commission, except for small claims processed under the 
provisions of Subpart B, Small Claims.
    (2) If the commission proposes to make a partial award or to 
recommend a partial award to higher authority, a settlement agreement 
should be enclosed with the notice. If the commission is recommending 
an award in excess of its authority, the agreement should indicate that 
the recommendation is contingent upon approval by higher authority. 
Claimants will be advised they may either accept the commission's 
action by returning the signed settlement agreement or, if they are 
dissatisfied with the commission's action or recommendation, they may 
submit a response in writing stating the factual or legal reasons why 
they believe the commissions proposed action is incorrect.
    (3) A commission may alter its initial decision based on the 
claimant's response or proceed with its intended action. If the 
claimant's response raises a general policy issue, the commission may 
request an advisory opinion from the Commander, USARCS while retaining 
the claim for final action at its level.
    (4) Upon completion of its evaluation of the claimant's response, 
the commission will notify the claimant of its final decision and 
advise the claimant that its action is final and conclusive by law (10 
U.S.C. 2735), unless the final decision is a recommendation for payment 
above its authority. In that case, the commission will forward any 
response submitted by the claimant along with the commission's claims 
memorandum of opinion to the approval authority and will notify the 
claimant accordingly.
    (5) Every reasonable effort should be made to negotiate a mutually 
agreeable settlement on meritorious claims. When an agreement can be 
reached, the notice and response provisions above are not necessary. If 
the commission recommends an award in excess of it authority, the 
settlement agreement should indicate that its recommendation is 
contingent upon approval by higher authority.


Sec. 536.157  Composition.

    A foreign claims commission normally will be composed of either one 
or three members. Alternate members of three-member commissions may be 
appointed where circumstances require and be substituted for regular 
members for specific cases by order of the appointing authority. The 
appointing orders will clearly state who is to designate the president 
of a three-member commission. Two members of a three-member commission 
will constitute a quorum, and the commission decision will be 
determined by majority vote.


Sec. 536.158  Qualification of members.

    A member of a foreign claims commission normally will be either a 
commissioned officer or a claims attorney. At least two members of a 
three-member commission must be JAs or claims attorneys. In exigent 
circumstances, a qualified non-lawyer employee of the armed forces may 
be appointed to a foreign claims commission subject to prior approval 
by the Commander, USARCS. Such approval may be granted only upon a 
showing of the employee's status and qualifications and adequate 
justification of the need for such appointment (for example, lack of 
legally qualified personnel). The commission will be limited to 
employees who are citizens of the United States. An officer, claims 
attorney, or employee of another armed force will be appointed a member 
of an Army foreign claims commission only if approved by the Commander, 
USARCS.


Sec. 536.159  Delegation of authority.

    (a) One-member commission. Unless otherwise restricted by the 
appointing authority, a one-member foreign claims commission that is a 
JA or a claims attorney may consider and pay appropriate claims 
presented in any amount provided a mutually agreed settlement can be 
reached in an amount not over $15,000 or disapprove any claim presented 
in an amount not over $15,000. In no case will the jurisdictional limit 
of $15,000 be used to unfairly reduce payment of a claim meritorious in 
an amount over $15,000. Any other one-member foreign claims commission 
may consider and pay, in full or in part, claims presented in an amount 
not exceeding $2,500 that it considers meritorious.
    (b) Three-member commission. A three-member commission may take the 
following actions on a claim properly before the commission, unless 
otherwise restricted by the appointing authority.
    (1) Disapprove a claim presented in any amount. Where a claim 
presented in any amount over $50,000 is disapproved, the commission, 
after final action has been taken, will forward to the appointing 
authority the written notice to the claimant required by 
Sec. 536.157(f), any response by the claimant and its notice of final 
action on the claim.
    (2) Approve and pay, in full or in part, a claim filed in any 
amount which is adjudicated by the commission as meritorious in an 
amount not exceeding $50,000. For claims in excess of $50,000 in which 
the commission approves payment of an award for $50,000 or less, the 
commission, after taking final action, will forward to the appointing 
authority the written notice to the claimant required by 
Sec. 536.157(f), any response by the claimant and its notice of final 
action.
    (3) Recommend an award in excess of $50,000. The commission will 
comply with the notice and comment provisions of Sec. 536.157(f), and 
forward the claim to the approval authority under cover of a claims 
memorandum of opinion. Recommendations for awards in excess of the 
commissions authority will be sent through any command claims service 
responsible for the area in which the claim arose and, in the case of 
recommendations for awards in excess of $100,000, through the 
Commander, USARCS.
    (4) In any case where no claim exceeds $50,000 but the total amount 
to be awarded on all claims arising out of the same incident exceeds 
$100,000, no action will be taken to make payment until a claims 
memorandum of opinion (see Sec. 536.22) on the incident has been 
forwarded and reviewed by the Commander, USARCS or his designee.
    (c) TJAG, TAJAG and the Commander, USARCS or his designee at USARCS 
may approve and pay, in whole or in part, any claims so long as the 
amount of the award does not exceed $100,000; may disapprove any 
claims, regardless of either the amount claimed or the recommendation 
of the commission forwarding the claim; or, if a claim is forwarded to 
USARCS for approval of payment in excess of $50,000, may refer the 
claim back to the commission or to another commission for further 
action.
    (d) Payments in excess of $100,000 will be approved by the 
Secretary of the Army, the Assistant Secretary of the Army (Financial 
Management) as designee of the Secretary or other designee.
    (e) Following approval, where required, and receipt of an agreement 
by the claimant accepting the specific sum awarded by the commission, 
the claim will be processed for payment in the appropriate currency. 
The first $100,000 of any award will be paid from Army claims funds. 
The excess will be reported to the Claims Division, GAO, 441 G Street, 
NW., WASH DC 20548-9100, together with the documents listed in 
536.35(b).
    (f) The chief of an overseas command claims service may delegate to 
a one-member commission the responsibility for the receipt, processing, 
and investigation of any claim, regardless of amount, except those 
required to be referred to a receiving state office for adjudication 
under the provisions of a treaty concerning the status of our forces in 
the country where the claim arose. If, after investigation, it appears 
that action by a three-member commission is appropriate, the one-member 
commission should send the claim to the three-member commission with a 
complete investigation report to include a discussion of the applicable 
local law and a recommendation for disposition.


Sec. 536.160  Advance payments.

    (a) Advance payments pursuant to 10 U.S.C. 2736, as amended, in 
partial payment of meritorious claims to alleviate hardship are 
authorized under the conditions and procedures provided in subpart B, 
advance payments. However, no advance payment is authorized if the 
incident occurs in a foreign country which, pursuant to the NATO-SOFA 
or other similar threat or agreement, is responsible for the settlement 
of claims arising therein. An advance payment may be made in a nonscope 
claim.
    (b) The SJA of a command having a command claims service, or chief 
of a command claims service, is authorized to approve an advance 
payment under this section.

Subpart K--Personnel Claims and Related Recovery Actions

General


Sec. 536.161  Authority.

    31 U.S.C. 3721, formerly 31 U.S.C. 240-243, as amended by Pub. L. 
97-226, 28 July 1982 (the Act); DODD 5515.10, 17 June 1965, with C 1, 6 
July 1965 destruction of personal property of military personnel or 
civilian employees incident to their service, and recovery from 
carriers, warehouse firms, and other third parties responsible for such 
loss, damage, or destruction.


Sec. 536.162  Delegation of authority.

    (a) Settlement authority. (1) The statutory limit of $40,000 in 
settlement of claims and to disapprove claims regardless of the amount 
claimed:
    (i) TJAG.
    (ii) TAJAG.
    (iii) The Commander, USARCS, or the Chief, Personnel Claims and 
Recovery Division.
    (2) The following area delegated authority to pay up to $25,000 in 
settlement of claims and to disapprove claims regardless of the amount 
claimed:
    (i) The SJA and, subject to limitations imposed by him or her, the 
chief of the command claims service of the following commands:
    (A) USAREUR.
    (B) Eighth U.S. Army, Korea.
    (C) USARSO.
    (ii) Heads of area claims offices designated under Sec. 536.5(b) 
(1) and (2), (subject to the provisions of Sec. 536.5(f).
    (b) Approval authority. Heads of claims processing offices with 
approval authority are delegated authority to pay up to $10,000 in 
settlement of claims.
    (c) Office code. Authority delegated by this paragraph will not be 
exercised unless the claims settlement or approval authority has been 
assigned an office code.
    (d) Engineer area claims offices are not delegated approval or 
settlement authority under this subpart and will forward any such 
claims to the area claims office for the geographic area in which the 
engineer office is located.
    (e) If a claims adjudicated amount is in excess of the monetary 
jurisdiction of the claims office, the JA/claims attorney will approve 
and pay the claim up to the delegated authority of that office. Mark 
the outside of the file ``PRIORITY'' and forward it with all 
documentation (to include computer disk, paper screen and memorandum of 
opinion) to the next higher claims authority for additional payment.


Sec. 536.163  Scope.

    (a) This subpart prescribes the substantive bases and special 
procedural rules for the administrative settlement of claims against 
the United States submitted by the Active Army, ARNG, and USAR 
personnel, and civilian employees of DOD and DA for damage to or loss 
of personal property incident to their service. This subpart also sets 
forth procedures for the administrative recovery from responsible third 
parties for loss, damage, or destruction of such personal property. The 
underlying Act is a gratuitous payment statute; claims thereunder do 
not sound in tort even though some tort concepts are used in the 
adjudication of claims under this subpart. Further, the Act is not 
designed to make the United States a total insurer of the personal 
property of proper claimants.
    (b) The maximum amount that may be paid for any loss or damage 
arising from a single incident is limited by the Act as amended by Pub. 
L. 100-565, 31 October 1988, to $40,000. The maximum limit of $40,000 
is specifically limited to losses of personal property occurring after 
31 October 1988, and to losses resulting from evacuations or from 
hostile acts directed against the United States or its officers and 
employees. A maximum limit of $25,000 is applicable to losses of 
personnel property occurring after 28 July 1982 and before 1 November 
1988.
    (c) Any claim within the scope of this subpart, which otherwise 
would be cognizable under the MCA and subpart C; the FTCA and subpart 
E; the Act of 9 October 1962 (10 U.S.C. 2737) and subpart E; the NGCA 
and subpart F; the Maritime Claims Settlement Act and subpart H; or the 
FCA and subpart J will first be considered under this subpart.
    (1) If not payable under this subpart, the claim will be considered 
under the other subparts prior to any disapproval. Particular attention 
should be given to the nature of the claim; many alleged ``unusual 
occurrences'' are actually torts, either by employees or by individuals 
in their private capacities. While some incidents may not seem common 
to those experiencing them, an ``unusual occurrence'' is defined as an 
occurrence beyond the normal risk associated with day-to-day living and 
working. An unusual occurrence does not involve a reasonably 
foreseeable consequence of normal human activity. For example, having a 
vehicle hit by a golf ball while driving by a golf course or struck by 
an unknown vehicle in a parking lot is a reasonably foreseeable 
consequence of driving a vehicle.
    (2) If a claim cognizable under this subpart arises from an 
incident resulting in personal injury, no payment or emergency partial 
payment will be made under this subpart until an investigation 
completed in accordance with Secs. 536.19 and 536.20 has been 
conducted. The Commander, USARCS, Chief, Personnel Claims and Recovery 
Division, or the chief of a command claims service may waive this 
requirement. Prior to payment the investigation must establish that the 
incident was not caused by the negligence of the claimant or an agent 
of the claimant. An example of such an incident would be a fire in 
quarters that results in an injury to a soldier's family member and was 
presumably caused by faulty wiring, but might have been caused by the 
claimant's negligence.
    (3) Any claim within the scope of this subpart which is also 
cognizable under Article 139 will first be considered under subpart I. 
If settlement of the Article 139 claim will be unduly protracted, the 
claim may be settled under this subpart and the claimant counseled to 
repay any overpayment if payment is later received under the provisions 
of subpart I.
    (d) Any claim cognizable under this subpart that is primarily the 
result of fault or negligence of a Government contractor other than a 
common carrier or warehouse firm will first be referred to the 
contractor or his or her insurer for settlement in accordance with DA 
Pam 27-162, paragraph 2-6.


Sec. 536.164  Claimants.

    (a) A claim may be presented under this subpart only by--
    (1) A member of the Active Army.
    (2) A member of the USAR or the ARNG who is engaged in inactive 
duty for training or in active duty training.
    (3) A civilian employee of DA; a civilian employee of the ARNG 
funded under 32 U.S.C. 709; a civilian employee of the DOD who is not 
an employee of the Department of the Navy or the Department of the Air 
Force; or a continental wage scale, local wage scale, and other foreign 
national local civilian employees. (See DODD 5515.10.) However, the 
claims of DOD dependent school teachers and Defense Commissary Agency 
civilian employees will be settled by the Service operating the 
installation where that school teacher/Commissary Agency employee is 
employed.
    (4) The authorized agent or legal representative of paragraph (a) 
(1) through (3) of this section. However, any claim presented by a 
claims preparation service or other hired agent must be signed and 
ratified by the proper claimant to preclude assignment of claims, 
regardless of whether the claimant has executed a power of attorney.
    (5) The survivors of paragraph (a) (1) through (3) of this section 
in the following order of precedence:
    (i) Spouse.
    (ii) Child or children.
    (iii) Father or mother, or both.
    (iv) Brothers or sisters, or both.
    (b) A member of another U.S. Armed Force may present a claim to an 
Army claims office for loss of or damage to personal property incident 
to his or her service. Any such claim will be investigated and 
processed short of adjudication under the provisions of this subpart. 
The completed file will contain all required supporting documents, 
including evidence in support of the amount claimed and documents 
facilitating recovery from a carrier, insurer, or other third party. 
Such claims will be forwarded direct to the nearest legal office of the 
service concerned for settlement. However, Marine personnel claims 
should be forwarded directly to the Commandant of the Marine Corps 
(MHP-40), Headquarters, United States Marine Corps, WASH DC 20380-0001.
    (c) Claims of civilian employees of nonappropriated fund activities 
for damage to or loss of personal property incident to their service 
will be processed in accordance with this subpart and subpart L, with 
payment made only from nonappropriated funds.
    (d) Subrogees, assignees, conditional vendors, and similar third 
parties are not proper claimants under this subpart, and their claims 
are barred from payment. Further, claims for losses of subrogees and 
similar third parties are barred from consideration or payment under 
other subparts when the property owner could have presented a 
cognizable claim for loss under the provisions of this subpart.
    (e) Personnel who do not fall within one of the categories listed 
in (a) above (such as Red Cross employees, foreign military personnel, 
United States Organization personnel, or employees of Government 
contractors, including technical representatives) are not proper 
claimants under this subpart and their claims are barred.
    (f) Claimants who are absent without leave (AWOL) will have any 
pending claim denied once they are dropped from the rolls (DFR). The 
denial letter will be mailed to the claimant's last known civilian 
address.


Sec. 536.165   Claims cognizable.

    The following are nonexclusive examples of categories of damage to 
or loss of property that may be considered by claims approval and 
settlement authorities as having been sustained incident to service. 
Note that a loss unconnected with the performance of duty, particularly 
a loss occurring outside of normal duty hours, would often not be 
deemed incident to a civilian employee's service, even though the same 
loss might be deemed incident to a soldier's service. This is 
particularly true if the civilian employee is a local foreign national 
employee. A claims approval or settlement authority will ask the Chief, 
Personnel Claims and Recovery Division, USARCS for an advance opinion 
prior to adjudicating a claim that is deemed incident to service but 
does not fall within one of the following categories:
    (a) Losses in quarters or other authorized places. Damage to or 
loss of property by fire, flood, hurricane, or other unusual 
occurrence, or by theft or vandalism may be considered, while located 
at--
    (1) Quarters, wherever situated, which are assigned to the claimant 
or otherwise provided in kind by the Government.
    (2) Quarters outside the United States, which are occupied ority 
but are neither assigned to the claimant nor otherwise provided in kind 
by the Government. However, a claim is not cognizable when the claimant 
is--
    (i) A civilian employee who is a local inhabitant.
    (ii) A U.S. citizen hired as a civilian employee while residing 
abroad or after moving to a foreign country as part of the household of 
a person who is not a proper party claimant.
    (iii) A family member residing outside the United States while the 
soldier is stationed in a different country.
    (iv) A local inhabitant of a U.S. territory who is in that 
territory at the time of a loss when he or she is in the ARNG either 
Full Time-National Guard Duty (AGR) or on active duty under Title 10, 
or in the USAR on active duty for any reason.
    (3) Any place of lodging wherever situated, such as a hotel, motel, 
guest house, transit billet or other place, when occupied by claimant 
while in the performance of temporary duty or similar authorized 
military assignment of a temporary nature.
    (4) Any warehouse, office, hospital, baggage holding area, or other 
place authorized or apparently authorized by the government for the 
reception or storage of personal property.
    (b) Transportation losses. Damage to or loss of property incident 
to transportation or storage pursuant to orders or in connection with 
travel under orders or in performance of military duty may be 
considered, if not the result of a mechanical or structural defect. 
This includes property in the custody of--
    (1) A common or contract carrier or any other commercial concern, 
either pursuant to a Government Bill of Lading (GBL), Government 
contract, or the commuted rate method (Joint Travel Regulation (JTR) 
Vol II, paragraph C8001(4)). With respect to mobile homes, it is the 
owner's responsibility to place the mobile home and its tires, tubes, 
frame, and other parts in fit condition and to load the mobile home to 
withstand the stress of normal transportation, at his or her own 
expense, prior to shipment.
    (2) An agent or agency of the Government, to include property 
mailed at Government expense in the custody of the U.S. Postal Service.
    (3) The claimant or appropriate personnel while the claimant is 
traveling in a private or public vessel, vehicle, aircraft, or other 
conveyance in performance of military duty.
    (4) The claimant or appropriate personnel while the claimant is 
traveling aboard a military vessel, aircraft, or vehicle in performance 
of military duty or pursuant to orders authorizing travel, including 
travel pursuant to leave orders on a space available basis.
    (c) Losses due to enemy action, evacuation, hostile acts, or public 
service. Damage to or loss of property may be considered which is a 
direct result of--
    (1) Enemy action, or threat thereof; combat, guerrilla, or other 
belligerent activities, whether or not the United States was involved; 
or unjust confiscation by a foreign power or its nationals of property 
belonging to soldiers or U.S. national civilian employees.
    (2) Acts of mob violence, terrorist attacks, or other hostile acts 
directed against the United States or its officers and employees.
    (3) Action by the claimant in an attempt to quiet a civil 
disturbance or alleviate a public disaster.
    (4) Efforts by the claimant to save a human life or Government 
property.
    (5) Evacuation from a foreign country on the recommendation or 
order of competent authority. This subsection provides payment for 
property belonging to soldiers and civilian employees and their 
command-sponsored dependents, with entitlement to shipment at 
Government expense, which is abandoned during an evacuation and not 
recovered, or damaged by an incident of political unrest or hostile act 
prompting or following such evacuation.
    (d) Loss of money delivered to a Government agent. Loss of funds 
neither applied as directed by the owner nor returned may be considered 
when the funds were delivered to and accepted by Government personnel 
authorized or apparently authorized to receive them for such purposes 
as safekeeping; deposit in savings deposit program; transmission by 
personal transfer account; purchase of U.S. bonds or postal money 
orders; or conversion into military payment orders, Government checks, 
or into another kind of currency.
    (e) Vehicle losses. Vehicles are defined to include automobiles, 
motorcycles, mopeds, utility trailers, camping trailers, trucks with 
mounted camper bodies, motor homes, boats, boat trailers, bicycles, and 
aircraft. Mobile homes and other property used as dwelling places are 
not considered vehicles. Damage to or loss of vehicles and property 
properly stored or contained therein may be considered when--
    (1) Used in the performance of military duty, if such use was 
authorized or directed for the convenience of the Government and 
provided--
    (i) The travel did not include commuting to or from the permanent 
place of duty and,
    (ii) The loss or damage did not arise as a result of a mechanical 
or structural failure of the vehicle during such usage.
    (2) Shipped to, from, or between an overseas area or areas at 
Government expense in accordance with paragraph (b) of this section, 
provided the loss or damage did not arise as a result of mechanical or 
structural failure of the vehicle during such shipment.
    (3) Located at quarters or place of lodging as defined in 
paragraphs (a) (1), (2), and (3) of this section, which for the 
purposes of this paragraph includes garages, carports, driveways, 
assigned parking spaces, and lots specifically provided and used for 
the purpose of parking at one's quarters, provided that the loss or 
damage is caused by fire, flood, hurricane, or other unusual 
occurrence, or by theft or vandalism. There is a presumption that 
vehicle theft or vandalism occurs off the military installation and is 
generally not compensable. Claims for theft or vandalism to vehicles 
(including property stored inside a vehicle) are only payable when a 
claimant proves that the theft or vandalism occurred while the vehicle 
was located at his or her authorized or assigned quarters (for example, 
a military police report indicates broken glass from the window is on 
the driveway).
    (4) Located other than at quarters on a military installation, 
provided that the loss or damage is caused by fire, flood, hurricane, 
or other unusual occurrence. The term ``military installation'' is used 
broadly to describe any fixed land area, wherever situated, controlled, 
and used by military activities or the DOD. A vehicle that is properly 
on the installation should be presumed to be incident to the claimant's 
service unless the application of such a presumption would be 
unreasonable under the particular circumstances, such as visiting a 
fellow soldier on another military installation while on leave.
    (f) Clothing and articles being worn. Damage to or loss of clothing 
and articles being worn while on a military installation or in the 
performance of military duty may be considered, provided such loss was 
caused by fire, flood, hurricane, or other unusual occurrence, or by 
theft. Spilling battery acid, paint or similar substances on clothing, 
or breaking eyeglasses during physical training is not an unusual 
occurrence.
    (g) Personal property held as evidence. Deprivation of property 
held as evidence may be considered when after taking all circumstances 
into consideration, the temporary loss of the property will work a 
grave hardship on the claimant who is a victim of a crime.
    (h) On-post robberies. Claims for losses due to theft from the 
person on a military installation by the use of force, violence, or 
threat to do bodily harm may be considered. If cognizable under Article 
139, the claims should be considered under subpart I.


Sec. 536.166   Claims not cognizable.

    The following are examples of types and categories of property 
losses for which compensation will not be allowed:
    (a) Property lost or damaged as a result of claimant's negligence. 
Property damaged or lost, in whole or in part, as a result of any 
negligence or wrongful act of the claimant, the claimant's spouse or 
family member, or any agent or employee of the claimant acting in the 
scope of employment, is not compensable. Negligence may be defined as 
failure to exercise the degree of care that a reasonable and prudent 
person would have exercised under the same circumstances.
    (b) Property damaged or lost while located at quarters within the 
United States that were occupied by the claimant but were neither 
assigned nor otherwise provided in kind by the Government.
    (c) Intangible property. Loss of property that has no extrinsic and 
marketable value but is merely representative or evidence of value, 
such as non-negotiable stock certificates, promissory notes, bonds, 
bills of lading, warehouse receipts, insurance policies, baggage 
checks, and bank books is not compensable. Similarly, a claimant may 
not be compensated for the inability to use nonrefundable tickets or 
recover lease or utility deposits. Loss of a thesis, or other similar 
item, is compensable only to the extent of the out-of-pocket expenses 
incurred by the claimant in preparing the item such as the cost of the 
paper or other materials. No compensation is authorized for the time 
spent by the claimant in its preparation or for supposed literary 
value.
    (d) Incidental expenses and consequential damages. The Act and this 
subpart authorize payment for loss of or damage to personal property 
only. Except as provided in Sec. 536.165, consequential damages or 
other types of loss or incidental expenses (such as loss of use, 
interest, carrying charges, cost of lodging or food while awaiting 
arrival of shipment, attorney fees, telephone calls, cost of 
transporting claimant or family members, inconvenience, time spent in 
preparation of claim, or cost of insurance premiums) are not 
compensable.
    (e) Real property. Damage to real property is not compensable. In 
determining whether an item is considered to be an item of personal 
property, as opposed to real property, normally, any movable item is 
considered personal property even if physically joined to the land.
    (f) Articles acquired or held for sale or disposition by other 
commercial transactions on more than an occasional basis, or for use in 
a private profession or business enterprise.
    (g) Enemy property or war trophies.
    (h) Property acquired, possessed, or transported unlawfully or in 
violation of local law or competent regulations or directives. This 
includes loss or damage to vehicles not properly registered or insured 
in compliance with local law or competent regulations or directives.
    (i) Loss of money in any amount during shipment or storage with 
baggage or household goods. This includes coin collections.
    (j) Property stored at a commercial facility for the convenience of 
the claimant and at his or her expense.
    (k) Substantial fraud. The head of an area claims office may 
completely deny a claim that he determines to be substantially tainted 
by fraud.
    (l) Not a proper claimant. See Secs. 536.164 and 536.165(a)(2).


Sec. 536.167  Time prescribed for filing.

    (a) No claim may be paid under this subpart unless it is presented 
in writing within 2 years after it accrues. A claim is presented when 
it is received at a U.S. military establishment, not when it enters the 
mails. For purposes of this subpart, a claim accrues at the time of the 
incident causing the loss or damage, or at such time as the loss or 
damage is or should have been discovered by the claimant through the 
exercise of due diligence. In the case of multiple deliveries on the 
same Government Bill of Lading, the claim accrues for those later 
received items when they are delivered. The claim filed for the initial 
damage will be amended to reflect the subsequently claimed items. If 
personal property remains in storage after the expiration date of legal 
entitlement to storage at Governmental expense, a claim normally 
accrues on such expiration date.
    (b) If a claim accrues in time of war or armed conflict in which 
the Armed Forces of the United States are engaged, or if such a war or 
armed conflict intervenes within 2 years after the claim accrues, and 
if good cause is shown, then the claim may be presented not later than 
2 years after the war or armed conflict is terminated. A claims office 
may telephonically obtain the authority to grant additional time to 
file a claim, from the Chief, Personnel Claims and Recovery Division. 
If good cause for delay in filing is not established, the intervention 
of war or armed conflict, in itself, will not permit payment of a claim 
presented later than 2 years after accrual. Pursuant to the provisions 
of Pub. L. 96-446 (94 Stat 1967), periods of captivity are excluded in 
computing the 2-year statute of limitations.
    (c) If a proper party claimant is notified that his or her personal 
property in nontemporary storage has sustained partial damage, the 
statute of limitations does not begin to run until the claimant has an 
opportunity to ascertain the extent of the loss, or the claimant's 
entitlement to Government shipment or storage expires, whichever occurs 
sooner. However, the claimant is expected to exercise due diligence in 
attempting to ascertain the extent of the loss. Moreover, when a proper 
party claimant is notified that his or her personal property in 
nontemporary storage at Government expense has sustained complete 
destruction or loss, the statute of limitations begins to run when this 
notification is received.


Sec. 536.168  Form of claim.

    Claims personnel will date-stamp, log in and consider as a 
personnel claim any writing received at a U.S. military establishment 
if it constitutes a demand for compensation for loss of or damage to 
personal property. Claims personnel will not return such writing to the 
claimant without action as ``lacking documentation'' and may only 
consider it abandoned in accordance with Sec. 536.234(a). For claims 
cognizable under this subpart, a demand need not be for a specified sum 
of money. However, the claimant must complete and submit DD Form 1842 
and DD Form 1844 (List of Property and Claim Analysis Chart) as a 
condition precedent to payment of the claim. Claimants will be required 
to complete only one DD Form 1842 and DD Form 1844 and to provide only 
one copy of supporting documentation. A demand on carrier, warehouse 
firm, insurer, or other third party is not considered a claim against 
the United States. Submission of DD Form 1840R (Notice of Loss or 
Damage) to the claims office does not constitute presentment of a 
claim. If, however, a claimant alleges that he or she filed a claim, 
and the evidence shows that within the 2-year period the claimant 
visited a claims office of one of the Armed Forces with an apparent 
desire to obtain compensation, it may be presumed in absence of 
evidence to the contrary, that the claimant, in fact, submitted a 
claim.


Sec. 536.169  Presentation.

    (a) A claim should, if practicable, be submitted in writing to the 
claims office serving the Active Army installation where the claimant 
is stationed or nearest to the point where the loss or damage occurred, 
or where investigation of the facts and circumstances can most 
conveniently be made. ARNG and USAR personnel will not file claims with 
their unit but with the nearest Active Army installation. If submission 
in accordance with the foregoing is impracticable under the 
circumstances, the claim may be submitted in writing to the commander 
for any installation or establishment of the Armed Forces who will 
forward the claim to the appropriate Army claims office for processing. 
To constitute a filing under this regulation, a claim must be presented 
in writing to an agency of one of the military departments other than 
the National Guard or a Reserve Component.
    (b) The claimant is responsible for substantiating ownership or 
possession, the fact of loss or damage, and the value of property, 
especially for expensive items. The claimant is also responsible for 
promptly discovering and reporting loss whenever failure to do so would 
prejudice either effective investigation of the claim or effective 
recovery action from a third party. Failure to do so may result in 
reduction of the amount allowable or denial of the claim in accordance 
with Sec. 536.181(a).

Evaluation, Adjudication, and Settlement of Claims


Sec. 536.170  Policy.

    (a) The prompt, fair disposition of claims of soldiers and 
civilians, consistent with the protection of the interests of the 
Government, is necessary to maintain morale and to prevent financial 
hardship. Claims approval and settlement authorities should exercise 
reasonable discretion in the consideration of claims to achieve this 
goal.
    (b) The small claims procedures (subpart B, small claims) 
applicable to claims that may be settled by payment of $1,000 or less 
without extensive investigation should be used to the maximum extent 
feasible. When this procedure is used, every reasonable effort should 
be made to settle the claim within the shortest possible period, 
usually one working day. However, the small claims procedure should not 
be used when additional investigation is necessary to develop the facts 
required for an informed disposition of the claim regardless of the 
amount claimed.
    (c) Within the DA, personnel claims will not be transferred except 
as authorized by the USARCS or a command claims service. (See DA Pam 
27-162, paragraph 2-55.)
    (d) When it is necessary to disapprove a claim or to allow a sum 
less than the amount claimed, the claimant must be informed either 
orally or in writing of the factual or legal basis for the decision. 
The first must reflect that this explanation was provided to the 
claimant.
    (e) When a claimant refuses to provide information concerning 
private insurance coverage, the JA may assume, in the absence of 
evidence to the contrary, that the claimant had private insurance 
covering the entire loss and disapprove the claim.


Sec. 536.171  Preliminary findings required.

    Prior to allowing or recommending the allowance of compensation for 
the loss, damage, or destruction of property, the approval or 
settlement authority will make the following findings:
    (a) The claimant is a proper party claimant.
    (b) The evidence substantiates the fact of ownership or possession 
of the personal property involved and the fact of loss, damage, or 
destruction as alleged.
    (c) The loss, damage, or destruction of the property involved was 
sustained incident to the claimant's military service or employment.
    (d) The type of property claimed and the amount or quantity claimed 
was reasonable or useful under the attendant circumstances for the 
claimant to have used or possessed incident to military service or 
employment.
    (e) There is no bar to the allowance of compensation of the type of 
property involved, or for the type of loss, damage, or destruction 
providing the basis of the claim.
    (f) The claimant certified that no part of the loss is covered by 
insurance. If private insurance covers any part of the loss, the 
claimant must first settle with the insurance company. See section 
536.181(b)(5). (Coverage under most personal property insurance carried 
by service personnel includes items lost or missing, destroyed, or 
damaged by water while in custody of a public carrier.)


Sec. 536.172  Guides for computing amounts allowable.

    (a) For claims of losses incident to service processed under this 
subpart or subpart L, the Commander, USARCS, will periodically publish 
an allowance List--Depreciation Guide specifying rates of depreciation 
and maximum payments applicable to categories of property. The 
Allowance List--Depreciation Guide will be binding on all Army claims 
personnel. (See section 536.9(f).) For claims for losses incident to 
service processed under this subpart or subpart L, no payment will be 
made on an item or category of items in excess of the maximum payment 
in effect at the time the claim arose, except as provided in section 
536.174(b).
    (b) The Commander, USARCS will promulgate additional guides, 
references, and tables to assist in computing allowable compensation 
under this subpart. (See DA Pam 27-162, chap 2.)


Sec. 536.173  Ownership or custody of property.

    Compensation may be allowed even though the property was not in the 
actual possession of the claimant at the time of the damage or loss. 
Compensation may also be allowed even though the property was not owned 
by the claimant, provided it was lawfully under his or her dominion and 
control. However, compensation will not be allowed for damage or loss 
to personal property transported to accommodate another, other than the 
claimant's family members, nor will compensation for damage or loss to 
a vehicle loaned to a claimant be allowed unless both the claimant and 
the owner are proper party claimants. A vehicle registered in the name 
of the claimant or a spouse is not deemed, as between them, to be 
loaned. When a vehicle is subject to a lien, the vehicle is not deemed 
to be loaned merely because the title is in the name of the lien-
holder.


Sec. 536.174  Determination of compensation.

    (a) A claim may be allowed only for the amount and quantity of 
personal property considered reasonable or useful for the claimant to 
have used or possessed under the attendant circumstances, incident to 
his or her service or employment. In determining the reasonableness or 
utility of types and quantities of property included in a claim 
cognizable under this subpart, an approval or settlement authority will 
give consideration to the claimant's living conditions, family size, 
social obligations, and need to have more than average quantities, as 
well as the circumstances attending acquisition or possession of the 
property and the manner of damage or loss.
    (b) The maximum amounts allowable for specific types and categories 
of personal property listed in The Allowance List--Depreciation Guide 
constitute a determination of amount of quantity deemed reasonable or 
useful. A maximum allowance per item indicates that the allowance for a 
single item of the type or category of property involved will not 
exceed that amount. A maximum allowance per claim indicates that the 
total allowance for all items of the listed type or category is limited 
to that amount. Where both a maximum amount per item and per claim are 
applicable, the total allowance for all items will be limited to the 
maximum per claim, which will reflect the allowance of not more than 
the maximum per item for any individual item. To avoid application of 
these maximum allowances, a soldier or civilian employee may obtain 
additional protection on shipments by requesting full replacement 
protection or increased value protection. The Chief, Personnel Claims 
and Recovery Division, USARCS may waive the maximum in a particular 
case for good cause shown.
    (c) Compensation allowable for an item of personal property will 
not exceed the actual value of the item at the time of its loss, 
damage, or destruction. Guidance on determining the base figure for 
actual value, using replacement costs, estimates, or the Table of 
Adjusted Dollar Value, is provided in DA Pam 27-162, chapter 2. Because 
soldiers are permitted to replace items missing or destroyed during PCS 
moves from the Overseas Post Exchange Catalog, even when ordering from 
this catalog is not otherwise permitted, such items may be valued using 
this catalog.
    (d) In adjusting a base figure to determine actual value, standard 
yearly rates of depreciation have been established for the types and 
categories of items that have generally recognized periods of useful 
life; standard flat rates of depreciation have been established for 
certain kinds of items that decrease in value primarily as the result 
of the fact they are no longer new and unused, but which do not 
continue to depreciate on a yearly basis since they are not subject to 
fixed periods of useful life. (See Allowance List--Depreciation Guide.) 
However, if personal inspection of damaged property indicates that it 
was in better than average condition prior to damage, a lesser rate of 
depreciation should be applied. Similarly, if the evidence indicates 
that an item was in poor condition at time of damage, a higher rate of 
depreciation is appropriate. Variations from the established rates of 
depreciation will be fully explained. The following rules are to be 
observed in computing the depreciation applicable to any item:
    (1) Normally no depreciation is to be charged against goods during 
periods of storage. However, this does not mean that deductions cannot 
be taken for other reasons, such as a reduction in the market value of 
an item because of changes in style or obsolescence.
    (2) Do not depreciate an item which is less than six months old 
(including an item subject to flat rate depreciation) except clothing 
and other rapidly depreciating articles which may be subject to 
considerable use in such a short period of time. Calculate yearly 
depreciation from the date an item is originally acquired to either the 
date of pickup (for shipment or storage claims), or to the date the 
property was lost or damaged (for other personnel claims). If the 
claimant acquired a used item, then the claimant should use either the 
date the original owner acquired the item and the original purchase 
price, or the claimant's purchase price and date he or she purchased 
the item. In accordance with the Allowance List--Depreciation Guide, 
compute yearly depreciation in 12 month increments (e.g., 6-17 months 
equals one year), excluding the month the property was acquired and the 
month that the property was picked up, lost or damaged.
    (3) No item will be depreciated by more than 75 percent.
    (4) No depreciation is charged against genuine antiques, objects of 
art, and collector's items, except for repair of portions thereof, such 
as upholstery, which requires periodic replacement or repair. For the 
purpose of this rule, a ``souvenir'' is not considered a collector's 
item.
    (e) Compensation normally allowed for an item damaged beyond 
economic repair is the actual value at the time of destruction. 
However, if an item has not been totally destroyed and any part remains 
useful and has a salvage value, and that part is to be retained by the 
claimant, the allowance will be the value at time of destruction less 
the ascertained value of the salvageable part. If the claimant does not 
wish to retain any salvageable part of a destroyed item, he or she may 
be allowed the full value at the time of the destruction with no 
deduction for salvage value, provided the claimant turns in the 
salvageable part to the Defense Reutilization and Marketing Office 
prior to payment of the claim or holds the item for turn-in to the 
carrier (see DA Pam 27-162, paragraph 2-44). If the item is turned in 
to the Defense Reutilization and Marketing Office, a receipt for the 
property, DD Form 1348-1 (DOD Single Line Item Release/Receipt 
Document), will be included in the file of the paid claim. If the staff 
or command JA determines that salvageable items are valued at $25.00 or 
less, he or she may advise the claimant to dispose of them other than 
by turn-in and this decision will be noted on the chronology sheet. In 
certain situations it may be necessary for the claims office to assist 
the claimant to arrange for disposition of the property.
    (f) If, after payment of a claim, an approving or settlement 
authority discovers that the payment was erroneous because the claimant 
misrepresented the quality, quantity, age, condition, or replacement or 
repair cost of items, or other facts necessary to the adjudication of 
the claim, the approval or settlement authority may recalculate the 
amount allowed and arrange for recoupment of the erroneous amount paid. 
However, this procedure should be used sparingly, with doubts resolved 
in favor of the claimant. The procedure is independent of any other 
action taken against the claimant.
    (g) In determining allowable amounts, cents will be rounded off to 
the nearest whole dollar on each line item. Drop amounts under 50 cents 
and increase amounts from 50 to 99 cents to the next dollar. Thus, 
$1.49 becomes $1.00 and $2.50 becomes $3.00.


Sec. 536.175  Cognizable incidental expenses.

    (a) Expenses incident to repair or replacement. In addition to 
actual value, the cost of obtaining estimates of repair necessary to 
substantiate amounts claimed for damaged property may be considered, 
provided the action of the claimant in contracting for the estimates 
appears reasonable under the circumstances or was specifically directed 
by the approval or settlement authority. However, when the cost of an 
estimate can be applied toward the bill due upon completion of repairs, 
the cost of the estimate will not be allowed, whether or not the 
claimant chooses to have the repair done.
    (b) Replacement of certain documents. The fee charged for replacing 
certain necessary documents such as marriage licenses, driver's 
licenses, passports, or birth certificates may be allowed when these 
documents are lost or destroyed.
    (c) Sales tax and drayage. Sales tax and drayage (including postage 
or handling charges to mail an item or replacement part) can be allowed 
up to $50 per claim prior to the actual cost being incurred. However, 
payment in excess of $50 will require the claimant to substantiate that 
the cost has been incurred.


Sec. 536.176  Property recovered.

    (a) Before approval. Do not pay claims for missing property if the 
missing property is located before the claim is approved. Only the 
transit related damage will be cognizable. As an exception to this 
rule, compensation may be allowed for necessary items that were missing 
for an unreasonable time after the expected arrival date and were 
replaced by claimant prior to the items being located. Necessary items 
are those that are basic to the operation of a household. If 
compensation is allowed under the above exception, the claimant will 
disclaim in writing further interest and ownership in such items in 
accordance with paragraph (b)(2) of this section.
    (b) After approval. If missing property is located after the claim 
is approved for payment, the claimant will normally be advised of his 
or her option to--
    (1) Accept any or all of the items located and remit the amount 
already allowed for such items to the United States. In certain 
circumstances, the claimant will not have an option: the Chief, 
Personnel Claims and Recovery Division, USARCS or his designee can 
require the claimant to accept any or all of the items and remit the 
amount allowed; or
    (2) Disclaim in writing further interest and ownership in the 
property and retain the amount approved for payment. If, however, the 
approval or settlement authority determines that any of the recovered 
property is substantially different in quality, price, or value from 
the property claimed, the approval or settlement authority may require 
the claimant to return the amount allowed for such property and accept 
the property.


Sec. 536.177  Companion claims.

    When two or more claims arising from the same incident are, by 
reason of differences in amounts within the jurisdiction of different 
approval or settlement authorities, action will be withheld on these 
claims until the authority having jurisdiction over the largest claim 
has determined that the claims arising out of the incident are 
cognizable, unless the claims lesser in amount are clearly cognizable 
and meritorious.


Sec. 536.178  Emergency partial payments.

    (a) Frequently a claimant is in immediate need of funds to replace 
damaged or destroyed property. An emergency partial payment up to 
$2,000 is authorized under the following circumstances:
    (1) A hardship situation exists that can be alleviated by providing 
immediate funds for the repair or replacement of certain property lost 
or damaged; and
    (2) A claim has been presented.
    (3) The approval or settlement authority determines that the claim 
is clearly payable under this subpart, in an amount exceeding the 
amount of the proposed emergency payment.
    (b) The approval or settlement authority can approve an emergency 
partial payment on any claim that meets the above criteria. If the 
adjudicated amount exceeds the approval or settlement authority's 
delegated monetary amount, pay up to the delegated amount (less the 
emergency payment), mark the outside of the file ``PRIORITY'' and 
transfer it with all documentation (to include computer disk, paper 
screen and memorandum of opinion) to the next higher claims authority 
for additional payment.
    (c) Prior to making any emergency payment, the authority approving 
such payment normally will obtain an executed partial acceptance 
agreement from the claimant or his or her representative. Only the 
Chief, Personnel Claims and Recovery Division, USARCS or his designee 
can authorize emergency partial payments above $2,000. The authority 
requesting an emergency partial payment above $2,000 can coordinate 
telephonically with USARCS.


Sec. 536.179  Personnel claims memorandum.

    (a) A personnel claims memorandum of opinion will be included in 
the file of each personnel claim disapproved; forwarded for 
adjudication, disapproval, or reconsideration; or forwarded with a 
recommendation that there be a deviation from the Allowance List or 
other established policy.
    (b) A personnel claims memorandum of opinion will be signed by the 
Claims JA. It will be routed through any intervening settlement 
authority, addressed to the settlement authority who will take final 
action (for example, a disapproval would be addressed to the SJA of an 
area claims office, and a reconsideration would be addressed to the 
Commander, USARCS). The memorandum will be sufficiently detailed to 
explain fully and support the action taken or recommended. (See DA Pam 
27-162, paragraph 2-55I for further instructions.) It will be arranged 
as follows:
    (1) Claimant's name and address.
    (2) Date and place the incident occurred giving rise to the claim.
    (3) Amount of claim, the date it was filed, and the date 
reconsideration was requested.
    (4) Subparts the claims were considered under, and a brief 
description of the incident or of the issues raised by the claimant on 
reconsideration.
    (5) Facts.
    (6) Opinion.
    (7) Recommended action.


Sec. 536.180  Reconsideration.

    A claim will be reconsidered under the conditions listed below. 
Reconsiderations normally require additional investigation and review. 
This additional information will be documented in the file. An approval 
or settlement authority--
    (a) May always reconsider his or her action if the original action 
was in error or is incorrect based on new facts. This may be pursuant 
to either a claimant's oral request for reconsideration or as a result 
of any post-settlement review conducted on the claims file. Note that 
while the original approving or settlement authority may consider a 
claimant's ``oral'' request for reconsideration, claims personnel 
should advise claimants that a higher settlement authority will not act 
on an oral request until the claimant presents it in writing in 
accordance paragraph (b) of this section. The basis for any change will 
be reflected in the file.
    (b) Must reconsider a claim upon the written request of the 
claimant or someone acting on his or her behalf. The claimant must 
clearly state the factual or legal basis for relief. However, the 
reconsideration process must be considered not as an adversarial 
process, but rather as an opportunity for the approval or settlement 
authority to continue a dialogue with the claimant. Every effort should 
be made to develop the claimant's version of the facts. A claim will be 
reconsidered even if a settlement agreement has been executed.
    (1) The original approval or settlement authority will modify the 
original action if he or she determines that the original action was 
incorrect or is incorrect based on new evidence. The basis for any 
change will clearly be reflected in the file.
    (2) A successor or higher approval or settlement authority will 
only modify the original action on the basis of fraud, substantial new 
evidence, mistake (misinterpretation ) of law or regulation, or an 
error in calculation. The basis for any change will clearly be 
reflected in the file.
    (3) An approval or settlement authority can take final action on a 
request for reconsideration if he or she informs the claimant in 
writing that the claimant--
    (i) Is aware of the right to have the file reviewed by USARCS; and
    (ii) Will accept the additional payment as full relief on the 
claim; and
    (iii) Knows that if the offer is not satisfactory, the check will 
still be issued (and can be cashed without prejudicing his or her right 
to reconsideration); and
    (iv) The file will be forwarded to USARCS for final review.
    (4) If the approval or settlement authority does not grant 
additional relief, or the claimant does not wish to accept an 
additional payment as full relief, or the claimant does not respond by 
the suspense date, the JA/claims attorney will issue any offered 
payment and will forward the claim through any intervening area claims 
office or command claims service to USARCS for final action. As an 
exception, the Commander U.S. Army Claims Service, Europe (USACSEUR), 
can take final action on any reconsideration request forwarded there by 
a subordinate office so long as it does not involve approving a waiver 
of a maximum allowance. The Commander, USACSEUR, will include a 
complete copy of the final action and will forward the file to the 
Commander, USARCS.
    (c) The approval or settlement authority should consider 60 days 
from the settlement date a reasonable time to either submit a written 
request for reconsideration or provide an intent to file a 
reconsideration request. The claimant will receive written notification 
of this time limit. Any reconsideration where denial is recommended 
because it was not timely filed will be forwarded according to 
paragraph (b)(4) of this section. The Chief, Personnel Claims and 
Recovery Division may grant relief on untimely requests for 
reconsideration on the basis of substantial new evidence, fraud, 
mistake of law, or mathematical miscalculation. In appropriate 
situations, he may deny relief if the filing delay precluded acquiring 
additional facts.


Sec. 536.181  Judge advocate procedures responsibilities.

    (a) Reductions for inaction. (1) The JA will ensure that, when a 
demand on a carrier or other third party (other than a private insurer 
(see paragraph (a)(2) of this section) is required (see recovery from 
third party) and the claimant's failure, absent good cause, to provide 
notice or perform other required actions materially prejudices 
effective recovery action with respect to all or part of the loss, the 
amount otherwise allowable under this subpart will be reduced by the 
amount of the anticipated recovery so affected on an item-by-item 
basis.
    (2) When a claimant fails to provide timely notice to perfect a 
claim against his or her private insurer, the amount allowed, absent 
good cause, the claim will be denied. In determining whether a claimant 
has good cause for failing to provide timely notice to a private 
insurer, the JA will, in addition to the considerations in paragraph 
(a)(3) of this section, determine whether the claimant (or agent) had 
knowledge of the requirement and willfully neglected to provide notice. 
See Sec. 536.170(f) for cases where a claimant refuses to provide 
information concerning private insurance.
    (3) Good cause is determined as follows:
    (i) When a claimant fails to provide timely notice to a carrier, 
warehouse firm, or private insurer, settlement and approval authorities 
may waive reduction action for good cause only when one of the 
following circumstances directly contributed to the claimant's failure 
to give timely notice:
    (A) Officially recognized absence (for example TDY and off post 
training exercises) resulting in claimant's absence from official duty 
station for a significant portion of the notice period;
    (B) Hospitalization of claimant for a significant portion of the 
notice period; or
    (C) Substantiated misinformation concerning notice requirements 
given to the claimant by government personnel.
    (ii) Requests for good cause waivers under circumstances other than 
those in paragraph (a) of this section may be granted only be the 
Commander, USARCS, or designee.
    (4) Prior to taking reduction action, the JA will ensure the 
claimant is provided an opportunity to explain the circumstances of his 
or her failure to take appropriate action, and that the claim file is 
documented to show the claimant was afforded this opportunity and the 
result provided. The chronology sheet in the file will contain an 
explanation of the JA's decision regarding reduction or the lack 
thereof.
    (b) Information and assistance to claimants. Claims personnel 
will--
    (1) Furnish the necessary claims forms (DD Form 1842 and DD Form 
1844) to any individual who indicates, in person or by letter, that he 
or she desires to be compensated for loss or damage to personal 
property incident to service.
    (2) Furnish instructions and advice as to the evidence required to 
substantiate the claim, assist in the completion of claim forms, and 
help with the procurement of evidence in support of the loss and the 
amount claimed.
    (3) Assure that the description of the items and the damage shown 
on DD Form 1844 are sufficiently detailed to permit verification of the 
purchase price and replacement price or repair cost of the item 
claimed.
    (4) Inform a claimant of the time limits within which a claim must 
be filed in order to considered.
    (5) Inform all claimants that they must file and settle with their 
private insurance companies before the JA/claims attorney will approve 
a claim for payment under this subpart. Claimants who state they have 
no insurance will be asked to certify that fact and the written 
statement will be included in the claim file. The claimant will be 
required to submit proof of final action by the insurer. Claims 
personnel will examine each claim after an insurance settlement and 
determine if prior settlement by the insurer (including excess 
valuation coverage) is more advantageous to the claimant. A claims JA/
attorney may decide to approve a claim for payment under this subpart 
without a claimant first settling with his or her insurance in 
exceptional cases where an insurance company improperly refuses to pay 
a claim or the JA determines the claimant has good cause (see 
Sec. 536.181(a) (2) and (3).
    (6) Advise a claimant to notify the JA of any offer of settlement 
or denial of liability by any third party, and to secure the JA's 
written consent before executing a release or acceptance of any such 
offer.
    (7) Take an active and continuing role in publicizing claims 
information to soldiers and their families.
    (c) Other actions. The JA will ensure that--
    (1) DD Form 1840R is dispatched to the appropriate third party 
within 75 days of delivery of goods, that a copy of the DD Form 1840 
and 1840R is dispatched to the destination transportation office, in 
appropriate cases, and that a signed and dated copy is maintained and 
incorporated into any claim filed. (See DA Pam 27-162, paragraph 2-55.)
    (2) The servicing transportation office is directed to inspect 
damaged property in appropriate cases. (See DA Pam 27-162, paragraph 2-
41).
    (3) The DD Form 1844 is completed (amount allowed column, remarks 
column, and where appropriate, either or both columns for exceptions) 
prior to settling the claim.
    (4) All documents written in a foreign language are translated into 
English, either verbatim or in summarized form.
    (5) Unearned freight charges are deducted for property which 
carriers lose or irreparably damage. (See DA Pam 27-162, paragraph 3-
27.)
    (6) A claims office representative will periodically attend local 
transportation office outbound briefings to ensure that appropriate 
information is being disseminated to soldiers.
    (7) Inspection by claims office personnel are conducted in 
appropriate cases (large claim, reconsideration, fraudulent claim) and 
incorporated into the file.
    (d) Financial. The JA will properly manage claims funds. This 
includes--
    (1) On a monthly basis, reconcile recovery accounts with the 
servicing finance and accounting office (FAO) to insure moneys are 
being properly deposited into the correct account;
    (2) On a monthly basis, reconcile expenditure accounts with the 
servicing FAO to ensure that FAO expenditures match claims office 
expenditures; and
    (3) Ensuring expenditures are from current fiscal year accounts.


Sec. 536.182  Finality of settlement.

    Except as provided in Sec. 536.180(b), the settlement of a claim is 
final and conclusive for all purposes (31 U.S.C. 3721(k)).

Recovery From Third Party


Sec. 536.183  Scope.

    (a) The Army Carrier Recovery Program involves the supervising and 
pursuing of administrative settlements of all claims in favor of the 
Government against third parties arising from claims settled under the 
preceding sections of this subpart. The Program includes making and 
issuing policies, procedures, and instructions pertaining to recovery 
action.
    (b) The term third parties as used in this section, refers to all 
types of contractors, carriers, and insurers of personal property.


Sec. 536.184  Duties and responsibilities.

    (a) Field claims approval and settlement authorities are 
responsible for local implementation of the Army Carrier Recovery 
Program and will ensure that--
    (1) Proper notice is provided to third parties (see DA Pam 27162, 
paragraph 2-55).
    (2) Claims are processed so that relevant time limitations on 
pursuing recovery demands are met, particularly the 6-year statute of 
limitations set forth in 28 U.S.C. 2415(a). In overseas areas, statute 
of limitations relevant to locally procured tenders and contracts will 
be observed.
    (3) Servicing transportation offices provide supporting 
documentation and perform necessary inspections in a timely manner.
    (4) Claims files include complete, legible documentation needed to 
support recovery action, including a copy of the itemized breakdown 
prepared by the claimant's insurer when appropriate.
    (5) Third party liability is correctly calculated in accordance 
with DA Pam 27-162, chapter 3, and is reflected on all copies of the DD 
Form, 1844.
    (6) Written demands for reimbursement are prepared against 
appropriate third parties, and demands are dispatched locally or 
forwarded for centralized recovery within 30 days of settlement (see 
Sec. 536.196). If this 30-day standard is not met or no demand is 
prepared because liability will not be pursued, claims personnel will 
explain the basis for this on the claims chronology sheet. Note, 
however, that files will not be forwarded for centralized recovery 
prior to the 21st day after settlement in order to afford the claimant 
an opportunity to request reconsideration.
    (7) Unearned freight letters are prepared when required by DA Pam 
27-162, paragraph 3-27, and are either included in files forwarded for 
centralized recovery or are dispatched locally after settlement with 
the carrier.
    (8) Settlement offers from third parties are accepted or rejected 
within 30 days of receipt.
    (9) Checks received are kept in a locked container in accordance 
with AR 37-103, and are hand-carried to the servicing finance and 
accounting office within 24 hours of acceptance.
    (10) Claims files for which a third party fails to satisfy its 
liability are forwarded to USARCS or to contracting officers for offset 
as appropriate (see DA Pam 27-162, paragraph 3-26).
    (11) Include demand packets for all claim files forwarded to USARCS 
due to incidents of bankruptcies.
    (b) The Commander, USARCS, is responsible for the general 
administration of the Army Carrier Recovery Program and for the Army 
Centralized Recovery Program. The Commander, USARCS, will ensure that 
field claims offices comply with paragraph (a) of this section, and 
will also ensure that--
    (1) Demands for reimbursement received for centralized recovery are 
reviewed for correctness and dispatched within 7 days of receipt.
    (2) Within 30 days of receipt, checks matched to files are accepted 
and hand-carried to the servicing finance and accounting office (within 
24 hours of acceptance) or are rejected and returned to the third 
party.
    (3) Checks which cannot be matched to files are recorded and kept 
in a locked cabinet in accordance with AR 37-103.
    (4) Unearned freight letters are dispatched after settlement with 
the carrier.
    (5) Offset action, or other collection action as appropriate, is 
initiated against any carrier or other third party that fails to 
satisfy its liability.
    (6) Field claims offices are promptly directed to forward files of 
bankrupt third parties to USARCS to protect the Government's interests.
    (7) Records are maintained of nontemporary storage contractors who 
default on their contractual obligations, and of incidents that occur 
in nontemporary storage warehouses, in order to pursue liability as 
appropriate.
    (c) The Chief, U.S. Army Claims Service, Europe, and the Chief, 
U.S. Armed Forces Claims Service, Korea, will--
    (1) Assume the responsibilities outlined in paragraphs (b)(1) 
through (b)(5) of this section on claims forwarded for European or 
Korean centralized recovery (see DA Pam 27-162, paragraph 3-22), except 
that offset actions requiring action by DFAS will be forwarded to 
USARCS.
    (2) Review each POV shipment file forwarded for recovery action 
against the European inland carrier for potential liability within 45 
days of receipt. If negotiations with a POV contractor result in an 
impasse, USACSEUR will arrange for dispatch of a contracting officer's 
final decision within 30 days.


Sec. 536.185  Determination of liability.

    A prima facie case against a third party is established when 
evidence shows delivery of an item in good condition to the third 
party, return of the items in a damaged condition or non-return, and 
the amount of damage or loss.


Sec. 536.186  Exclusions of liability.

    The third party is not always held responsible even though a prima 
facie case is established. The burden of proof will be on the third 
party to show that loss or damage was caused by one of the excepted 
conditions that relieves it of liability. The following exceptions 
emphasize or add to conditions stated in the various third party rate 
tenders:
    (a) Inherent vice of the article. To be used as an exclusion of 
liability, the third party must establish not just the general tendency 
of an item to be damaged in transit, but that the damage was due solely 
to that propensity.
    (b) Infestations by mollusks, arachnids, crustaceans, parasites, or 
other types of pests, fumigation, or decontamination when not the fault 
of the third party.
    (c) Preexisting damage indicated on the inventory.
    (d) Mechanical failure of an appliance unless there is evidence of 
external damage or unless it can be clearly shown that the mechanical 
failure was caused by the third party.
    (e) Loss or damage that occurs while the shipment was in the 
custody and/or control of the Government.
    (f) Any item for which timely notice has not been provided to the 
third party.
    (g) Any loss or damage not presented to the third party within the 
6 year statute of limitations for filing claims.


Sec. 536.187  Limits of liability.

    (a) Carriers. (1) Liability of Through Government Bill of Lading 
(TGBL) or International Through Government Bill of Lading (ITGBL) 
carriers for household goods shipments is as stated on the GBL. The 
TGBL carrier may be liable for the full depreciated value of the claim 
or the current replacement cost of items, without application of 
depreciation, if the owner purchased replacement cost protection (RCP), 
also known as ``full replacement protection''. (See DA Pam 27-162, 
paragraph 2-51.) For the purpose of computing weight, each piece or 
package shipped constitutes one article. Any article taken apart or 
``knocked down'' for handling constitutes one article. Individual 
article weights are listed in the Joint Military-Industry Table of 
Weights in DA Pam 27-162, Table G-1.
    (2) Liability of ITGBL carriers for hold baggage shipments (Codes 
7, 8, and J) is normally 60 cents per pound times the gross weight per 
container (or current contract liability). Excess valuation or RCP is 
not available on such shipments. (See DA Pam 27-162, paragraph 3-11.)
    (3) Liability of domestic freight carriers of household goods 
shipments is generally stated to be 10 cents per pound per article on 
the GBL. Excess valuation or RCP is not available on such shipments. 
For the purpose of computing weight under this type of shipment, each 
packed item (such as a dish) constitutes one item or article. (Also see 
DA Pam 27-162, paragraph 3-15.)
    (4) Liability of commercial airlines is stated on the GBL. Excess 
valuation or RCP is not available on such shipments. (See DA Pam 27-
162, paragraph 3-17.)
    (b) Nontemporary storage (NTS) contractors. The contract for 
storage of household goods is the Basic Ordering Agreement, which is 
governed by DOD 4500.34-R, chapter 2-1. Under this agreement (DOD 
4500.34-R, appendix H), an NTS contractor is liable for a maximum of 
$50.00 per inventory line item. (As an exception to this rule, 
regardless of the way a schrank is listed on the inventory, only one 
charge of $50.00 can be applied when liability is calculated.) The 
contractor may be liable to the full extent of the declared value if 
the owner purchased an insurance policy from the warehouse firm. No 
liability can be pursued against the NTS contractor when goods are 
given out to a carrier unless an exception sheet was prepared by the 
carrier showing any differences as to shortages or overages or the 
condition of items. The exception sheet must be signed and dated by a 
representative of the warehouse to be valid.
    (c) Packing and containerization contractors. A local contractor is 
liable for loss or damage in the amount of 60 cents per pound (or 
current contract liability) times the weight per article as stated in 
the liability clause of the contract. Each shipping piece or package 
constitutes one article. Excess valuation or RCP is not available on 
such shipments.
    (d) Mobile home carriers. Liability is governed by the applicable 
rate tariff, rate tender, declared valuation, or personal property 
government bill of lading (PPGBL) as stated in DOD 4500.34-R, appendix 
E, and generally is the full cost of repairs for damage incurred during 
transit. In addition to the exclusions listed in paragraph 11-26, a 
mobile home carrier is excused from liability when the carrier has 
introduced substantial proof that a latent structural defect (one not 
detectable during the carrier's preliminary inspection) caused the loss 
or damage.
    (e) Liability limit. Except for claims involving mobile home 
carriers, excess valuation or RCP, the liability of any third party is 
limited to the lease amount of the following:
    (1) Weight liability or NTS inventory line item maximum.
    (2) Amount paid by DA.
    (3) Depreciated value of an item (if the third party bases an offer 
of settlement on the Joint Military/Industry Depreciation Guide in DA 
Pam 27-162, appendix G, Table G-2.)


Sec. 536.188  Settlement procedures in recovery actions.

    (a) Offers of settlement. An offer of settlement or tender of 
payment from a third party should be carefully examined giving due 
regard to all factors involved. When such consideration shows the offer 
or tender to be appropriate, it may be accepted. When the offer or 
tender does not appear appropriate, further correspondence should be 
initiated with the third party to clarify the issues.
    (b) Prior acceptance of settlement by owner. DA is not bound by the 
owner's acceptance of a settlement from a third party where the 
acceptance was procured through fraud, duress, collusion, mistake of 
fact, or misrepresentation. In such circumstances, when a claim is 
filed, all correspondence with the third party must be included in the 
file and further recovery action should be taken where the prior 
settlement is inadequate.
    (c) Establishment of timely notice. (1) Handled by one third party 
only. Where one third party had responsibility for the shipment from 
pickup to delivery, written exceptions on DD Form 1840 (Notice of Loss 
or Damage) is evidence that items in the shipment were lost or damaged 
when delivered. However, a clear delivery receipt (DD Form 1840) is 
only prima facie evidence of good delivery and may be rebutted by 
submission of DD Form 1840R, listing all later discovered loss or 
damage. The DD Form 1840R must be dispatched with 75 days of delivery; 
the date of dispatch is the controlling date. However, the normal 75-
day limit for reporting additional damage on DD Form 1840R may be 
extended by the claimant's hospitalization or officially recognized 
absence under the Joint Military-Industry Agreement on Loss and Damage 
Rules (DA Pam 27-162, appendix E, sec. II). Implementation dates for 
the use of this form and details regarding its use are found in DNA Pam 
27-162, paragraph 3-4. On claims for household goods delivered prior to 
these implementation dates, timely notice is established by exceptions 
noted at delivery on D Form 619-1 (Statement of Accessorial Services 
Performed), or on the inventory if dated and signed by a representative 
of the third party. Timely notice also includes DD Form 1840, or a 
letter or other document noting loss or damage dispatched to the third 
party within 45 days of delivery.
    (2) Handled by two or more third parties. Each time custody of the 
property changes hands, the inventory will be annotated to show any 
overage, shortage, and damage found. In the case of pickup by a carrier 
from a NTS contractor, an exception sheet must be prepared and be 
acknowledged by the warehouse firm to reflect any changes in the 
condition of the goods.


Sec. 536.189  Payment to the claimant beyond the statutory limit.

    When payment of the statutory limit is made on a claim determined 
to be meritorious in a greater amount after the application of 
individual and category maximum allowances, USARCS will apply amounts 
recovered from a carrier or contractor to compensate the claimant to 
the extent of the difference between the statutory limit and the amount 
that would have been paid but for the statutory limit. However, when an 
insurer has paid any portion of the value of the items involved, USARCS 
will apply the procedure in Sec. 536.190(b). Any additional recovery 
monies available will be paid out under 536.190(b), if applicable.


Sec. 536.190  Reimbursements to claimants and insurers from money 
received.

    USARCS is responsible for pursuing recovery on all claims paid 
under this subpart that involve payment of the statutory limit, 
increased released valuation purchased by the member, replacement cost 
protection, and/or private insurance. When forwarding these files to 
USARCS, the field office should identify them by writing in red on the 
front upper left corner of the file, ``IRV,'' ``RCP,'' or ``STATUTORY 
LIMIT.''
    (a) Reimbursement to a claimant. Only USARCS may reimburse 
claimants on files which are required to be forwarded to USARCS for 
centralized recovery. In cases where a JA/claims attorney allowed 
payment of a claim before settling with private insurance, a command 
claims service, area claims office, or claims processing office with 
approval authority may always make a supplemental payment to a claimant 
when the claimant's private insurer paid more on an item than did the 
Government. If a claimant has not been fully compensated, he or she can 
receive a supplemental payment up to the adjudicated value of the 
claimant's loss under the following circumstances:
    (1) When the adjudicated value of the loss on an item exceeds an 
item or category maximum and the amount collected exceeds the amount 
paid on the claim, the claimant will be paid the adjudicated value to 
the extent that the amount recovered exceeds the amount paid.
    (2) When the adjudicated value of the loss on an item exceeds an 
item or category maximum and the claimant has purchased increased 
valuation protection or other depreciated value coverage, the claimant 
will be paid up to the amount of the additional coverage to the extent 
that this does not exceed the adjudicated value on that item or 
category.
    (3) When the value of the loss on an item exceeds DA's payment and 
the claimant has purchased RCP, the claimant will be paid up to the 
amount of the additional coverage to the extent that this does not 
exceed the value determined for that item.
    (b) Reimbursement to insurers by USARCS only. When a claimant has 
purchased an insurance policy covering the shipmentor storage of 
property and the insurance company pays any portion of the value of 
items lost or damaged, the insurance company is entitled, to the extent 
of its payment, to reimbursement of a pro rata share of the amount 
recovered on such items.
    (c) Reimbursement of recovery money to a carrier, warehouse or 
contractor. If a claims office or contracting office determines that 
recovery or offset against a carrier, contractor or warehouse was 
improper, the claims office will forward a request (with appropriate 
justification) to the Chief, Personnel Claims and Recovery Division, 
USARCS, who will authorize a refund as necessary.


Sec. 536.191  Recovery action against a claimant.

    A claimant is entitled to the benefit of any additional coverage 
purchased (such as private insurance, excess valuation, or RCP) on an 
item-by-item basis as described in DA Pam 27-162, paragraph 2-50. If a 
claimant is compensated by a third party on an item and is also 
compensated by DA pursuant to this subpart, the claimant is entitled to 
retain only the portion of the payment that represents the total 
adjudicated value of the item, without regard to a limitation on 
payment due to application of a maximum allowance. If a claimant is 
compensated twice and the total exceeds the amount the claimant is 
entitled to retain, prompt action to recover the excess will be taken 
in accordance with DA Pam 27-162, paragraph 2-55m.


Sec. 536.192  Claims arising from packing and containerization contract 
shipments.

    Field claims offices will process to completion recovery actions on 
all packing and containerization contract shipments against the 
delivering contractor unless private insurance is involved. (See 
Sec. 536.190.)


Sec. 536.193  Claims caused by stevedoring contractors.

    (a) The ``Liability and Insurance'' clause used in stevedoring and 
related services contracts provides in pertinent part that the 
contractor is liable to the Government for loss or damage to personal 
property (including POV's), caused in whole or in part, by his or her 
negligence or fault and that the amount determined by the contracting 
officer will be withheld from payments otherwise due the contractor.
    (b) Claims offices processing claims against the Government under 
this paragraph for loss, damage, or destruction of personal property of 
any kind (including POV's) caused in whole or in part by the negligence 
of a contractor will, when final recovery action is complete, forward 
the claim file directly to the Commander, USARCS. Claims offices 
processing a claim involving a POV will obtain an affirmative statement 
from the claimant as to whether settlement is also being processed 
directly with the contractor or has already been received from the 
contractor. Normally, a settlement with the contractor bars further 
claim against the Government. (But see Sec. 536.186(b).) The procedures 
for processing POV recovery actions against stevedores are in 
Sec. 536.195.


Sec. 536.194  Claims arising from intra-theater shipments.

    Unless private insurance or payment of the statutory limit is 
involved (see Sec. 536.190)--
    (a) Recovery action under a European intra-theater tender or a 
delivering direct procurement method contract will be assembled and 
forwarded to U.S. Army Claims Service, Europe, APO AE 09166-5346.
    (b) Recovery action under a Korean intra-theater tender or a 
delivering direct procurement method contract will be assembled and 
forwarded to U.S. Armed Forces Claims Service, Korea, APO SF 96301 AP 
96205-0084.
    (c) Other recovery action against a delivering third party not 
involving shipment under a Through Government Bill of Lading will be 
processed by the field claims office to completion in accordance with 
DA Pam 27-162, chapter 3.


Sec. 536.195  Claims against ocean carriers.

    No demand will be made directly on an ocean carrier operating under 
a Military Sealift Command contract by individual claimants or by field 
claims offices.
    (a) POVs.
    (1) Payment less than $100. A POV shipment file will be closed and 
no recovery action taken when the amount paid for the damage is less 
than $100. However any file involving loss of items from vehicles will 
continue to be processed regardless of the amount paid.
    (2) Payment from $100-$1,999. For POV claims paid for any amount 
between $100 and $1,999, and if there is evidence of ocean carrier 
liability, the entire claim file will be forwarded to Military Sealift 
Command, Atlantic, by transmittal letter prepared in the format shown 
in DA Pam 27-162, figure 3-18. However, if there is evidence of 
liability attributable to the inland shipment of POVs in Europe, the 
entire claim file will instead be forwarded to the U.S. Army Claims 
Service, Europe, ATTN: AEUTN-PCR, APO AE 09166-5346.
    (3) Payment $2,000 or more.
    (i) Non-European claims offices. If the amount paid on a POV 
shipment claim is $2,000 or more, or if it appears that the POV was 
dropped or was mishandled severely in shipment, claims personnel will 
prioritize recovery action and handle the larger claims first. Claims 
personnel will--
    (A) Assert a demand against the responsible contractor if an 
outport contractor, stevedore, or inland transporter damaged the 
vehicle; or
    (B) Forward the claim to USACSEUR for recovery if the damage 
occurred while the POV was in the custody of a European outport, 
stevedore, or inland shipment contractor; or
    (C) Close the file and forward it for retirement if the POV was 
damaged while in the custody of government personnel; or
    (D) Forward the claim to the Military Sealift Command if the damage 
occurred while the vehicle was in the custody of the ocean carrier 
(ship) or if claims personnel cannot determine where the damage 
occurred.
    (ii) European claims offices. If the amount paid on a POV shipment 
claim is $2,000 or more, claims personnel will prioritize assembly of 
the file and will forward it to USACSEUR for recovery action 21 days 
after the claim is paid.
    (b) Personal property other than vehicles (for example, household 
goods). After payment of a claim involving personal property other than 
POV's, the entire claim file will be forwarded, in duplicate, directly 
to the Commander, USARCS, for recovery action as appropriate.


Sec. 536.196  Centralized recovery program procedures.

    After settlement of a claim under this subpart (including direct 
procurement method (DPM) or intra-theater shipments (only if private 
insurance is involved), and all mobile home claims), requiring 
centralized recovery processing as determined by the Commander, USARCS, 
the office paying the claim will forward the file to USARCS within 30 
days. (See also Sec. 536.184(a).) All such claims where recovery action 
is anticipated will include legible documentation and will be assembled 
as described below.
    (a) The following documents will be affixed to the left inside 
cover (opposite the side bearing complete name and file number of 
claimant) in descending order:
    (1) First. An unsealed envelope addressed to the appropriate third 
party along with the demand packet which should include the following 
documents:
    (i) Original DD Form 1843 (Demand on Carrier/Contractor). (See DA 
Pam 27-162, paragraph 3-20).
    (ii) Copy of DD Form 1164 (Service Order for Personal Property) if 
applicable.
    (iii) Copy of DD Form 1844. (See DA Pam 27-162, paragraph 3-19.)
    (iv) Copy of DD Form 1841 (Government Inspection Report) if 
available.
    (v) Copies of all repair estimates.
    (vi) Copies of all other supporting documents deemed appropriate.
    (vii) Copy of DD Form 1840/1840R.
    (2) Second. If applicable, an unearned freight packet consisting of 
the original letter requesting deduction of unearned freight charges 
with a copy of the GBL, DD Form 1843, and DD Form 1844 attached 
thereto.
    (3) Third. Copy of DD Form 1843.
    (4) Fourth. If applicable, GBL and/or DD Form 1164.
    (5) Fifth. Documents of timely notice as described in 
Sec. 536.188(c).
    (6) Sixth. DD Form 1844.
    (7) Seventh. If applicable, DD Form 1841.
    (8) Eighth. Repair estimates, paid bills, replacement costs, 
appraisals, and so forth.
    (9) Ninth. Any other documents appropriate to support the claim 
against the third party.
    (10) Tenth. Locally approved or adopted chronology sheets will be 
the last document attached to the left inside cover of the file.
    (b) The following documents will be affixed to the right inside 
cover in descending order:
    (1) First. All remaining copies of the DA Form 3 (Individual Claims 
Data Report) (except the organizational file copy retained by the 
forwarding claims office), or a print-out of the automated Individual 
Claims Report, as applicable.
    (2) Second. A copy of the letter to USAFAC requesting deduction of 
unearned freight charges, if applicable.
    (3) Third. Certified copy of the voucher from the servicing finance 
and accounting office, showing the amount paid the claimant.
    (4) Fourth. DD Form 1842.
    (5) Fifth. If applicable, paperwork regarding private insurance 
settlements.
    (6) Sixth. All inventories.
    (7) Seventh. All other documents, such as request for exception 
sheet, orders, turn-in slips, witness statements, and correspondence.
    (c) See DA Pam 27-162, paragraph 3-21, for further guidance.


Sec. 536.197  Offset actions.

    (a) Offset actions against GBL carriers. Only USARCS may process 
offset actions against GBL carriers. (See DA Pam 27-162, paragraph 3-
26.)
    (b) Offset actions against NTS contractors. When an NTS contractor 
is liable and a satisfactory settlement cannot be reached, the claims 
office will forward the file to the Regional Storage Management Office 
(RSMO) responsible for administering the Basic Ordering Agreements for 
storage in that geographic area. (See DA Pam 27-162, paragraph 3-26.)
    (c) Offset against packing and containerization contractors. When 
any claims office determines that a packing and crating contractor is 
liable and a satisfactory settlement cannot be made, a copy of the 
complete claim file will be forwarded by letter to the local 
contracting office administering the contract, requesting offset 
action. The contracting officer will conduct a careful review of the 
claim file and will make a determination on the issue of contractual 
liability on the information contained in the file and on personal 
findings of fact in accordance with the contract involved. (Also see DA 
Pam 27-162, paragraph 3-26.)
    (d) Title 4 CFR 102.3(b)(2) affords a carrier or contractor certain 
procedural rights prior to offset. A JA/claims attorney will certify to 
the contracting office that the Army has complied with 4 CFR 102.3 if 
requested to do so. The JA/claims attorney will give the carrier/
contractor:
    (1) Written notice of the nature and amount of the debt, and the 
agency's intention to collect by offset if the debt isn't paid. The DD 
Form 1843 or demand letter provides this notice.
    (2) The opportunity to inspect and copy agency records pertaining 
to the debt if requested.
    (3) The opportunity to obtain review within the agency if the 
carrier/contractor requests this. If requested, the JA/claims attorney 
will review the file prior to offset. No oral hearing is required.
    (4) The opportunity to enter into a written agreement with the 
agency to repay the debt. A carrier/contractor will normally be allowed 
45 days to follow up a settlement offer with a check. If a satisfactory 
check is not received within the 45 days, the JA/claims attorney should 
offset the carrier/contractor without delay.
    (e) In accordance with 4 CFR 102.3(b)(5), the head of an area 
claims office or claims processing office may effect offset prior to 
completion of any or all of the procedures in paragraph (d) above if 
failure to promptly offset would substantially prejudice the 
Government's ability to collect the debt.


Sec. 536.198  Compromise or termination of recovery actions.

    Subject to the limitations contained in this subpart, the 
Commander, USARCS, is delegated authority to compromise or determine 
collection action on claims against third parties in accordance with 
the provisions of 31 U.S.C. 3711.


Sec. 536.199  Terms and abbreviations.

    Definitions of terms and a glossary of abbreviations frequently 
used in recovery actions are in DOD 4500.34-R, in the definitions 
section, beginning at page XXXIV.


Sec. 536.200  Required references.

    Each claim office will maintain copies of the following references 
for recovery purposes:
    (a) DA Pam 27-162.
    (b) Personal Property Traffic Management Regulation (DOD 4500.34-
R).
    (c) Domestic and mobile home personal property carrier approvals.
    (d) ITGBL personal property carrier approvals by area/code.
    (e) Local packing and containerization contracts.

Subpart L--Nonappropriated Fund (NAF) Claims

Claims Against NAF Activities


Sec. 536.201  General.

    This subpart sets forth the procedures to be followed in the 
settlement and payment of claims by employees of nonappropriated fund 
activities for the loss of or damage to personal property incident to 
their employment, and for claims generated by the acts or omissions of 
the employees of such funds.


Sec. 536.202  Claims by employees for losses incident to employment.

    Claims by employees for the loss of or damage to personal property 
incident to employment will be processed in the manner prescribed by 
subpart K and will be paid from nonappropriated funds in accordance 
with Sec. 536.207.


Sec. 536.203  Claims generated by the acts or omissions of employees.

    (a) Processing. Claims arising out of acts or omissions of 
employees of nonappropriated funds activities will be processed and 
settled in the manner specified for similar claims against the United 
States except that payment will be made from nonappropriated funds in 
accordance with AR 215-1, and Sec. 536.207. Relevant procedural 
requirements of pertinent subparts of this part, as stated below, will 
be followed except as provided in Secs. 536.206 and 536.207. However, 
when the NAFI is protected by a commercial insurer, for example, flying 
and parachute clubs, the claim will be referred to the insurer as 
outlined in paragraph (e) of this section.
    (1) Claims arising within the United States, its territories, 
commonwealths, or possessions. Such claims will be processed in the 
manner prescribed by subparts C, D or E as appropriate.
    (2) Claims arising outside the United States, its territories, 
commonwealths, or possessions. Such claims will be processed in 
accordance with the provisions of applicable SOFA or in the manner 
prescribed by subparts C, D or E as appropriate.
    (b) Reporting and investigation. Such claims will be investigated 
in accordance with subpart B of this part and AR 215-1.
    (1) Reporting. All incidents involving personal injury, death, or 
property damage resulting from falls, falling objects, or accidents of 
like nature, occurring in post exchanges, bowling lanes, officers and 
noncommissioned officers open messes, or other facilities located on 
land or situated in a building used by an activity of the DA that 
employs personnel compensated from nonappropriated funds, should be 
reported immediately to the officer in charge of the nonappropriated 
fund activity concerned. The report should be made by the employee who 
initially received notice of the incident, regardless of the fact that 
the individual involved denies sustaining personal injury or property 
damage. Upon receipt of the report of the incident, the officer in 
charge of the nonappropriated fund activity concerned will transmit the 
report to the installation or other appropriate claims officer for 
investigation.
    (2) Investigation. (i) As soon as practicable in the investigation 
of a claim generated by a nonappropriated fund activity, a 
determination will be made as to whether the claim is cognizable under 
this section.
    (ii) Claim files that relate to claims determined to be cognizable 
under this section will be marked with the symbol ``NAF'' immediately 
following the claimant's name to preclude erroneous payment from 
appropriated funds. This symbol will also be included in the subject 
line of all correspondence.
    (iii) Claims exceeding $15,000. When a claims approval or 
settlement authority receives a claim against a nonappropriated fund 
activity, other than the Army and Air Force Exchange Service (AAFES), 
that exceeds $15,000, he or she will forward a copy to both USARCS and 
the Army Central Insurance Fund, HQDA, ATTN: CFSC-RM-I, Room 1240, 2461 
Eisenhower Avenue, Alexandria, VA 22331-0508. A copy of all tort claims 
against AAFES will be forwarded to Headquarters, AAFES, ATTN: General 
Counsel, P.O. Box 660202, Dallas, TX 75266-0202.
    (iv) Customer complaints. Customer complaints other than at AAFES 
activities will be settled under the provisions of AR 215-1 rather than 
under the provisions of this section. AAFES generated complaints will 
be handled in accordance with Exchange Service Manual 57-2.
    (v) Commercial insurance.
    (A) Normally a claims investigation under subpart B will not be 
conducted but the claims officer will refer the claim to the insurer 
and furnish copies as indicated in paragraph (c) of this section. 
Assistance will be furnished to the insurer as needed. Copies of any 
other required investigations may be furnished to the insurer.
    (B) The status of the claim will be ascertained at key intervals to 
ensure that progress is being made, negotiations are proper, and to 
close the file. The Commander, USARCS will be advised of any problems.
    (C) If requested by either insurer or NAFI officials, the 
appropriate claims authority will assist in or conduct negotiations.
    (D) Where NAFI vehicles are required to be covered by insurance in 
foreign countries, the insurer will process the claim. However, if the 
insurer refuses to settle the claim in timely manner or is insolvent, 
the claim may be processed under subpart J procedures where applicable.


Sec. 536.204  Persons generating liability.

    Claims resulting from the acts or omissions of the following 
classes of persons are cognizable under this section:
    (a) Civilian employees of nonappropriated fund activities whose 
salaries are paid from nonappropriated funds.
    (b) Active duty military personnel while performing off-duty part-
time work and for which they are compensated from nonappropriated 
funds.
    (c) A claims approval or settlement authority will ask the 
Commander, USARCS for an advisory opinion prior to settling any claim 
where the person whose conduct generated the claim does not clearly 
fall within the above listed categories.


Sec. 536.205  Claims payable from appropriated funds.

    Claims payable from appropriated funds will not be considered under 
this section or paid from nonappropriated funds. Such claims include 
those resulting from--
    (a) Acts or omissions of military personnel while performing 
assigned military duties in connection with nonappropriated activities.
    (b) Acts or omissions of civilian employees paid from appropriate 
funds in connection with nonappropriated activities.
    (c) Negligent maintenance of a facility used by a nonappropriated 
fund activity but for which the command concerned is responsible.
    (d) Temporary use of a nonappropriated fund facility by an 
appropriated fund activity.
    (e) Operation of Government vehicles dispatched from motor pools on 
authorized missions for nonappropriated fund activities when the driver 
is a member or civilian employee of the DA.


Sec. 536.206  Settlement.

    (a) Settlement. Claims cognizable under this section and processed 
under subparts C, D, E, J or K will be settled by claims authorities 
authorized to settle claims under those subparts subject to the same 
monetary limitations and limitations on denial authority, except that 
TJAG, TAJAG, and the Commander, USARCS, or designee, may settle such 
claims without regard to monetary limitations.
    (b) Finality of settlement. The determination of a claims 
settlement authority on a claim cognizable under this section is final 
and conclusive. However, a claim processed under subpart C may be 
appealed in accordance with Sec. 536.51(d), and claims processed under 
subparts D, E, J or K may be reconsidered in accordance with the 
paragraphs concerning reconsideration in those subparts.


Sec. 536.207  Payment.

    (a) Transmission for payment. When a claim for loss of or damage to 
household goods or hold baggage shipped or stored by an AAFES or NAFI 
employee is considered under this section and determined to be 
meritorious in whole or in part, the approval or settlement authority 
will transmit the entire claims file to the appropriate disbursing 
office (see paragraph (b) of this section) for payment. When any other 
claim is considered under this section and determined to be meritorious 
in whole or in part, the approval or settlement authority will transmit 
to the appropriate disbursing office the original and one copy of--
    (1) The claim form.
    (2) The action by the approval or settlement authority.
    (3) The settlement agreement, if required by subpart B.
    (b) Disbursing offices. Normally, claims settled under this section 
will be transmitted for payment as indicated below.
    (1) Claims over $2,500 generated by AAFES activities will be 
transmitted to Headquarters, Army and Air Force Exchange Service, ATTN: 
Comptroller Division, Insurance Branch, P.O. Box 660202, Dallas, TX 
75266-0202.
    (2) Claims not over $2,500 generated by AAFES activities will be 
transmitted to the Army-Air Force Exchange Service, OSC-FA-CLAIMS, P.O. 
Box 650405, Dallas, TX 76265-0405.
    (3) Claims over $100 generated by other nonappropriated fund 
activities will be transmitted to The Army Central Insurance Fund, 
ATTN: CFSC-RM-I, Room 1240, 2461 Eisenhower Avenue, Alexandria, VA 
22331-0508. When transmitting household goods or hold baggage shipment 
claims for payment, forward the entire claims file so ACIF can pursue 
carrier recovery. Use the ``NF'' claims database transaction code.
    (4) Claims not over $100 generated by other nonappropriated fund 
activities will be transmitted to that nonappropriated fund activity 
responsible for payment from its funds. (See AR 215-1, paragraph 13-
24a.)
    (c) Reimbursement to foreign countries. Reimbursement to a foreign 
country of the United States pro rata share of a claim paid under an 
international agreement will be made from nonappropriated funds.
    (d) Evidence of payment. When a claim settled under this section is 
transmitted to a disbursing office for payment, the approving or 
settlement authority will request the appropriate disbursing office to 
return evidence of the date and amount of payment.

Claims Involving Persons Other Than NAF Employees


Sec. 536.208  Claims arising from activities of nonappropriated fund 
contractors.

    These claims should be disposed of in a manner similar to that set 
forth in DA Pam 27-162, paragraphs 8-42, 8-43, and 8-47. Post exchange 
concessionaires are independent contractors and are required to obtain 
workmen's compensation coverage under local law for their employees and 
public liability insurance governing their operations. If a dispute 
arises as to whether such insurance is available or applicable, the 
claim should be forwarded to Headquarters, AAFES, ATTN: General 
Counsel, P.O. Box 660202, Dallas, TX 75266-0202, prior to processing 
under the preceding subparts.


Sec. 536.209  Non-NAFI RIMP claims.

    The RIMP is administered by the U.S. Army Community and Family 
Support Center under the provisions of AR 215-1. Non-NAFI RIMP claims 
are not cognizable under any other provision of this regulation. 
However, except as otherwise provided in this section, Non-NAFI RIMP 
claims are subject to the same requirements that apply to other tort 
claims. USARCS carefully monitors all such claims to ensure proper 
investigation and resolution.


Sec. 536.210  Claims cognizable.

    (a) Non-NAFI RIMP claims can arise from the activities of--
    (1) Members of recreational NAFIs or authorized users of NAF 
recreational property, while using such property, except real property, 
in the manner and for the purposes authorized by DA regulations and the 
charter, constitution, and bylaws of the particular NAF activity. This 
category of persons generally has been limited to members and users of 
recreational facilities such as flying clubs organized as NAFIs and 
craft shops. This category does not include customers of exchanges, 
snack bars, motion picture theaters, or similar facilities. Whether a 
claim based on an act or omission of a member or authorized user of 
other types of NAF activities, such as officers' messes, would be 
cognizable under this paragraph depends on the facts and circumstances 
involved, including the degree of participation by the member or 
authorized user in the activities of the fund. Claims arising from the 
use of NAF property, as defined in this paragraph, are not cognizable 
under the FTCA or MCA, since the use of such recreational property is 
by individuals not considered to be employees of the Army or NAFI 
acting within the scope of their office or employment.
    (2) Family child care (FCC) providers, authorized members of the 
provider's household, and approved substitute providers while care 
under the FCC program is being provided in the manner prescribed in AR 
608-10, except as excluded below. Such claims are generally limited to 
injuries to or death of children receiving care under the FCC program 
which are caused by the negligence of such individuals. Claims arising 
from the transportation of such children in motor vehicles and claims 
involving loss or damage of property are not cognizable.
    (b) Although Non-NAFI RIMP claims do not involve employees of the 
United States, a claim under this section that is listed in Sec. 536.51 
of this part is not payable. For example, a soldier injured on a post 
golf course when hit by a golf cart operated by an authorized user is 
barred by the incident-to-service exclusion from recovering under this 
section.
    (c) A claims approval or settlement authority will ask the 
Commander, USARCS for an advisory opinion prior to settling any Non-
NAFI RIMP claim where the person whose conduct generated liability does 
not clearly fall within the above listed categories. Such authorities 
may also ask, through the Commander, USARCS, for an advisory opinion 
from the U.S. Army Community and Family Support Center prior to 
settling any claim arising under paragraph (a)(2) of this section, 
where it is not clear that the injured or deceased child was receiving 
care within the scope of the FCC program.
    (d) The total payments for all claims (including derivative claims) 
arising as a result of injury to or death of any one person are limited 
to $500,000 for each incident. Continuous or repeated exposure to 
substantially the same or similar general harmful activity or 
conditions is treated as one incident for purposes of determining the 
limit of liability.


Sec. 536.211  Procedures.

    (a) Reporting. All Non-NAFI RIMP claims (regardless of the amount 
claimed) and incidents that could give rise to Non-NAFI RIMP claims 
will be reported to USARCS and the ACIF immediately.
    (b) Investigation. Field claims offices are responsible for the 
investigation of Non-NAFI RIMP claims. Such investigations will be 
closely coordinated with program managers responsible for the activity 
generating the claim. Close coordination with USARCS is required, and 
USARCS will maintain mirror files of the investigation of all actual 
and potential claims.
    (c) Payment. Non-NAFI RIMP claims will be transmitted to The Army 
Central Insurance Fund, ATTN: CFSC-RMB-I, Room 1240, 2461 Eisenhower 
Avenue, Alexandria, VA 22331-0508 for payment.
    (d) Commercial insurance. The provisions of Sec. 536.203(e) (1) 
through (3) are also applicable to claims arising under this section, 
except that in claims involving FCC providers, a claims investigation 
will be conducted regardless of the presence of commercial insurance.


Sec. 536.212  Delegation of authority.

    (a) Settlement authority. TJAG, TAJAG, and the Commander, USARCS, 
or designees, are authorized to settle or deny Non-NAFI RIMP claims 
regardless of the amount claimed.
    (b) Approval authority.
    (1) The SJA and, subject to limitations imposed by him or her, the 
chief of the command claims service of the commands listed below are 
delegated authority to approve, in full or in part, Non-NAFI RIMP 
claims presented in the amount of $25,000 or less, and to approve such 
claims regardless of the amount claimed provided an agreed settlement 
of $25,000 or less is accepted in full satisfaction of the claim, but 
only when the total value of all settlements, claims, and potential 
claims arising out of a single incident does not exceed $25,000.
    (i) USAREUR.
    (ii) Eighth U.S. Army, Korea.
    (iii) USARSO.
    (2) Area claims offices are delegated authority to approve, in full 
or in part, Non-NAFI RIMP claims presented in the amount of $15,000 or 
less, and to approve such claims regardless of the amount claimed 
provided an agreed settlement of $15,000 or less is accepted in full 
satisfaction of the claim, but only when the total value of all 
settlements, claims, and potential claims arising out of a single 
incident does not exceed $25,000.
    (3) The above authorities are not delegated authority to deny or 
make a final offer on claims under this section. Claims requiring such 
action will be forwarded to the Commander, USARCS, with an appropriate 
recommendation.
    (c) The decision of a settlement or approval authority on a Non-
NAFI RIMP claim is final and conclusive and is not subject to 
reconsideration or appeal.

Subpart M--Affirmative Claims

General


Sec. 536.213  Authority.

    (a) Federal statutory authority.
    (1) The Federal Claims Collection Act (31 U.S.C. 3711), as amended 
by the Debt Collection Act of 1982 and Pub. L. 101-552 (15 November 
1990). The Federal Claims Collection Act states that Federal agencies 
will try to collect all claims of the United States for money or 
property. Among other things, it provides a basis for agencies to 
recover for damage to Government property.
    (2) Federal Medical Care Recovery Act (42 U.S.C. 2651-53) 
(hereinafter ``FMCRA''). The FMCRA provides for the recovery of the 
reasonable value of medical care furnished by the United States on 
account of injury or disease incurred under circumstances creating tort 
liability upon some third person. The FMCRA is implemented by EO 11060 
and 28 CFR 43; the Federal Claims Collection Standards (DA Pam 27-162, 
appendix M) also apply, as appropriate. However, some procedures 
appropriate for liquidated debts may not be appropriate for 
unliquidated claims.
    (3) 10 U.S.C. 1095. 10 U.S.C. 1095 provides authority for military 
health care facilities to collect the reasonable cost of health care 
from health insurance and medicare supplemental policies. As amended by 
Pub. L. 101-510 (5 November 1990), this statute provides claims offices 
with additional authority to assert claims against automobile insurers 
for care provided in an MTF on or after that date.
    (b) Other authority.
    (1) State Workers' Compensation laws.
    (2) State hospital lien laws.
    (3) Contract rights under terms of insurance policies include 
medical payment coverage, uninsured and underinsured coverages, and no-
fault.
    (4) State automobile no-fault laws.


Sec. 536.214  Recovery judge advocate/attorney.

    (a) General. A JA or claims attorney (designated per Sec. 536.6) 
assigned responsibility for asserting affirmative claims may be 
designated as a recovery judge advocate (RJA) or recovery attorney, as 
appropriate. This designation may be in addition to or in lieu of 
designation as a claims JA or claims attorney, depending on the local 
command needs and available personnel. When assertion of affirmative 
claims is a full-time responsibility of an attorney or JA, the table of 
distribution and allowances (TDA) position title can also reflect the 
recovery function.
    (b) Designation. (1) The chief of a command claims service, an area 
claims office, or a claims processing office with approval authority 
may designate an RJA or recovery attorney for all or part of the area 
of responsibility assigned to the service or office. All designations 
will be in writing. A command claims service may withhold designation 
authority within its area of operations or place reasonable 
restrictions on such designation by subordinate offices through 
appropriate command directives.
    (2) The Commander, USARCS will designate RJAs and recovery 
attorneys for areas not within the responsibility of a command claims 
service or area claims office.


Sec. 536.215  Purpose and policy.

    (a) This subpart prescribes procedures for the administrative 
determination, assertion, collection, settlement, and waiver of claims 
in favor of the United States for damage to, loss, or destruction of 
Army property, and for the recovery of the reasonable value of medical 
care furnished or to be furnished by the United States, under the 
statutes cited in Sec. 536.213. Sound governmental policy in the 
collection of claims of the United States for money or property 
requires aggressive agency collection action. Responsible officials 
within DA will ensure that personnel asserting claims are properly 
trained and supported to take timely and effective action.
    (b) The subpart does not apply to the following:
    (1) Claims between Federal agencies. If such a claim cannot be 
resolved by negotiation, it should be referred to GAO.
    (2) Maritime claims under subpart H.
    (3) Affirmative actions for nonmonetary relief (for example, 
evictions, specific performance, and injunctive relief).
    (4) Claims arising out of tax aspects of a contract, or other 
transaction or activity involving either nonappropriated or 
appropriated funds.
    (c) The senior Judge Advocate of a command having a command claims 
service, or the commander, USACSEUR, will prescribe procedures for 
implementing single service claims responsibility under DODD 5155.8 and 
for implementing any provision in a treaty or international agreement 
that limits or provides special methods for asserting claims in favor 
of the U.S. With the concurrence of the Commander, USARCS, the senior 
JA of a command having a command claims service, or the commander, 
USACSEUR, is authorized to modify the procedures in this subpart to 
accommodate special circumstances. The SJA will provide the Chief, 
Personnel Claims and Recovery Division, with a copy of all published 
guidance.


Sec. 536.216  Delegation of Authority.

    Claims offices may accept the full amount asserted on an 
affirmative claim. In addition--
    (a) TJAG; TAJAG; the Commander, USARCS; and the Chief, Personnel 
Claims and Recovery Division, USARCS, may compromise or terminate 
collection action on a property damage claim asserted for $100,000 or 
less; and may compromise, waive or terminate collection action on a 
medical care claim asserted for $100,000 or less.
    (b) The senior JA of a command having a command claims service, or 
the commander, USACSEUR, may compromise, waive or terminate collection 
action on a medical care or property damage claim asserted for $100,000 
or less.
    (c) Unless authority is withheld by the Commander, USARCS or the 
chief of a command claims service, the head of an area claims office 
may:
    (1) Compromise up to $25,000 of the amount asserted on a property 
damage or medical care claim asserted for $40,000 or less (see 
Sec. 536.229(b)).
    (2) Terminate collection action on a property damage or medical 
care claim asserted for $25,000 or less when further collection efforts 
are not feasible (see paragraph 14-19c); or waive a medical care claim 
asserted for $25,000 or less when collection in any amount will result 
in undue hardship to the injured party (see Sec. 536.229(d)).
    (d) The head of an area claims office may delegate authority to a 
claims processing office to:
    (1) Compromise up to $20,000 of the amount asserted on a property 
damage or medical care claim asserted for $40,000 or less (see 
Sec. 536.229(d)).
    (2) Terminate collection action on a property damage or medical 
care claim asserted for $20,000 or less when further collection efforts 
are not feasible (see paragraph 14-19c); or waive a medical care claim 
asserted for $20,000 or less when collection in any amount will result 
in undue hardship to the injured party (see Sec. 536.229(d)).
    (e) The head of an area claims office or a claims processing 
office, or the chief of a command claims service, may redelegate up to 
$20,000 of his or her authority to an RJA.
    (f) In determining whether a settlement authority has authority to 
compromise, terminate, or waive a claim, consider the medical costs for 
all parties injured in a single incident as a single assertion; and 
consider the total value of Government property damaged or destroyed in 
a single incident as a single assertion.
    (g) Only the Department of Justice (DOJ) may approve claims 
involving:
    (1) Compromise, termination, or waiver of a medical care or 
property damage claim asserted for more than $100,000.
    (2) Settlement actions previously referred to DOJ.
    (3) Settlement where a third party has filed suit against the 
United States or the injured party for the same incident which gave 
rise to the claim of the United States.
    (h) The commander, USARCS, or the Chief, Personnel Claims and 
Recovery Division, in consultation with the Department of Justice, will 
approve all claims involving unusual circumstances, a new point of law 
which may serve as a precedent, or a question of policy.


Sec. 536.217  Basic considerations.

    (a) The Federal Claims Collection Standards. The Federal Claims 
Collection Standards, (4 CFR chapter II, parts 103 and 104, reprinted 
in DA Pam 27-162, appendix M), prescribe standards for compromising and 
litigating property damage claims, and provide general guidance for 
compromising and litigating medical care claims.
    (b) Time limitations. (1) Property damage claims. Claims asserted 
under the Federal Claims Collection Act for damage to Government 
property are founded in tort and must be brought within three years 
after the action ``first accrues'' (28 U.S.C. 2415b).
    (2) Medical care claims asserted under the FMCRA or 10 U.S.C. 1095. 
Claims asserted under the FMCRA or against an automobile liability 
insurer under 10 U.S.C. 1095 are also founded in tort and must be 
brought within three years after the action ``first accrues'' (28 
U.S.C. 2415b). Although no court has ruled on this issue, claims 
asserted under 10 U.S.C. 1095 against a no-fault or PIP insurer are 
presumably founded in a contract ``implied in law''; if so, they must 
be brought within six years (28 U.S.C. 2415a).
    (3) Computing the statute of limitations. Normally, a medical care 
claim ``first accrues'' on the initial date of treatment, and a 
property damage claim accrues on the date that the property was 
damaged. However, in computing the statute of limitations, 28 U.S.C. 
2416(c) excludes the period of time before a U.S. official charged with 
the responsibility to act in the circumstances knows or should know 
that there is a basis for a claim. See United States v. Hunter, 645 F. 
Supp 758, 760 (N.D.N.Y. 1986). For example, the three year statute of 
limitations would not begin to run on most medical care claims paid by 
CHAMPUS at least until the date on which CHAMPUS received the bill from 
the provider.
    (4) Medical care claims asserted under state law. Claims asserted 
against an insurer on a third party beneficiary theory or against a 
state workers' compensation fund must be brought within the applicable 
state statute of limitations which can range from one to six years. 
Normally, the statute of limitations would begin to run when the injury 
occurred, rather than the date of initial treatment.
    (c) Applicable law. Federal law does not define what constitutes a 
tort. Unless the RJA can properly apply the law of another jurisdiction 
under conflict of law rules, the RJA will apply the law of the state or 
country where an incident occurred in determining whether the 
Government has a cause of action founded in tort.
    (d) Concurrent claims. (1) Claims for damage to Army property and 
claims for medical care arising from the same incident will be 
processed under the section applicable to each. However, efforts should 
be made to include all medical care and property damage claims in a 
single demand against a third party or insurance company. Settlement 
agreements will be drafted so that settlement and release of one claim 
shall not prejudice settlement of the remaining claim.
    (2) If the incident giving rise to a claim in favor of the United 
States also gives rise to a potential claim against the United States, 
the claim in favor of the Government will be asserted and processed 
only by a claims approval or settlement authority who has jurisdiction 
to take final action on the claim against the Government.


Sec. 536.218  Claims against certain prospective defendants.

    (a) U.S. Government agencies. RJAs will not assert a claim against 
any department, agency or instrumentality of the United States. A self-
insured NAFI, whether revenue producing, welfare or sundry, is 
considered an ``agency or instrumentality of the United States''; a 
private association is not.
    (b) Property damage assertions against soldiers and employees. The 
report of survey system (chapter 13, AR 735-5) is the primary mechanism 
for collecting from a civilian employee or a soldier (including an AR 
or NG soldier) for damage to government property. Report of survey 
procedures should normally be used whenever applicable. AR 735-5 
requires claims offices to assert property damage claims against 
soldiers and employees in two instances:
    (1) Damage caused by POV's. Pursuant to paragraph 14-30, AR 735-5, 
if a report of survey approving authority assesses liability against a 
soldier or civilian employee for negligently damaging Government 
property using a POV, and the soldier or employee does not make 
restitution, the approving authority will forward the approved report 
of survey to the claims office. The RJA will assert a demand against 
the soldier or employee's liability insurance for the full value of the 
damage. If the soldier or employee does not have insurance, the RJA 
will return the action for the approving authority to withhold a 
month's pay from the soldier or employee.
    (2) Exhaustion of collection remedies. Pursuant to paragraph 14-
4b(7), AR 735-5, if an F&AO has exhausted all administrative 
mechanisms, including IRS offset, for collecting amounts assessed under 
a report of survey from a soldier, ROTC cadet or employee, the F&AO may 
refer the action to the servicing claims office for recovery action 
under the Federal Claims Collection Act. The RJA will assert such 
claims and initiate litigation if appropriate.
    (c) Medical care assertions against soldiers, employees, family 
members, and retirees.
    (1) Acting within scope of employment. The RJA will not assert a 
medical care claim against a tortfeasor who is a civilian employee or 
service member (including a reserve component member) acting within 
scope of employment, whether or not the employee or member has private 
insurance (cf. U.S. v. Gilman, 347 U.S. 507 (1954)). ``Scope of 
employment'' is determined by the laws of the state where the injury 
occurred.
    (2) Persons not in scope who injure themselves. An RJA will not 
assert a claim based on a tort liability theory against a tortfeasor 
who is a soldier, family member or retiree for the tortfeasor's own 
medical care; a person cannot create tort liability by injuring himself 
or herself. In such instances, however, the RJA may assert a claim 
under 10 U.S.C. 1095 against the injured tortfeasor's personal injury 
protection (PIP) or medical payments insurance coverage.
    (3) Persons not in scope with liability insurance. An RJA may 
assert a medical care claim against the liability insurer of a service 
member, civilian employee, family member or retiree who injures some 
other person entitled to medical care. Interfamilial tort immunity 
would not preclude the RJA from asserting a medical care claim based on 
a tort liability theory for care furnished to a tortfeasor's family 
members (see, e.g., U.S. v. Haynes, 445 F.2d 907 (5th Cir. 1971); U.S. 
v. Moore, 469 F.2d 788 (3rd Cir, 1972).
    (4) Persons not in scope with no insurance. An RJA may assert a 
medical care claim against a soldier, civilian employee, family member 
or retiree without insurance coverage with the approval of the Chief, 
Personnel Claims and Recovery Division, USARCS, or designee. Approval 
will be granted if there are aggravating circumstances, such as willful 
misconduct, and the tortfeasor has sufficient assets to satisfy both 
the injured victim and the Government's claim.
    (d) Government contractors. Some contracts have ``cost-plus'' or 
reimbursement provisions which require the government to reimburse the 
contractor for many types of expenses. If it appears that the contract 
would require the government to reimburse a contractor for money 
recovered on an otherwise meritorious affirmative claim, the RJA will 
investigate the claim and forward a recommendation to USARCS, 
referencing the specific contract clauses involved. The RJA will assert 
other claims against government contractors after verifying that the 
contract does not contain a reimbursement provision.
    (e) NG organizations and members. The RJA will investigate claims 
arising from the tortious conduct of NG members. The RJA will assert 
claims against NG members and their insurers in accordance with 
Sec. 536.218 (b) and (c). If the NG members were acting within the 
scope of employment as State employees and an assertion against the NG 
organization's insurer appears appropriate, the RJA will forward a 
recommendation to USARCS.

Property Claims


Sec. 536.219  General.

    (a) Other regulations establish systems of property accountability 
and responsibility; and provide for the administrative collection of 
charges from military and civilian personnel of the United States, and 
other individuals and legal entities from whom collection may be made 
without litigation. However, when the investigation results in a 
preliminary indication of pecuniary liability and no other method of 
collection is provided, the matter will be referred for action under 
this subpart. Assertions may be made under this section for the loss, 
damage, or destruction of--
    (1) Property under DA control (AR 735-5).
    (2) Property of the Defense Supply Agency in DA custody.
    (3) Property of nonappropriated fund activities of the Army (except 
AAFES property unless a special agreement exists). (See AR 215-1 and AR 
215-2.)
    (4) Federal property made available to the ARNG (AR 735-5).
    (b) This section does not apply to--
    (1) Claims for damage to property funded by civil functions 
appropriations.
    (2) Reimbursements from agencies and instrumentalities of the 
United States for damage to property.
    (3) Collection for damage to property by offset against the pay of 
employees of the United States, or against amounts owed by the United 
States to common carriers, contractors, and states.
    (4) Claims by the United States against carriers, warehousemen, 
insurers, and other third parties for amounts paid in settlement of 
claims by members and employees of the Army or DOD for loss, damage, or 
destruction of personal property while in transit or storage at 
Government expense (subpart K).


Sec. 536.220  Repayment in kind.

    The RJA may accept the repair or replacement of the property in 
lieu of payment of the claim. The staff officer responsible for the 
property must certify accomplishment of the repair or replacement (such 
as is described for motor vehicles in AR 735-5) before a release may be 
executed. The authority conferred by this paragraph is not limited to 
incidents involving motor vehicles.


Sec. 536.221  Property damage predemand procedures.

    (1) Identification of potential claims. The RJA will ensure that 
installation motor pools, housing and engineering staff sections, unit 
property custodians, and similar persons apprise the claims office of 
damage to DA property. In addition, claims personnel will review MP 
blotters and reports, civilian news sources, reports of survey, 
magistrate court proceedings, line of duty and AR 15-6 investigations, 
and similar reports to identify additional property damage cases. A 
claims office designated as the NG point of contact for a state will 
coordinate with NG officials to ensure that NG units appoint unit 
claims officers and report potential claims.
    (b) Transfer of responsibility. If another claims office is better 
situated to investigate and assert a property damage claim, the claims 
office will coordinate with that office. The Chief, Affirmative Claims 
Branch, USARCS, will resolve any disagreements. In addition, the office 
designated as the NG point of contact for a state will forward 
potential claims arising in another office's area of responsibility to 
that office.
    (c) Investigation. Claims personnel will investigate potential 
incidents, question witnesses to determine the facts and circumstances, 
and identify all available insurance coverage. Claims personnel may 
directly request assistance from other DOD claims offices. Claims 
personnel may also request an investigation of an incident by a unit 
claims officer for the unit or organization responsible for the damaged 
or destroyed property, or, when the investigation may be more 
practically conducted by the claims officer of some other unit or 
organization, by another unit claims officer. If no other report has 
been prepared, the unit claims officer will prepare DA Form 1208. 
Claims personnel will obtain a breakdown of costs from the custodian of 
the property.
    (d) Closing potential claims without assertion. If the RJA 
determines that there is no tort liability or that the potential 
recovery is too small to be worth pursuing, he or she will dispose of 
the notification without asserting a claim. If a potential claim file 
was opened, claims personnel will annotate the basis for closing the 
potential claim on the chronology sheet referencing the Federal Claims 
Collection Standards.
    (e) Asserting demands. If there is a legal and factual basis for 
the Government to recover, claims personnel should notify both the 
tortfeasor and the tortfeasor's insurer. The assertion letter should 
outline the facts and cite the Federal Claims Collection Act as the 
basis for recovery. The claims office may also cite local law. The 
claims office should assert the claim for the full costs to the 
Government, if known, or state that the costs are still being 
ascertained. Where appropriate, the assertion letter should also 
provide the option to repair the damaged property or to replace it in 
kind.

Medical Care Claims


Sec. 536.222  General.

    (a) Army claims offices assert claims against tortfeasors and 
insurers for medical and dental care which is furnished to a soldier, 
family member or retiree at Army expense to treat an injury or disease 
resulting from tortious conduct. In states that have modified 
traditional tort liability, Army claims offices also assert claims 
against insurers other than health benefits insurers, such as no-fault 
and medical payments automobile insurers, and workers' compensation 
funds. In doing so, claims offices coordinate their efforts with the 
injured party's efforts to recover other damages from tortfeasors and 
insurers.
    (b) Claims offices will forward potential claims for medical care 
furnished to service members, family members or retirees of Air Force, 
Navy, Marine Corps or Coast Guard to the nearest installation or office 
of that service. As an exception to this rule, however, claims offices 
may assert and collect claims for medical care provided to retirees of 
another service and their dependents if:
    (1) medical care was furnished at the local Army MTF; and
    (2) the incident giving rise to the claim occurred near the Army 
installation; or
    (3) the retiree resided near the Army installation. In these 
exceptional situations, the claims office must ensure that the retiree 
is not receiving care at another service's MTF. The claims office must 
also notify USARCS as well as the nearest installation or office of the 
retiree's service that it is handling the claim.
    (c) In some instances, the Army and the VA will both pay for care 
provided to a soldier or retiree. The VA, however, is precluded from 
asserting claims for ``service-connected'' injuries. Accordingly:
    (1) If a soldier is injured and is discharged from the service, the 
claims office will assert claims for the reasonable value of medical 
care furnished at Army expense (including care furnished in a VA 
facility) prior to a soldier's discharge. Claims offices will not 
assert for the value of medical care furnished at VA expense, but the 
RJA will consider future care provided by VA in determining whether to 
approve a waiver or compromise.
    (2) If a retiree is injured and receives some care paid for by the 
Army and other care in a VA facility, the claims office will coordinate 
with the nearest VA office and assert a claim for the full value of the 
care provided. The office will remit the amount recovered for care 
provided at VA expense to the VA.


Sec. 536.223  Recovery Rights under the FMCRA.

    Pursuant to the Federal Medical Care Recovery Act the Government 
may pursue recovery of medical costs under any of the following 
tactics:
    (a) Subrogation. The United States is subrogated to any rights or 
claims held by a person to whom the Government has provided medical 
care against the tortfeasor who caused him or her to be injured. As 
subrogee, the United States can recover from the wrongdoer the 
reasonable value of the medical care it has furnished or will furnish 
the injured party.
    (b) Intervention. The United States can intervene in an injured 
party's suit against a tortfeasor or bring suit as the assignee of an 
injured party's right of action.
    (c) Independent Action. The United States can assert 
administratively and litigate a medical care claim in its own name.
    (d) Item of Special Damages. The injured party's attorney can 
assert the Government's claim as an item of special damages in an 
injured party's suit against the tortfeasor.


Sec. 536.224  Identification of potential medical care recovery claims.

    (a) By MTF personnel. (1) The MTF commander will ensure that the 
claims office is notified of instances where the MTF provides or is 
billed by a civilian facility for inpatient or outpatient care 
resulting from injuries such as broken bones or burns arising from 
automobile accidents, gas explosions, falls, civilian malpractice, and 
similar incidents which do not involve collections from a health 
benefits or medicare supplemental insurer. Claims personnel will 
coordinate with MTF personnel to ensure that inpatient and outpatient 
records, and emergency room and clinic logs are properly screened to 
identify potential cases.
    (2) The MTF commander will also ensure that the MTF does not 
release billings or medical records, or respond to requests for 
assistance with worker's compensation forms, without coordinating with 
the RJA.
    (b) By CHAMPUS fiscal intermediaries. The CHAMPUS fiscal 
intermediary is required to identify and to promptly mail claims 
involving certain diagnostic codes to the claims office designated as 
the state point of contact. The fiscal intermediary is required to 
provide the contact office with a personal injury questionnaire 
completed by the injured party and a copy of the CHAMPUS Explanation of 
Benefits showing the amount that CHAMPUS paid on the claim.
    (1) In accordance with chapter 5 of the CHAMPUS Fiscal Intermediary 
Operations Manual (September 1991), a fiscal intermediary must suspend 
payment on a claim with possible medical care recovery until the 
injured party properly completes the personal injury questionnaire. 
Within 15 working days after receiving and evaluating the completed 
questionnaire, the fiscal intermediary is required to dispatch possible 
medical care recovery cases to the appropriate claims office. The 
contact office must work with the fiscal intermediary to ensure that 
claims are properly identified and forwarded in a timely manner. The 
claims office should document persistent problems and notify USARCS.
     (2) Prior to settlement of a CHAMPUS claim, claims offices should 
recontact the fiscal intermediary to ensure that all amounts paid for 
by CHAMPUS are included in the Government's assertion.
    (c) By claims personnel. The RJA will ensure that MTF comptroller, 
clinic, and Patient Administration Division records are screened to 
identify potential medical care recovery cases. The RJA will also 
coordinate with Navy and Air Force claims offices and MTFs to ensure 
that they identify potential claims involving treatment provided to 
Army personnel. To the extent possible claims personnel will review 
civilian police reports, military police blotters and reports, news 
reports, magistrate court proceedings, line of duty and AR 15-6 
investigations, and similar sources to identify other potential medical 
care recovery claims.


Sec. 536.225  Medical care procedures following identification.

    (a) Opening potential claims. Unless it is obvious from the 
notification documents that there is no potential recovery, claims 
personnel will open a potential claims file on each incident 
identified. Until the Affirmative Claims Management Program is revised 
to include a ``potentials database,'' potential claims will be recorded 
in the Claims Journal (DD Form 1667).
    (b) Transfer of responsibility. (1) Several claims offices may be 
notified of incidents involving more than one injured party or 
treatment at more than one facility. If an RJA has reason to believe 
that this has occurred, the RJA will contact the other offices to 
determine which office has the most significant contacts and should 
assert the claim. The office closest to where the injury occurred is 
not necessarily the office with the most significant contacts. In the 
event that offices cannot agree, they will refer the matter to the 
Chief, Affirmative Claims Branch, USARCS for a decision. The claims 
office will notify the MTF if it transfers responsibility for a claim 
that the MTF referred.
    (2) The office designated as the CHAMPUS or NG point of contact for 
a state will forward potential claims arising in another office's area 
of responsibility to that office.
    (c) Investigation. If MTF personnel have not already collected the 
necessary information, claims personnel will dispatch questionnaires to 
injured parties to determine the facts and circumstances and identify 
all available insurance coverage. Claims personnel will obtain medical 
records and billings to determine the value of the Government's claim, 
and will contact witnesses and consult with medical personnel as 
appropriate. RJAs may direct unit claims officers to investigate 
incidents and may request assistance from other DOD claims offices as 
needed.
    (d) Closing potential claims without assertion. If the RJA 
determines that there is no tort liability or possible recovery from an 
insurer or workers' compensation fund, or that the potential recovery 
is too small to be worth pursuing, he or she will dispose of the 
notification without asserting a claim. If a potential claim file was 
opened, claims personnel will annotate the basis for closing the 
potential claim on the chronology sheet. If an MTF provided the 
notification, claims personnel will return the notification with a 
dated and signed notation, ``Per RJA, no third party recovery.''
    (e) Asserting demands. If there is a legal and factual basis for 
the Government to recover, claims personnel will assert a demand 
against each tortfeasor and insurer. Claims personnel should place 
tortfeasors and insurers on written notice of the Government's right to 
recover even if the injured party's attorney enters into a 
representation agreement (see Sec. 536.226(b)).
    (1) Automobile case--tort liability. If care was wholly or partly 
provided in an MTF on or after 5 November 1990, the claims office will 
assert demands against the tortfeasor and his insurer citing both the 
FMCRA and 10 U.S.C. 1095. If care was provided in a civilian hospital 
or was provided before 5 November 1990, the office will only cite the 
FMCRA as a basis for recovery.
    (2) Automobile cases--no tort liability. If care was wholly or 
partly provided in an MTF on or after 5 November 1990, the claims 
office will assert demands against the injured party's Personal Injury 
Protection (PIP), medical payments, or no-fault insurance citing 10 
U.S.C. 1095. If care was provided in a civilian hospital or was 
provided before 5 November 1990, the office will cite applicable state 
insurance law recognizing the United States as a third party 
beneficiary of an injured party's automobile insurance.
    (3) Automobile cases--multiple sources of recovery. If the claims 
office can recover from the tortfeasor's automobile liability and from 
the injured party's non-liability coverage, the claims office should 
put both insurers on notice of the claim and should first attempt to 
collect from the no-fault insurer. If the tortfeasor is an uninsured 
motorist and the injured party has uninsured/underinsured motorists' 
coverage, the claims office should attempt to recover from the injured 
party's insurer while following the procedures in Sec. 536.228(a). See 
Sec. 536.227(e) if the injured party has health benefits insurance.
    (4) Special rules applicable to CHAMPUS ``primary payers.'' 
Pursuant to 10 U.S.C. 1079(j)(1) and 1086(g), workers' compensation and 
the injured party's no-fault, PIP, medical payments, and uninsured/
underinsured motorist's coverage are considered ``primary'' to CHAMPUS. 
Before the fiscal intermediary pays the injured party's medical bills 
and notifies the claims office to assert a claim against the 
tortfeasor, the fiscal intermediary is required to verify that these 
``primary payers'' have paid.
    (i) If the fiscal intermediary overlooks such coverage, the claims 
office will immediately assert a demand against the injured party's 
insurer (or the workers' compensation fund) citing 10 U.S.C. 1079(j)(1) 
in addition to other sources of authority. If the insurer has already 
disbursed the policy limits to the injured party, the claims office 
will request repayment from the injured party. The claims office will 
return money recovered in this manner to CHAMPUS (see 
Sec. 536.231(d)(3).
    (ii) If the injured party or the injured party's insurer decline to 
pay and the claims office does not recover the full amount asserted 
from the tortfeasor's liability insurer, the claims office will forward 
the file to USARCS, which will refer the matter to the OCHAMPUS General 
Counsel. In this instance, the claims office will not waive or 
compromise any portion of the Government's claim because of undue 
hardship to the injured party without the approval of Chief, Personnel 
Claims and Recovery Division, USARCS.
    (5) On-the-job injuries. In states that recognize the United States 
as a beneficiary of state workers' compensation systems, the claims 
office will present a claim to the appropriate office.
    (6) Other injuries. Other instances giving rise to third party 
liability include gas explosions, malpractice by civilian physicians, 
slip-and-fall incidents, and product liability cases. Claims offices 
will assert demands against the tortfeasor and his insurer citing the 
FMCRA.
    (f) Determination of the amount asserted.
    (1) MTF costs. Recovery for MTF care is presently based upon 
multiple ``clinical group'' per diem inpatient rates and a single per 
visit outpatient rate established by the Office of Management and 
Budget (OMB). Claims personnel should obtain a billing from each MTF. 
The RJA should, however, obtain information from the MTF registrar and 
adjust the amount asserted if it appears that the billings include 
inpatient days where the injured party was retained in the MTF for 
administrative purposes rather than medical needs.
    (2) CHAMPUS costs. Recovery for inpatient care provided in civilian 
hospitals and paid through CHAMPUS is based upon the CHAMPUS 
``Diagnosis Related Group'' (DRG) rates, regardless of the ``actual'' 
costs. Rates for outpatient care are based on the CHAMPUS ``allowable 
charge'' for that medical service. Claims offices should assert for the 
amount that CHAMPUS paid even though this can sometimes exceed the 
amount that the civilian hospital billed.
    (3) Ambulance services. Ambulance and air ambulance services 
provided to soldiers, family members and retirees are ``medical costs'' 
within the meaning of the FMCRA and 10 U.S.C. 1095, but they are not 
included in the OMB rates. Claims offices should try to obtain a 
specific breakdown of costs from the MTF or the unit providing the 
services and include these in the amount asserted.
    (4) Burial expenses. If a soldier dies from injuries received and 
is buried at Government expense, the installation Mortuary Affairs 
Office completes DD Form 2063 and itemizes expense data on this form. 
While burial expenses are not ``medical care'' within the meaning of 
the FMCRA or 10 U.S.C. 1095, many insurance policies provide for the 
payment of such expenses. Claims offices may assert a demand for burial 
expenses incurred by the Government if the insurance contract provides 
for payment of such expenses and state law recognizes the United States 
as a third party beneficiary of the contract. Claims personnel should, 
however, be extra sensitive to the possibility that the insurance 
proceeds might be inadequate and should consider waiving or 
compromising the Government's claim in appropriate cases to avoid undue 
hardship to the deceased injured party's next of kin.


Sec. 536.226  Relations with the injured party.

    (a) Claims personnel will advise the injured party and/or his 
attorney that--
    (1) The United States has a right to recover the reasonable value 
of medical care that has been furnished or will be furnished in the 
future.
    (2) The injured party is required to cooperate with the United 
States by providing a complete statement of the facts and circumstances 
surrounding the injury, information about any legal action brought 
against any prospective defendant, and information about and copies of 
any insurance policies.
    (3) The injured party should not execute a release or settle any 
claims without notifying the RJA.
    (4) The injured party may consult with a legal assistance attorney 
if he or she is otherwise entitled to legal assistance.
    (b) Claims personnel should attempt to coordinate action to collect 
the claim of the United States with the injured party's action to 
collect his or her own claim against a tortfeasor or insurer.
    (1) The RJA may enter into a written agreement with the injured 
party's attorney to assert the Government's claim and to include it as 
an item of special damages if the injured party sues. The agreement 
must state that the Government will not pay counsel fees, and that the 
attorney will not compute his fee based on the Government's portion of 
any recovery. The agreement must also state that the Government must be 
consulted regarding any potential compromise and must agree to any 
settlement.
    (2) The RJA should coordinate with the injured party's attorney to 
ensure that any request for compromise or waiver of the Government's 
claim is considered as far in advance of settlement as is practical.
    (3) The RJA may arrange to make local witnesses available for the 
injured party's attorney. With approval from USARCS, the RJA may 
arrange to make other Army witnesses available for the injured party's 
attorney if it is in the Government's best interests to do so. Any such 
request must be submitted as far in advance as practical. The 
appearance of present and former DA military and civilian personnel as 
witnesses is governed by AR 27-40, Chapter 7.
    (4) The RJA should immediately terminate a representation agreement 
and independently pursue the Government's right to recover if the 
injured party's interests conflict with the Government's interests, or 
if the injured party's attorney fails to keep the RJA informed of 
developments or otherwise acts in a manner inconsistent with 
representing the Government's interest.
    (c) If the injured party or his attorney fails to cooperate with 
the claims office, the RJA is authorized to direct the MTF personnel to 
withhold billing information and should vigorously pursue the 
Government's right to recover. In addition, as outlined in 32 CFR 
537.23, the RJA is authorized to direct the MTF to withhold release of 
medical records until the injured party provides the statement and 
other information required by Sec. 536.226(a)(2); the RJA may not, 
however, direct the MTF to withhold medical records if the injured 
party's attorney merely refuses to enter into a representation 
agreement. In appropriate cases, the claims office should intervene in 
pending litigation.
    (d) If the injured party's attorney improperly withholds or 
disburses money collected on behalf of the Government, the RJA should 
immediately initiate action to recover the money owed through 
litigation or through State disciplinary proceedings after appropriate 
coordination in accordance with AR 27-40 and AR 27-1.
    (e) Claims personnel may obtain an assignment from the injured 
party or his attorney for the reasonable value of the care that the 
United States provided if this will facilitate collection. The absence 
of an assignment does not affect the Government's independence right 
under the FMCRA, however, and an assignment is normally not necessary.

Recovering and Deposition on Claims


Sec. 536.227  The MTF Third Party Recovery Program (TPCP).

    DOD Claims offices and MTFs manage complementary programs to 
recover for medical care furnished at DOD expense. Pursuant to a 
Memorandum of Agreement (MOA) between the Judge Advocate General and 
The Surgeon General and understandings with Navy and Air Force 
authorities, claims offices and MTF's support each other's recovery 
programs.
    (a) As provided in the MOA, claims offices will recover from 
automobile insurers, while MTFs will recover from health benefits and 
medicare supplemental insurance.
    (b) As provided in the MOA, MTFs will obtain insurance and other 
relevant information from persons receiving inpatient and outpatient 
treatment for injuries resulting from an accident. MTF personnel will 
also screen emergency room logs, clinic records, and patient admission 
information to identify accident cases. MTFs will refer these cases to 
claims offices in a timely manner, assist claims offices in obtaining 
medical records and cost computations, and route requests for medical 
records from injured parties and attorneys through the RJA.
    (c) In return, claims offices will notify the MTFs of the final 
disposition of cases referred, deposit money recovered under 10 U.S.C. 
1095 to the operations and maintenance account of the MTF that provided 
the care (see Sec. 536.231(d)), and report the amounts deposited to an 
MTF's account on a monthly basis.
    (d) As provided in the MOA, the head of each claims office may 
enter into a local Memorandum of Agreement with his or her supporting 
Army MTF commander. Such agreements should cover procedures, the degree 
of staffing each office will provide, and time frames for providing 
records or information. Such agreements may also provide for the MTF to 
assist the claims office's medical care recovery effort, either by 
giving back money deposited by the claims office into the MTF's 
Operations & Maintenance fund to the claims office, or by providing 
personnel or other support. Any personnel provided or money returned to 
the claims office under such an agreement will only be used to support 
affirmative claims collection efforts.
    (e) If care was wholly or partly provided in an MTF on or after 5 
November 1990 and recovery is possible from both a health benefits 
insurer and an automobile insurer, the MTF will first attempt to 
collect from the health insurer. If the MTF cannot recover the full 
value of the Government's claim from the health insurer, the MTF will 
foward the claim file to the installation claims office for collection 
from the automobile insurer.


Sec. 536.228  Post demand procedures.

    (a) Uninsured Motorists. If the tortfeasor is an uninsured 
motorist, affirmative claims personnel will assert a demand against the 
tortfeasor, and will request suspension of the tortfeasor's driving and 
registration privileges under a State financial responsibility law if 
the tortfeasor does not pay promptly. If collection from the tortfeasor 
is not feasible, claims personnel will pursue recovery from any State 
uninsured motorist's fund or, on a medical care claim, from the injured 
party's uninsured motorist's coverage.
    (b) Periodic review of pending claims. Whether or not the injured 
party's attorney has agreed to assert the Government's claim, claims 
personnel will review the status of pending claims every 60 days and 
take follow-up action as appropriate. Claims personnel should 
periodically contact the injured party's attorney to determine the 
status of pending cases, and should call or send follow-up letters to 
an insurer or tortfeasor who fails to respond to a demand or provides 
an unacceptable response. Follow-up action should be documented on the 
claims chronology sheet.
    (c) Adjusting the amount asserted. The RJA should adjust the amount 
asserted on a claim as further treatment is provided. The RJA should 
delay settlement if it appears that extensive treatment is necessary or 
should consider this in negotiating a settlement.
    (d) Forwarding claims to higher authorities. The RJA or head of a 
claims office will terminate action or will act on requests for waiver 
or offers to compromise that are within his or her settlement authority 
(see Sec. 536.216). If a higher settlement authority must act on the 
claim, the RJA will forward a completed worksheet to the area claims 
office (if that office has authority to take action) or to USARCS as 
appropriate. When time is of the essence in securing a settlement, an 
RJA may contact USARCS telephonically for authorization to waive or 
compromise a claim. Prior to the expiration of the statute of 
limitations, the RJA should contact USARCS for guidance on disposing of 
any claim which cannot be recovered in full, compromised, terminated or 
litigated.


Sec. 536.229  Settling affirmative claims.

    Claims personnel will reflect the basis for any settlements other 
than payment in full in the claims file. Note that under some 
circumstances, settlement authority may not waive or compromise a claim 
that he or she would normally have authority to act on (see 
Sec. 536.216(g)).
    (a) Payment in full. A settlement authority may settle a medical 
care or property damage claim by recovering the full amount the 
Government's claim as a lump sum, through installment payments, or as a 
repair in kind on a property damage claim. An offer for the full amount 
of available insurance would not ``pay in full'' a claim asserted for a 
greater amount, and the RJA would have to follow compromise procedures.
    (b) Compromise. (1) If there are difficulties in recovering on a 
medical care or property damage claim (as defined by part 4 CFR part 
103 of the Federal Claims Collection Standards), a settlement authority 
may accept less than the amount asserted from a tortfeasor or insurer 
for the convenience of the government. Acceptable bases for compromise 
for the convenience of the government include inability of the 
tortfeasor to pay, insufficient insurance, probability that the 
government will be unable to prove its case, or collection costs which 
are not commensurate with the amount being compromised.
    (2) If the injured party or the injured party's attorney requests 
waiver or compromise of a medical care claim, a settlement authority 
may accept an amount less than the amount asserted to equitably 
apportion the available funds and avoid undue hard-ship to the injured 
party. To do so, the settlement authority must consider the fair value 
of the injured party's claim, the future value of care provided by the 
United States, and the potential recovery available. In evaluating a 
request, the settlement authority may consider an offer by the injured 
party's attorney to reduce his or her fee, but should not make this a 
condition for granting a request. Prior to approval of any compromise 
based on undue hardship, the injured party must provide the following 
information:
    (i) Detailed information on what funds are available for recovery.
    (ii) Reasonable value of the injured party's claim for permanent 
injury, pain and suffering, decreased earning power, and any other 
items of special damages.
    (iii) Military, VA, and Social Security disability, and any other 
Government benefits accruing to the injured party.
    (iv) Probability and amount of future medical expenses of the 
Government and the injured party.
    (v) Present and prospective assets, income, and obligations of the 
injured party and those dependent on him or her.
    (vi) A statement regarding the financial condition of the debtor.
    (c) Termination of collection action. If there are difficulties in 
recovering on a medical care or property damage claim (as defined by 4 
CFR part 104.3 of the Federal Claims Collection Standards), a 
settlement authority may close the claim without recovery for the 
convenience of the Government. Acceptable bases for terminating 
collection action include lack of legal merit to the claim, lack of 
evidence to substantiate the claim, costs of recovery which will exceed 
the amount recoverable, or inability to locate the debtor in instances 
where the likelihood of collection is too remote to justify retention 
of the file.
    (d) Waiver. If the injured party or the injured party's attorney 
requests waiver or compromise of the government's claim, a settlement 
authority may close a medical care claim without recovery where 
collection of any part of the government's claim will result in undue 
hardship to the injured party. Prior to granting a request for waiver, 
the settlement authority will consider the factors outlined in 
Sec. 536.229(b)(2) and require the injured party to provide the items 
listed in Sec. 536.229(b)(2) (i) thru (vii). Property damage claims 
cannot be ``waived.''


Sec. 536.230  Litigation.

    If a tortfeasor or insurer refuses to settle, or if an injured 
party's attorney improperly withholds funds, the RJA must consider 
litigation to protect the interests of the United States. Litigation is 
particularly appropriate if a particular insurer consistently refuses 
to settle claims, or if the Government's interests are not adequately 
represented on a large claim.
    (a) RJA's must maintain close contact with local U.S. Attorney's 
offices to ensure that these offices are willing to initiate litigation 
on cases. RJA's are encouraged to obtain appointments as Special 
Assistant U.S. Attorneys.
    (b) In order to directly initiate or intervene in litigation, an 
RJA must prepare a litigation report and formally refer the case 
through the Affirmative Claims Branch, USARCS and the Litigation 
Division, OTJAG (as required by AR 27-40, chapter 5) to the U.S. 
Attorney. While the RJA should attempt to initiate litigation well 
before the expiration of the statute of limitations, the RJA may 
contact USARCS telephonically if statute of limitations problems 
necessitate quick action on a case. The RJA should also contact USARCS 
if a U.S. Attorney is reluctant to pursue an important case. An injured 
party's attorney may represent the Government's interest in litigation 
without any special coordination.
    (c) The Department of Justice requires all cases involving damage 
to government property of $200,000 and under to go through the 
Department of Justice Central Intake Facility in Silver Spring, 
Maryland, before going to a United States attorney for litigation. 
Forward the agency referral package cover sheet and all documentation 
normally provided to the U.S. Attorney on all such cases to USARCS, 
which in turn will forward them to the Central Intake Facility through 
the Litigation Division, Office of the Judge Advocate General, as 
appropriate.


Sec. 536.231  Administrative matters.

    (a) Receipts. The RJA may provide a receipt for payment.
    (b) Releases. The RJA may execute a release acknowledging that the 
Government has received payment in full of the amount asserted or 
compromise amount agreed upon, or the final installment payment; and 
should try to use a release similar to the release printed as Figure 9-
1, DA Pam 27-162. The RJA may not, however, execute any kind of 
indemnity agreement, nor may the RJA execute a release which prejudices 
the Government's right to recover on other claims arising out of the 
same incident without the approval of the Chief, Personnel Claims and 
Recovery Division, USARCS. In addition, the RJA may not execute a 
release that purports to release any claim that the injured party may 
have other than for medical care furnished or to be furnished by the 
United States. The RJA will not execute a release if the Government's 
claim is waived or terminated.
    (c) Depositing property damage recovery. (1) For damage to 
appropriated fund property. Monies recovered for damage to appropriated 
fund property will be deposited to Account 21R3019 (Recoveries for 
Government Property Lost or Damaged).
    (2) For damage to NAFI property. Monies recovered for damage to 
NAFI property will be returned to the NAFI. If the NAFI no longer 
exists, forward the money to HQDA (DAAG-NAF), Alexandria, VA 22331-
0321. Checks should be made out to the NAFI, or, if it no longer 
exists, to the Army Morale, Welfare, and Recreation Fund.
    (3) For damage to Army Stock Fund or Defense Business Operations 
Fund property. Monies recovered for damage to property belonging to one 
of these funds will be returned to that fund unless the fund has 
charged the cost of repair or replacement to an appropriated fund 
account. The Defense Business Operations Fund replaced the Army 
Industrial Fund.
    (d) Depositing medical care recovery. (1) To an MTF account. CONUS 
and OCONUS claims offices and command claims services will deposit 
money recovered from an automobile insurer for medical care provided in 
an MTF on or after 5 November 1990 in the Operations & Maintenance 
account of the Army, Navy or Air Force MTF that provided the care. 
Offices will deposit money recovered from all types of automobile 
insurance, including liability insurance, to MTF accounts.
    (2) To the General Treasury. Money recovered directly from 
tortfeasors, from workers' compensation funds, from insurance other 
than automobile insurance (such as homeowner's insurance), from 
automobile insurers for care provided in an MTF prior to 5 November 
1990, or from automobile insurers for care provided in a civilian 
hospital will be deposited in the Miscellaneous Receipts Account, 
21R3210.
    (3) Apportioning medical care recovery between accounts. Only money 
recovered under the provisions of 10 U.S.C. 1095 can be deposited into 
an MTF account. Claims offices will often have to apportion money 
recovered among different accounts.
    (i) Apportioning money between MTF accounts and the General 
Treasury. Deposit money recovered from an automobile insurer for care 
provided prior to 5 November 1990 or provided in a civilian hospital to 
the General Treasury. Deposit money recovered for care provided in an 
MTF after that date to the MTF's account. If the amount recovered is 
less than the amount asserted, deposit money to the MTF's account 
first, and deposit any remaining money to the General Treasury.
    (ii) Apportioning money between two or more MTF accounts. If care 
was provided by two or more MTF's on or after 5 November 1990, and the 
claims office recovers less than the amount asserted, the claims office 
should give each MTF a pro rata share of the money recovered. For 
example, if MTF1 provided $2,000 worth of care and MTF2 provided $1,000 
worth of care, the claims office will deposit $800 of a $1,200 recovery 
to MTF1's account and the remaining $400 to MTF2's account.
    (e) Fiscal Integrity. Field claims offices must reconcile the 
property damage and medical care recovery accounts with their servicing 
finance and accounting offices. Field claims offices must ensure that 
their deposits have been credited to the proper accounts at least on a 
quarterly basis, and all accounts must be reconciled at the end of the 
fiscal year.

Subpart N--Claims Office Administration

Records and File Management


Sec. 536.232  Records.

    Unless otherwise required by this part, claims JAs and claims 
attorneys charged with the responsibility for claims administration 
will maintain only such current and temporary records as are required 
for the administration of claims activities and for the preparation of 
prescribed reports. Basic records for each claims office are--
    (a) DA Form 1667 (Claims Journal (Personnel) (Tort) (Affirmative) 
Claims). Journals will be individually maintained for personnel claims, 
for affirmative claims, and for tort and special claims, corresponding 
to the automated claims data management programs for such claims, using 
the April 1988 version of this form. Each event requiring entry in the 
journal will be recorded immediately upon receipt of information as to 
its occurrence. Use of the journal for personnel claims is optional, 
although modified use is highly recommended.
    (b) Automated claims data base. The automated claims data base will 
be used for all claims opened in fiscal year 1988 or later, and earlier 
year claims if they involve expenditures of funds in fiscal year 1988 
or later, as follows:
    (1) Tort and Special Claims Management data base (all offices);
    (2) Personnel Claims Management data base (all offices except COE 
claims offices).
    (3) Affirmative Claims Management data base (all offices except COE 
claims offices).
    (c) Investigative files. A claims office will maintain separate 
investigative files on potentially compensable events (PCE) for every 
incident which it (or a unit claims officer) has investigated, or has 
received a copy of a report of incident or report of investigation from 
a unit claims officer or any other source. Similar files will be 
maintained for incidents investigated by a claims office or other Army 
official that might give rise to an affirmative claim in favor of the 
Army. The investigative file will be merged into a claims file when a 
claim is filed or asserted. Investigative files not otherwise merged 
into a claims file will be retained until transferred to another Army 
claims office or until the time for filing a claim has expired.


Sec. 536.233  Arrangement of claims files.

    Instructions on the arrangement of claims files are found in 
Sec. 536.196 and in DA Pam 27-162. Every file for a claim against the 
United States must ultimately contain the following:
    (a) For files processed under the automated claims data management 
system, a printout (i.e., ``paper screen'') of the automated data 
pertaining to that claim.
    (b) If the claim has been paid in whole or in part, a copy of the 
settlement agreement, if any, and the certified copy of the paid 
voucher (comeback copy from the finance and disbursing office).
    (c) The action or recommendation.
    (d) The claim (initial and any amendment).
    (e) The report of claims officer, with exhibits.


Sec. 536.234  Disposition of claims files.

    (a) The Commander, USARCS, is the proper authority for post 
settlement review of claims against the United States. Claims having 
the following file numbers under AR 25-400-2 will be forwarded to 
USARCS (subject to the provisions of b and c below) for disposition 
under the regulation: 27-20a, 27-20g, 27-20h, 27-20i, 27-20j, or 27-
20q. Claims having other 27-20 file numbers will be disposed locally 
according to the instructions in AR 25-400-2.
    (b) Files of completed tort claims will not be forwarded to the 
Commander, USARCS prior to the expiration of any appeal period or the 
6-month period for filing suit, as applicable. The file of a tort claim 
in which an award that is final is not accepted by the claimant, within 
a reasonable time, will also be forwarded.
    (c) For personnel claims involving recovery action, claims files 
will be assembled and processed for local recovery action or forwarded 
for centralized recovery action in accordance with DA Pam 27-162, 
chapter 3, Secs. 536.195 and 536.196. After completion of final 
recovery action by field claims offices or command claims services such 
files will be forwarded to USARCS for retirement.
    (d) Files will be administratively closed as abandoned or withdrawn 
and forwarded to the Commander, USARCS, as provided herein.
    (1) Personnel claims. Claims under subpart K will be 
administratively closed as abandoned in the following situations:
    (i) The claimant affirmatively withdraws or abandons the claim 
prior to adjudication. Such files will contain evidence of the 
claimant's intention to do so, such as a letter from the claimant or a 
memorandum of a telephone conversation with the claimant.
    (ii) The claimant cannot be located to be paid or, if the claim is 
not fully substantiated, to have his or her intentions with regard to 
the claim ascertained (but, see paragraph (d)(1)(iv) of this section).
    (iii) For other reasons, final action on the claim cannot be taken.
    (iv) When a claimant has neither affirmatively abandoned nor fully 
substantiated a claim cognizable under subpart K, he or she should be 
directed by certified mail to provide the required substantiation 
within a specified period, usually 30 days. If correspondence is 
returned as undeliverable, and the claimant is an active duty service 
member, a current military address can usually be obtained from the 
Commander, U.S. Army Enlisted Records and Evaluation Center, Army 
Worldwide Locator Service, ATTN: PCRE-RF, Fort Benjamin Harrison, IN 
46249-5301. If the claimant fails to respond, to the extent that the 
claim is substantiated and meritorious it should be paid; otherwise, it 
should be disapproved.
    (2) Tort claims. Each file will contain evidence of claimant's 
intention to withdraw or abandon the claim, such as a letter or a 
memorandum for record of a telephone conversation with claimant.
    (i) Before apparently abandoned claims are forwarded to USARCS, a 
certified letter should be sent to the claimant requesting, his/her 
intentions within a specified period, usually 30 days. If no reply is 
received within a reasonable time, usually 30 days, the files may be 
closed and forwarded to USARCS, except as follows:
    (ii) Tort claims under subparts D, E and F. Additionally, a 
paragraph of the letter should state that failure to respond will 
result in the presumption that the claim is abandoned. Further, it 
should be stated that if the claimant is dissatisfied with the action 
taken, the claimant may file suit in an appropriate United States 
District Court no later than six months from the date of mailing of the 
letter, or the claimant's remedy will be forever barred.
    (iii) In tort claims under subpart C, the last paragraph should 
advise the claimant that failure to respond will result in the 
presumption that the claim is abandoned, and that if the claimant is 
dissatisfied with the action taken, the claimant has a right to appeal 
the action for a review and final decision. Further, it should be 
stated that the claimant only has 60 days to submit such an appeal.
    (iv) Only after each of the above actions has been completed, may a 
tort claim be considered to be abandoned, and be forwarded to USARCS 
for retirement. If correspondence to a claimant is returned as 
undelivered, and the claimant is an active duty service member, a 
current military address can usually be obtained from the Commander, 
U.S. Army Enlisted Records and Evaluation Center, Army Worldwide 
Locator Service, ATTN: PCRE-RF, Fort Benjamin Harrison, IN 46249-5301.


Sec. 536.235  Retrieval of claims files.

    (a) Field claims offices will occasionally have need of a file that 
has been sent to USARCS for centralized recovery or retirement (for 
example, action on a ``late'' reconsideration request). When requesting 
the return of a file from USARCS (either in writing or telephonically), 
the requesting office must provide--
    (1) The claim number.
    (2) The claimant's name.
    (3) The date the file was forwarded to USARCS.
    (4) The name of the TGBL carrier (if the claim was a household 
goods or holdbaggage shipment claim).
    (5) Whether the file was forwarded for retirement or centralized 
recovery.
    (6) The reason the file is being requested.
    (b) If USARCS has already acted on a request for reconsideration on 
a personnel claim, the file will not be returned to a field office for 
action on a second request for reconsideration. In such cases, the 
request will be sent to USARCS for action.


Sec. 536.236  Certified and registered mail.

    Correspondence to claimants and/or their attorneys denying or 
making final offers in tort claims under subparts C, D, E, F, G, H, and 
L or the transmittal of an abandonment notice will be accomplished by 
certified or registered mail, return receipt requested. The return 
receipt (green card), upon its return to the claims office, will be 
retained as a part of the claims file as proof of receipt by the 
claimant or other addressee.


Sec. 536.237  Maintenance of claims files.

    (a) The contents of each claim file for claims against the United 
States will be placed in a standard 9\1/4\ inch by 11\3/4\ inch manila 
folder. The name of the claimant, exactly as entered into the automated 
claims management data base, will be placed on the top-left portion of 
the file folder. The complete nine-digit computer-generated claim 
number displayed in the automated database will be placed on the 
extreme top right-hand side of the folder. The fiscal year, office 
code, and claim sequence number will be separated by a dash mark 
(example, ``88-011-0079''). Both name and claim file number entries on 
the manila file folder will be printed legibly in blue-black ink. The 
claim file should be stapled together before inserting in the file 
folder; however, the file need only be placed in the folder without 
stapling to the file folder.
    (b) Investigative files will also be maintained in manila folders. 
The date of the incident and general descriptive data (for example, ``1 
Jul 86/auto accident (1st and Elm, Smallville)'' or ``24 Sep 86/heart 
operation (Jones, John M.)'') will be placed on top-left portion of the 
file folder.
    (c) AR 25-400-2 requires labeling of file folders and containers 
with specific information. In complying therewith, the following 
guidance is provided:
    (1) Only the ``dummy'' or ``lead'' folder will contain the 
disposition instructions required by AR 25-400-2, for files that have a 
common disposition.
    (2) When labeling individual file folders, only the information 
required by AR 25-400-2 will be typed on the label. The label will be 
placed on the top center portion of the folder. Under no circumstances 
will the information concerning the claim (see paragraph (a) of this 
section) be placed on this label.

Monthly Claims Reporting System


Sec. 536.238  General.

    (a) The Personnel Claims Management Program, the Affirmative Claims 
Management Program, and the Tort and Special Claims Management Program 
are the automated programs which generate a monthly status report on 
claims against the United States and recovery actions. Specific 
instructions pertaining to the USARCS Claims Automation Program are 
contained in DA PAM 27-162, chapter 1 and in documentation provided 
with the automation software.
    (b) The data contained in the USARCS Claims Automation Program and 
the monthly claims office status reports generated by the automation 
software provide the data necessary to make sound management decisions 
by claims officers, by heads of area claims offices, by SJAs 
responsible for OCONUS command claims services, and by the Commander, 
USARCS. The system provides a uniform method of assignment of claim 
file numbers to permit identification and retrieval of individual claim 
files, identifies delay in claims processing, and permits worldwide 
management control of all claims against the Government. The automated 
monthly reports forwarded to USARCS provide the data base used for the 
preparation of claims budgetary status reports and periodic budget 
estimates to the USAFAC as well as to the Office of the Assistant 
Secretary of the Army (Financial Management). It is the responsibility 
of all claims office personnel to ensure that automated claims records 
are complete and accurate.
    (c) This section does not apply to the reporting of reimbursement 
obligations to foreign countries pursuant to the NATO-SOFA or other 
similar treaties or agreements.
    (d) The Commander, USARCS, will furnish software and documentation 
for the Personnel Claims Management Program, the Affirmative Claims 
Management Program, and the Tort and Special Claims Management Program, 
with updated versions as required. These are the only programs 
authorized for recording and reporting claims in the Army Claims 
System. Local modification of these programs is not authorized.


Sec. 536.239  Reporting requirements.

    The head of each area claims office and command claims service will 
ensure that a monthly computer-generated claims report is prepared for 
each claims office with an office code within his or her area of 
responsibility and for each Foreign Claims Commission using the 
automation programs provided by USARCS. The report(s) (tort claims 
only) and diskettes containing current claims data base(s) (for all 
programs) will be posted to USARCS by the fifth calendar day of the 
month. In addition, a copy of any archive disk prepared during the 
reporting period will be forwarded for processing. Whenever possible, 
the data should be sent using a modem or other electronic data transfer 
system. Claims offices under the jurisdiction of a command claims 
service will forward their report(s) and diskettes through the command 
claims service and will comply with any additional reporting 
requirements of the command claims service. Diskettes must be marked 
with the office name, the office code, the type of claim record, the 
disk sequence number, the month and year, and the data base file 
name(s) contained in the diskette (for example, Fort Blank, 001, Tort 
Claims, 1 of 1, Mar 89, T9000103.1DB). Detailed instructions on the 
preparation of the monthly automated claims report and claims data 
diskettes are contained in DA PAM 27-162, chapter 12 and program 
documentation. If there are no changes from the previous month in the 
Affirmative Claims reports, the Personnel Claims report, or the Tort 
and Special Claims report, a negative report will be submitted within 
the stated time guidelines.


Sec. 536.240  Error reports.

    USARCS will provide field claims offices with monthly error reports 
listing claims records that cannot be loaded into the USARCS data base 
due to data entry errors or omissions. Errors listed on the error 
reports must be corrected as soon as possible; resubmission of the 
corrected claims records will occur at the time of the next regular 
monthly reporting cycle.


Sec. 536.241  Preparation.

    (a) Reporting. Quarterly, each command claims service or office 
authorized to assert affirmative claims will submit a copy of the 
``Previous Three Months'' report generated by the Affirmative Claims 
Management Program to USARCS, ATTN: JACS-PCA. Command claims services 
and offices will identify these reports by quarter and fiscal year 
(i.e., ``1st Qtr, FY 93'') and forward them so that they arrive not 
later than the 7th calendar day of every quarter (i.e., 7 January, 7 
April, 7 July, and 7 October each year). Offices authorized to assert 
affirmative claims which have no affirmative claims activity in a given 
quarter will forward negative reports.
    (b) Routing. Area claims offices and claims processing offices will 
forward these reports directly to USARCS through the senior Judge 
Advocate in the office, for example, the SJA. Claims processing offices 
will forward an additional copy to their area claims offices.
    (c) Special preparation instructions. Offices may manually correct 
any errors in the computer generated report using the following 
guidelines:
    (1) Claims first asserted in an indefinite amount will be reported 
in the period in which a reasonably accurate figure can first be 
determined.
    (2) When reporting the number of claims collected during the report 
period, only the first collection will be counted for claims in which 
payments are received in installments.
    (3) When reporting the total dollar amount collected during the 
reporting period, include any installments. The dollar value of any 
replacement or property repair should be included in the total with the 
replacement or repair value portion noted.

Management of Claims Expenditure Allowance (CEA)


Sec. 536.242  General.

    Each claims settlement or approval authority which is furnished a 
CEA by the USARCS budget office is responsible for managing that CEA. 
This includes knowing at all times how much of the CEA has been 
obligated, the remaining balance and a monthly assessment of whether 
the balance will cover claims obligation needs in the local office for 
the remainder of the current fiscal year.


Sec. 536.243  CEA reporting requirements.

    (a) Each CONUS claims office having a CEA and command claims 
services will submit, to arrive not later than the 7th calendar day of 
every month, a report to USARCS, ATTN: JACS-BI, that includes the 
following:
    (1) The office code of the reporting office.
    (2) Dollars obligated for personnel and tort claims during the 
prior month and the number of personnel and tort claims paid.
    (3) Dollars obligated for personnel and tort claims fiscal year to 
date (through the end of the prior month) and the total number of 
personnel and tort claims paid fiscal year to date.
    (4) Dollars deposited during the prior month.
    Note: Ensure that the report of dollars deposited for the month 
and year to date includes only funds deposited is one of the claims 
appropriation accounts. Do not include money recovered through the 
affirmative claims program and deposited with miscellaneous receipts 
of the U.S. Treasury.)
    (5) Dollars deposited year to date through prior month. (See note 
at paragraph (a)(4) of this section.)
    (b) The report submitted at the beginning of August every year will 
also include the following:
    (1) The total CEA furnished to that office up to that time (initial 
CEA plus or minus any changes).
    (2) The CEA balance.
    (3) The amount the office expects to be able to obligate in the 
remaining 2 months of the fiscal year if sufficient funds are 
available.
    (4) The expected surplus or shortfall.
    (5) A proposed CEA for the next fiscal year and the rationale for 
any unusual increases.
    (c) Reports may be submitted telephonically or by facsimile.


Sec. 536.244  Solatia payment.

    Payment of solatia in accordance with local custom as an expression 
of sympathy toward a victim or his or her family is common in overseas 
commands (see DA PAM 27-162, chapter 8). Such payments are not to be 
made from the claims CEA. These payments are made from local operation 
and maintenance funds pursuant to directives established by the 
appropriate commander for the country concerned. This applies even 
where a command claims service is directed to administer the command's 
solatia program.

Appendix A to Part 536--References

    Publications and forms referenced in this Appendix may be 
obtained from the National Technical Information Services, U.S. 
Department of Commerce, 5285 Port Royal Road, Springfield, VA 22161.

Required Publications

    A required publication is a publication that the reader must 
have to understand the subject.

AR 15-6--Procedures for Investigating Officers and Boards of 
Officers
AR 27-40--Litigation
DA Pam 27-162--Claims
DOD 4500.34-R--Personal Property Traffic Management Regulation

Related Publications

    A related publication is merely a source of additional 
information. The user does not have to read it to understand this 
regulation.

AFARS--Army Federal Acquisition Regulation Supplement
AR 1-75--Administrative and Logistical Support of Overseas Security 
Assistance Organizations
AR 10-72--Field Operating Agencies of the Judge Advocate General
AR 25-400-2--The Modern Army Recordkeeping System (MARKS)
AR 27-3--Legal Assistance
AR 27-60--Patents, Inventions, and Copyrights
AR 37-100--Account/Code Structure
AR 37-103--Disbursing Operations for Finance and Accounting Offices
AR 37-104-3--Military Pay and Allowances Procedures: Joint Uniform 
Military Pay System Army (JUMP-ARMY)
AR 37-104-10--Military Pay and Allowance Procedures for Reserve 
Components of the Army
AR 37-107--Accounts Payable
AR 37-108--General Accounting and Reporting for Finance and 
Accounting Offices
AR 40-1--Composition, Mission, and Functions of the Army Medical 
Department
AR 40-3--Medical, Dental, and Veterinary Care
AR 40-16--Special Notification-Injury Cases
AR 40-66--Medical Record and Quality Assurance Administration
AR 40-121--Uniformed Services Health Benefits Program
AR 55-19--Marine Casualties
AR 55-80--Highways for National Defense
AR 60-20--Army and Air Force Exchange Service (AAFES) Operating 
Policies
AR 190-9--Military Absentee and Deserter Apprehension Program
AR 190-22--Searches, Seizures and Disposition of Property
AR 215-1--Administration of Army Morale, Welfare, and Recreation 
Activities and Nonappropriated Fund Instrumentalities.
AR 215-2--The Management and Operation of Army Morale, Welfare, and 
Recreation Activities and Nonappropriated Fund Instrumentalities
AR 335-15--Management Information Control System
AR 340-17--Release of Information and Records from Army Files
AR 340-21--The Army Privacy Program
AR 405-15--Real Estate Claims Founded Upon Contract
AR 600-8-1--Army Casualty and Memorial Affairs and Line of Duty 
Investigations
AR 608-10--Child Development Services
AR 735-5--Basic Policies and Procedures for Property Accounting
DODD 5220.6--Defense Industrial Personnel Security Clearance Review 
Program
DODD 5515.3--Settlement of Claims Under 10 U.S.C. 2733 and 2743, as 
amended
DODD 5515.8--Single Service Assignment of Responsibility for 
Processing of Claims
DODD 5515.10--Settlement and Payment of Claims Under the Military 
Personnel and Civilian Employee Claims Act of 1964
DODD 6000.6--Medical Malpractice Claims Against Military and 
Civilian Personnel of the Armed Forces
DODD 7045.13--DOD Credit Management and Debt Collection Program
DOD Manual 4525.6-M--DOD Postal Manual
FAR--Federation Acquisition Regulation
JTR--Joint Travel Regulations

Prescribed Forms

DA Form 1208--Report Of Claims Officer
DA Form 1666--Claims Settlement Agreement
DA Form 1667--Claims Journal for (Personnel) (Tort) (Affirmative) 
Claims
DA Form 1668--Small Claims Certificate
DA Form 2938-R--Affirmative Claims Report
DD Form 1840--Notice of Loss or Damage
DD Form 1840R--Notice of Loss or Damage
DD Form 1841--Government Inspection Report
DD Form 1842--Claim for Loss of or Damage to Personal Property 
Incident to Service
DD Form 1843--Demand on Carrier/Contractor
DD Form 1844--List of Property and Claims Analysis Chart
DD Form 2526--Case Abstract for Malpractice Claims
Standard Form 95--Claims for Damage, Injury or Death
Standard Form 1034--Public Voucher for Purchases and Services Other 
than Personal
Standard Form 1145--Voucher for Payment Under Federal Tort Claims 
Act

Referenced Forms

DA Form 1863-1--Services and/or Supplies Provided by Civilian 
Hospitals
DA Form 2135-R--Receipt for Payment (LRA)
DA Form 2631-R--Medical Care-Third Party Liability Notification 
(LRA)
DA Form 2985--Admission and Coding Information
DA Form 3154--MSA Invoice and Receipt
DD Form 619-1--Statement of Accessorial Services Performed
DD Form 1164--Service Order for Personal Privacy
DD Form 1348-1--DOD Single Line Item Release/Receipt Document
Standard Form 1049--Public Voucher for Refunds

Appendix B to Part 536--Glossary

Abbreviations

AAFES--Army-Air Force Exchange Service
ADP--automated data processing
AFARS--Army Federal Acquisition Regulation Supplement
ALR--American Law Reports
ARNG--Army National Guard
AWOL--absent without leave
CHAMPUS--Civilian Health and Medical Program of the Uniform Services
CMCHS--Civilian-Military Contingency Hospital System
COE--Chief of Engineers
CONUS--continental United States
DA--Department of Army
DOD--Department of Defense
FAR--Federal Acquisition Regulation
FCA--Foreign Claims Act
FCC--family child care
FECA--Federal Employees Compensation Act
FTCA--Federal Tort Claims Act
GAO--Government Accounting Office
GBL--Government bill of lading
GSA--General Services Administration
ITGBL--international through Government bill of lading
JA--judge advocate
JTR--Joint Travel Regulations
MAAG--Military Assistance and Advisory Group
MACOM--major Army command
MCA--Military Claims Act
NATO--North Atlantic Treaty Organization
NG--National Guard
NGB--National Guard Bureau
NGCA--National Guard Claims Act
NTS--nontemporary storage
POV--privately owned vehicle
PPGBL--personal property Government bill of lading
RCP--replacement cost protection
RIMP--risk management program
RJA--recovery judge advocate
ROTC--Reserve Officer's Training Corps
SJA--staff judge advocate
SOFA--Status of Forces Agreement
SPCMCA--special court-martial convening authority
TAJAG--The Assistant Judge Advocate General
TDA--table of distribution and allowances
TDY--temporary duty
TGBL--through Government bill of lading
TJAG--The Judge Advocate General
UCMJ--Uniform Code of Military Justice
USAFAC--U.S. Army Finance and Accounting Center
USAR--U.S. Army Reserve
USARCS--U.S. Army Claims Service
USAREUR--U.S. Army, Europe
USARSO--U.S. Army South
VA--Department of Veterans Affairs
WESTCOM--U.S. Army Western Command

Terms

Affirmative Claims

    The Government's statutory right to recover money, property, or 
repayment in kind incurred as a result of property loss, damage, or 
destruction by any individual, partnership, association, or other 
legal entity, foreign or domestic, except an instrumentality of the 
United States. Also, the Government's statutory right to recover the 
reasonable medical costs expended for hospital, medical, surgical, 
or dental care and treatment (including prostheses and medical 
appliances) incurred under circumstances creating tort liability 
upon some third person.

Civilian employee

    A person whose activities the Government has the right to direct 
and control, not only as to the result to be accomplished but also 
as the means used. This includes, but is not limited to, full-time 
Federal civilian officers and employees. This term should be 
distinguished from ``independent contractor'' for whose actions the 
Government generally is not liable. The decision as to who is a 
civilian employee is a Federal question determined under Federal, 
not under local law.

Claim

    A demand for payment of a specified sum of money (other than the 
ordinary obligations incurred for services, supplies, or equipment) 
and, unless otherwise specified in this regulation, in writing and 
signed by the claimant or a properly designated representative.

Claim file

    A file containing the report of the claims officer or other 
report of investigation, supporting documentations, and pertinent 
correspondence.

Claim approval authority

    Except for claims under subpart G, I, and K and subject to any 
limitations found in specific provisions of this regulation, the 
authority to approve and pay a claim in the amount presented or in a 
lesser amount upon the execution of a settlement agreement by the 
claimant. Under subpart K the authority of a designated Government 
agent to adjudicate and pay a claim in a meritorious amount within 
the monetary limits prescribed in that subpart. A person with 
approval authority may not disapprove a claim in its entirety or to 
make a final offer subject to any limitations found in specific 
provisions of this regulation.

Claim settlement authority

    The authority to approve a claim, deny a claim in its entirety, 
or make a final offer subject to any limitations found in specific 
provisions of this regulation.

Claims attorney

    A DA or DOD civilian attorney assigned to a judge advocate or 
legal office who has been designated by the Commander, U.S. Army 
Claims Service.

Claims judge advocate

    An officer of the Judge Advocate General's Corp designated by a 
command or staff judge advocate to be in immediate charge of claims 
activities of the command.

Claims officer

    A commissioned officer, warrant officer, or qualified civilian 
employee detailed by the commander of an installation or unit who is 
trained or experienced in the investigation of claims.

Claimant

    An individual, partnership, association, corporation, country, 
state, territory, or other political subdivision of such country. It 
does not include the U.S. Government or any of its 
instrumentalities, except as prescribed by statute. Indian tribes 
are not proper party claimants but individual Indians can be 
claimants.

Combat activities

    Activities resulting directly or indirectly from action by the 
enemy, or by the U.S. Armed Forces engaged in, or in immediate 
preparation for, impending armed conflict.

Disaster

    A sudden and extraordinary calamity occasioned by activities of 
the Army, other than combat, resulting in extensive civilian 
property damage or personal injuries and creating a large number of 
potential claims.

Federal agency

    A Federal agency includes executive departments and independent 
establishments of the United States and corporations acting as 
instrumentalities or agencies of the United States but does not 
include any contractor with the United States.

Final offer

    An offer of payment by a settlement authority in full and final 
settlement of a claim which, if not accepted, constitutes a final 
action for purposes of filing suit under subpart D or filing an 
appeal under subpart C or F provided such offer is made in writing 
and meets the other requirements of a final action as set forth in 
this regulation.

Government vehicle

    A vehicle owned or on loan to any agency of the U.S. Government, 
or privately owned and operated by a member or civilian employee of 
the Army in the scope of his or her office or employment with the 
U.S. Government, including vehicles being operated on joint 
operations of the U.S. Armed Forces.

Medical claims judge advocate

    A judge advocate assigned to an Army Medical Center, under an 
agreement between The Judge Advocate General and The Surgeon 
General, to perform the primary duty of investigating and processing 
medical malpractice claims.

Medical claims investigator

    A senior legal specialist or qualified civilian assigned to 
assist a medical claims judge advocate on a full-time basis. A 
medical claims investigator is authorized to administer oaths under 
the provisions of Article 136(b)(7), Uniform Code of Military 
Justice, when performing his or her investigative duties.

Medical malpractice claim

    A claim arising out of substandard or inadequate care of an Army 
patient.

Military personnel

    Members of the Army on active duty for training or inactive duty 
training as defined in AR 310-25 and 10 U.S.C. 101(22), 101(23), and 
101(30). This includes members of the District of Columbia Army 
National Guard while performing active duty or training under 32 
U.S.C. 316, 502, 503, 504, or 505.

Noncombat activities

    Authorized activities essentially military in nature, having 
little parallel in civilian pursuits, and which historically have 
been considered as furnishing a proper basis for payment of claims. 
Examples are practice firing of missiles and weapons, training and 
field exercises, and maneuvers which include the operation of 
aircraft and vehicles, use and occupancy of real estate, and 
movement of combat or other vehicles designed especially for 
military use. Activities excluded are those incident to combat, 
whether in time of war or not, and use of military personnel and 
civilian employees in connection with civil disturbances.

Personal property

    Property consisting solely of corporeal personal property, that 
is, tangible things.
Kenneth L. Denton,
Army Federal Register Liaison Officer.
[FR Doc. 94-29167 Filed 12-9-94; 8:45 am]
BILLING CODE 3710-08-M