[Federal Register Volume 71, Number 155 (Friday, August 11, 2006)]
[Proposed Rules]
[Pages 46260-46303]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6789]



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Part II





Department of Defense





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Department of the Army



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32 CFR Part 536



Claims Against the United States; Proposed Rule

Federal Register / Vol. 71, No. 155 / Friday, August 11, 2006 / 
Proposed Rules

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DEPARTMENT OF DEFENSE

Department of the Army

32 CFR Part 536

RIN 0702-AA54
[Docket No. USA-2006-0022]


Claims Against the United States

AGENCY: Department of the Army, DOD.

ACTION: Proposed rule; request for comments.

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SUMMARY: The Department of the Army proposes to amend its regulations 
to reflect a substantial revision of AR 27-20, an Army publication 
which governs the processing of claims worldwide. The purpose of this 
revision is to make AR 27-20 clearer and easier to use, after years of 
piecemeal amendments. This rewrite also ensures that AR 27-20 is in 
keeping with current statutes, legal opinions and Department of Justice 
guidance pertaining to claims processing. This updated rule will 
expedite payment of meritorious claims throughout the world.

DATES: Comments submitted on or before October 10, 2006 will be 
considered.

ADDRESSES: You may submit comments, identified by ``32 CFR part 536, 
Docket No. USA-2006-0022 and or RIN 0702-AA54'' in the subject line, by 
any of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Mail: Federal Docket Management System Office, 1160 
Defense Pentagon, Washington, DC 20301-1160.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
Federal Register document. The general policy for comments and other 
submissions from members of the public is to make these submissions 
available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any 
personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: George Westerbeke (301) 677-7009, 
x220.

SUPPLEMENTARY INFORMATION: 

A. Background

    This rule was previously published. The Administrative Procedure 
Act, as amended by the Freedom of Information Act requires that certain 
policies and procedures and other information concerning the Department 
of the Army be published in the Federal Register. The policies and 
procedures covered by this regulation fall into that category.
    AR 27-20 and its companion DA Pam 27-162 will be available on the 
Web site of the U.S. Army Publications Directorate, http://www.apd.army.mil, within a few months of the date of this Federal 
Register publication of 32 CFR part 536. Users are encouraged to 
consult the online versions, whose structure and paragraph numbering 
are comparable.

B. Regulatory Flexibility Act

    The Department of the Army has determined that the Regulatory 
Flexibility Act does not apply because the proposed rule does not have 
a significant economic impact on a substantial number of small entities 
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612.

C. Unfunded Mandates Reform Act

    The Department of the Army has determined that the Unfunded 
Mandates Reform Act does not apply because the proposed rule does not 
include a mandate that may result in estimated costs to State, local or 
tribal governments in the aggregate, or the private sector, of $100 
million or more.

D. National Environmental Policy Act

    The Department of the Army has determined that the National 
Environmental Policy Act does not apply because the proposed rule does 
not have an adverse impact on the environment.

E. Paperwork Reduction Act

    The Department of the Army has determined that the Paperwork 
Reduction Act does not apply because the proposed rule does not involve 
collection of information from the public.

F. Executive Order 12630 (Government Actions and Interference With 
Constitutionally Protected Property Rights)

    The Department of the Army has determined that Executive Order 
12630 does not apply because the proposed rule does not impair private 
property rights.

G. Executive Order 12866 (Regulatory Planning and Review)

    The Department of the Army has determined that according to the 
criteria defined in Executive Order 12866 this proposed rule is not a 
significant regulatory action. As such, the proposed rule is not 
subject to Office of Management and Budget review under section 6(a)(3) 
of the Executive Order.

H. Executive Order 13045 (Protection of Children From Environmental 
Health Risk and Safety Risks)

    The Department of the Army has determined that according to the 
criteria defined in Executive Order 13045 this proposed rule does not 
apply.

I. Executive Order 13132 (Federalism)

    The Department of the Army has determined that according to the 
criteria defined in Executive Order 13132 this proposed rule does not 
apply because it will not have a substantial effect on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.

Col. Dale Woodling,
Commander, United States Army Claims Service.

List of Subjects in 32 CFR Part 536

    Claims, Government employees, Military personnel.

    For reasons stated in the preamble the Department of the Army 
proposes to revise 32 CFR part 536 to read as follows:

PART 536--CLAIMS AGAINST THE UNITED STATES

Subpart A--The Army Claims System
Sec.
536.1 Purpose of the Army Claims System.
536.2 Claims authorities.
536.3 Command and organizational relationships.
536.4 Designation of claims attorneys.
536.5 The Judge Advocate General.
536.6 The Army claims mission.
536.7 Responsibilities of the Commander USARCS.
536.8 Responsibilities and operations of command claims services.
536.9 Responsibilities and operations of area claims offices.
536.10 Responsibilities and operations of claims processing offices.
536.11 Chief of Engineers.
536.12 Commanding General, U.S. Army Medical Command.
536.13 Chief, National Guard Bureau.
536.14 Commanders of major Army commands.
536.15 Claims policies.
536.16 Release of information policies.
536.17 Single-service claims responsibility (DODD 5515.8 and DODD 
5515.9).
536.18 Cross-servicing of claims.
536.19 Disaster claims planning.
536.20 Claims assistance visits.
536.21 Annual claims award.

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Subpart B--Investigation and Processing of Claims
536.22 Claims investigative responsibility--general.
536.23 Identifying claims incidents both for and against the 
government.
536.24 Delegation of investigative responsibility.
536.25 Procedures for accepting claims.
536.26 Identification of a proper claim.
536.27 Identification of a proper claimant.
536.28 Claims acknowledgment.
536.29 Revision of filed claims.
536.30 Action upon receipt of claim.
536.31 Opening claim files.
536.32 Transfer of claims among armed services branches.
536.33 Use of small claims procedures.
536.34 Determination of correct statute.
536.35 Unique issues related to environmental claims.
536.36 Related remedies.
536.37 Importance of the claims investigation.
536.38 Elements of the investigation.
536.39 Use of experts, consultants and appraisers.
536.40 Conducting the investigation.
536.41 Determination of liability--generally.
536.42 Constitutional torts.
536.43 Incident to service.
536.44 FECA and LSHWCA claims exclusions.
536.45 Statutory exceptions.
536.46 Other exclusions.
536.47 Statute of limitations.
536.48 Federal employee requirement.
536.49 Scope of employment requirement.
536.50 Determination of damages--applicable law.
536.51 Collateral source rule.
536.52 Subrogation.
536.53 Evaluation of claims--general rules and guidelines.
536.54 Joint tortfeasors.
536.55 Structured settlements.
536.56 Negotiations--purpose and extent.
536.57 Who should negotiate.
536.58 Settlement negotiations with unrepresented claimants.
536.59 Settlement or approval authority.
536.60 Splitting property damage and personal injury claims.
536.61 Advance payments.
536.62 Action memorandums.
536.63 Settlement agreements.
536.64 Final offers.
536.65 Denial notice 536.66 The ``Parker'' denial.
536.67 Mailing procedures.
536.68 Appeal or reconsideration.
536.69 Retention of file.
536.70 Preparation and forwarding of payment vouchers.
536.71 Fund sources.
536.72 Finality of settlement.
Subpart C--Claims Cognizable Under the Military Claims Act
536.73 Statutory authority for the Military Claims Act.
536.74 Scope for claims under the Military Claims Act.
536.75 Claims payable under the Military Claims Act.
536.76 Claims not payable under the Military Claims Act.
536.77 Applicable law for claims under the Military Claims Act.
536.78 Settlement authority for claims under the Military Claims 
Act.
536.79 Action on appeal under the Military Claims Act.
536.80 Payment of costs, settlements, and judgments related to 
certain medical malpractice claims.
536.81 Payment of costs, settlements, and judgments related to 
certain legal malpractice claims.
536.82 Reopening an MCA claim after final action by a settlement 
authority.
Subpart D--Claims Cognizable Under the Federal Tort Claims Act
536.83 Statutory authority for the Federal Tort Claims Act.
536.84 Scope for claims under the Federal Tort Claims Act .
536.85 Claims payable under the Federal Tort Claims Act.
536.86 Claims not payable under the Federal Tort Claims Act.
536.87 Applicable law for claims under the Federal Tort Claims Act.
536.88 Settlement authority for claims under the Federal Tort Claims 
Act.
536.89 Reconsideration of Federal Tort Claims Act claims.
Subpart E--Claims Cognizable Under the Non-Scope Claims Act
536.90 Statutory authority for the Non-Scope Claims Act.
536.91 Scope for claims under the Non-Scope Claims Act.
536.92 Claims payable under the Non-Scope Claims Act.
536.93 Claims not payable under the Non-Scope Claims Act.
536.94 Settlement authority for claims under the Non-Scope Claims 
Act.
536.95 Reconsideration of Non-Scope Claims Act claims.
Subpart F--Claims Cognizable Under the National Guard Claims Act
536.96 Statutory authority for the National Guard Claims Act.
536.97 Scope for claims under the National Guard Claims Act.
536.98 Claims payable under the National Guard Claims Act.
536.99 Claims not payable under the National Guard Claims Act.
536.100 Applicable law for claims under the National Guard Claims 
Act.
536.101 Settlement authority for claims under the National Guard 
Claims Act.
536.102 Actions on appeal under the National Guard Claims Act.
Subpart G--Claims Cognizable Under International Agreements
536.103 Statutory authority for claims cognizable under 
international claims agreements.
536.104 Current agreements in force.
536.105 Responsibilities generally/international agreements claims.
536.106 Definitions for international agreements claims.
536.107 Scope for international agreements claims arising in the 
United States.
536.108 Claims payable under international agreements (for those 
arising in the United States).
536.109 Claims not payable under international agreements (for those 
arising in the United States).
536.110 Notification of incidents arising under international 
agreements (for claims arising in the United States).
536.111 Investigation of claims arising under international 
agreements (for those claims arising in the United States).
536.112 Settlement authority for claims arising under international 
agreements (for those claims arising in the United States).
536.113 Assistance to foreign forces for claims arising under 
international agreements (as to claims arising in the United 
States).
536.114 Scope for claims arising overseas under international 
agreements.
536.115 Claims procedures for claims arising overseas under 
international agreements.
536.116 Responsibilities as to claims arising overseas under 
international agreements.
Subpart H--Maritime Claims
536.117 Statutory authority for maritime claims.
536.118 Related statutes for maritime claims.
536.119 Scope for maritime claims.
536.120 Claims payable as maritime claims.
536.121 Claims not payable as maritime claims.
536.122 Limitation of settlement of maritime claims.
536.123 Limitation of liability for maritime claims.
536.124 Settlement authority for maritime claims.
Subpart I--Claims Cognizable Under Article 139, Uniform Code of 
Military Justice
536.125 Statutory authority for Uniform Code of Military Justice 
(UCMJ) claims.
536.126 Purpose of UCMJ claims.
536.127 Proper claimants; unknown accused--under the UCMJ.
536.128 Effect of disciplinary action, voluntary restitution, or 
contributory negligence for claims under the UCMJ.
536.129 Claims cognizable as UCMJ claims.
536.130 Claims not cognizable as UCMJ claims.
536.131 Limitations on assessments arising from UCMJ claims.
536.132 Procedure for processing UCMJ claims.
536.133 Reconsideration of UCMJ claims .
536.134 Additional claims judge advocate and claims attorney 
responsibilities (for UCMJ claims).
Subpart J--Claims Cognizable Under the Foreign Claims Act
536.135 Statutory authority for the Foreign Claims Act.
536.136 Scope for claims arising under the Foreign Claims Act.
536.137 Claims payable under the Foreign Claims Act.

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536.138 Claims not payable under the Foreign Claims Act.
536.139 Applicable law for claims under the Foreign Claims Act.
536.140 Appointment and functions of Foreign Claims Commissions.
536.141 Composition of Foreign Claims Commissions.
536.142 Qualification of members of Foreign Claims Commissions.
536.143 Settlement authority of Foreign Claims Commissions.
536.144 Reopening a claim after final action by a Foreign Claims 
Commission.
536.145 Solatia payment.
Subpart K--Nonappropriated Fund Claims
536.146 Claims against nonappropriated fund employees--generally.
536.147 Claims by NAFI employees for losses incident to employment.
536.148 Claims generated by the acts or omissions of NAFI employees.
536.149 Identification of persons whose actions may generate 
liability.
536.150 Claims payable from appropriated funds.
536.151 Settlement authority for claims generated by acts or 
omissions of NAFI employees.
536.152 Payment of claims generated by acts or omissions of NAFI 
employees.
536.153 Claims involving tortfeasors other than nonappropriated fund 
employees: NAFI contractors.
536.154 Claims involving tortfeasors other than nonappropriated fund 
employees: NAFI risk management program (RIMP) claims.
536.155 Claims payable involving tortfeasors other than 
nonappropriated fund employees.
536.156 Procedures for claims involving tortfeasors other than 
nonappropriated fund employees.
536.157 Settlement/approval authority for claims involving 
tortfeasors other than nonappropriated fund employees.

    Authority: 10 U.S.C. 2733; 10 U.S.C. 1089; 10 U.S.C. 1054; 28 
U.S.C. 1291, 2401-2402, 2411-2412, 2671-2680; 10 U.S.C. 2737; 32 
U.S.C. 715; 10 U.S.C. 2734a, 2734b; 10 U.S.C. 2734;10 U.S.C. 4801, 
4802, 4806; 46 U.S.C. app. 740; 39 U.S.C. 411; 10 U.S.C. 939; 10 
U.S.C. 2736; 10 U.S.C. 2735; 10 U.S.C. 2731.

PART 536--CLAIMS AGAINST THE UNITED STATES

Subpart A--The Army Claims System


Sec.  536.1  Purpose of the Army Claims System.

    This part sets forth policies and procedures that govern the 
investigating, processing, and settling of claims against, and in favor 
of, the United States under the authority conferred by statutes, 
regulations, international and interagency agreements, and Department 
of Defense Directives (DODDs). It is intended to ensure that claims are 
investigated properly and adjudicated according to applicable law, and 
valid recoveries and affirmative claims are pursued against carriers, 
third-party insurers, and tortfeasors.


Sec.  536.2  Claims authorities.

    (a) General. Claims cognizable under the following list of statutes 
and authorities are processed and settled under DA Pam 27-162 and this 
part. All of these materials may be viewed on the USARCS Web site, 
https://www.jagcnet.army.mil/85256F33005C2B92/(JAGCNETDocID)/
HOME?OPENDOCUMENT. Select the link ``Claims Resources.''
    (1) Tort Claims. (i) The Military Claims Act (MCA), 10 United 
States Code (U.S.C.) 2733 (see Subpart C of this part). The ``incident-
to-service'' provision, applicable to both military and civilian 
personnel of the Department of Defense, is contained in the MCA.
    (ii) The Gonzales Act, 10 U.S.C. 1089. This act permits individual 
suits against health care providers for certain torts (see Sec.  
536.80).
    (iii) Certain suits arising out of legal malpractice, 10 U.S.C. 
1054, discussed at Sec.  536.81 and at DA Pam 27-162, paragraph 2-62f.
    (iv) The Federal Tort Claims Act (FTCA), 28 U.S.C. 1291, 1402, 
2401-2402, 2411-2412, and 2671-2680 (see Subpart D of this part). The 
Westfall Act, 28 U.S.C. 2679, an integral part of the FTCA, provides 
absolute immunity from individual suit for common law torts for 
employees of the United States acting within the scope of their 
employment.
    (A) The legislative history of the FTCA.
    (B) Regulations of the Attorney General implementing the Federal 
Tort Claims Act, 28 CFR part 14.
    (C) An Appendix to 28 CFR part 14 sets forth certain delegations of 
settlement authority to the Secretary of Veterans Affairs, the 
Postmaster General, the Secretary of Defense, the Secretary of 
Transportation, and the Secretary of Health and Human Services.
    (v) The Non-Scope Claims Act (NSCA), 10 U.S.C. 2737 (see Subpart E 
of this part).
    (vi) The National Guard Claims Act (NGCA), 32 U.S.C. 715 (see 
Subpart F of this part).
    (vii) Claims under International Agreements or the Foreign Claims 
Act.
    (A) International Agreements Claims Act (IACA), 10 U.S.C. 2734a and 
2734b.
    (B) Foreign Claims Act (FCA), 10 U.S.C. 2734 (see Subpart J of this 
part). (viii) The Army Maritime Claims Settlement Act (AMCSA), 10 
U.S.C. 4801, 4802 and 4806. Affirmative claims under the AMCSA are 
processed under 10 U.S.C. 4803 and 4804 (see Sec.  537.16 of this 
chapter).
    (ix) Admiralty Extension Act (AEA), 46 U.S.C. app. 740 (see Subpart 
H of this part).
    (x) Claims against nonappropriated fund (NAF) activities and the 
risk management program (RIMP) (see Subpart K of this part), processed 
under Army Regulation (AR) 215-1 and AR 608-10.
    (xi) Claims by the U.S. Postal Service for losses or shortages in 
postal accounts caused by unbonded Army personnel (39 U.S.C. 411 and 
Department of Defense (DOD) Manual 4525.6-M).
    (2) Personnel Claims (subpart I of this part and AR 27-20, chapter 
11).
    (i) The Personnel Claims Act (PCA), 31 U.S.C. 3721 (see AR 27-20, 
chapter 11).
    (ii) Redress of injuries to personal property, Uniform Code of 
Military Justice (UCMJ), Article 139, 10 U.S.C. 939 (see Subpart I of 
this part).
    (3) Affirmative Claims (32 CFR part 537).
    (i) The Federal Claims Collection Act (FCCA), 31 U.S.C. 3711-3720E.
    (ii) The Federal Medical Care Recovery Act (FMCRA), 42 U.S.C. 2651-
2653.
    (iii) Collection from third-party payers of reasonable costs of 
healthcare services, 10 U.S.C. 1095 .
    (b) Fund source authority for claims under Title 10 statutes. 10 
U.S.C. 2736, advance payments for certain property claims (see Sec.  
536.71).
    (c) Fund source authority for tort claims paid by Financial 
Management Service (FMS). 31 U.S.C. 1304, provides authority for 
judgments, awards and compromise settlements.
    (d) Additional authorities under Title 10.
    (1) 10 U.S.C. 2735, establishes that settlements (or ``actions'') 
under the Title 10 claims processing statutes are final and conclusive.
    (2) 10 U.S.C. 2731, provides a definition of the word ``settle.''
    (e) Related remedies statutes. The Army frequently receives claims 
or inquiries that are not cognizable under the statutory and other 
authorities administered by the U.S. Army under this publication and DA 
Pam 27-162. Every effort should be made to refer the claim or inquiry 
to the proper authority following the guidance in Sec.  536.34 or Sec.  
536.36. (See also the corresponding paragraphs 2-15 and 2-17, 
respectively, in DA Pam 27-162). Some authorities for related remedies 
are used more frequently than others. Where an authority for a related 
remedy is frequently used, it is listed below and is

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posted on the USARCS Web site (for the address see Sec.  536.2(a)).
    (1) Tucker Act, 28 U.S.C. 1346, provides exclusive jurisdiction in 
the Court of Federal Claims over causes of actions alleging property 
loss caused by a Fifth Amendment ``taking.''
    (2) Maritime authority statutes, Public Vessels Act (PVA), 46 
U.S.C. app. 781-790, Suits in Admiralty Act (SIAA), 46 U.S.C. app. 741-
752, and the Rivers and Harbors Act, 33 U.S.C. 408 and 412.
    (3) Federal Employees Compensation Act (FECA), two excerpts: 5 
U.S.C. 8116 and 8140, providing guidance on personal injury and death 
claims by civilian employees arising within the scope of their 
employment (see DA Pam 27-162, paragraph 2-15b) and information on 
certain claims by Reserve Officers Training Corps (ROTC) cadets, 
respectively, (see DA Pam 27-162, paragraph 2-17d(2)).
    (4) Longshore and Harbor Workers Compensation Act (LHWCA), 33 
U.S.C. 901-950.
    (5) Claims for consequential property damage by civilian employees 
may only be considered in the Court of Federal Claims pursuant to 28 
U.S.C. 1491.
    (f) Additional materials. There are some additional authoritative 
materials for the processing of claims, mostly of an administrative 
nature. For a complete listing of all of the supplementary materials 
relevant to claims processing under this publication and DA Pam 27-162 
see Appendix B of DA Pam 27-162.
    (g) Conflict of authorities. Where a conflict exists between a 
general provision of this publication and a specific provision found in 
one of this publication's subparts implementing a specific statute, the 
specific provision, as set forth in the statute, will control.


Sec.  536.3  Command and organizational relationships.

    (a) The Secretary of the Army. The Secretary of the Army (SA) heads 
the Army Claims System and acts on certain claims appeals directly or 
through a designee.
    (b) The Judge Advocate General. The SA has delegated authority to 
The Judge Advocate General (TJAG) to assign areas of responsibility and 
designate functional responsibility for claims purposes. TJAG has 
delegated authority to the Commander USARCS to carry out the 
responsibilities assigned in Sec.  536.7 and as otherwise lawfully 
delegable.
    (c) U.S. Army Claims Service. USARCS, a command and component of 
the Office of TJAG, is the agency through which the SA and TJAG 
discharge their responsibilities for the administrative settlement of 
claims worldwide (see AR 10-72). USARCS' mailing address is: U.S. Army 
Claims Service, 4411 Llewellyn Ave., Fort George G. Meade, MD 20755-
5360, Commercial: (301) 677-7009.
    (d) Command claims services. (1) Command claims services exercise 
general supervisory authority over claims matters arising within their 
assigned areas of operation. Command claims services will:
    (i) Effectively control and supervise the investigation of 
potentially compensable events (PCEs) occurring within the command's 
geographic area of responsibility, in other areas for which the command 
is assigned claims responsibility, and during the course of the 
command's operations.
    (ii) Provide services for the processing and settlement of claims 
for and against the United States.
    (2) The Commander USARCS may delegate authority to establish a 
command claims service to the commander of a major overseas command or 
other commands that include areas outside the United States, its 
territories and possessions.
    (i) When a large deployment occurs, the Commander USARCS may 
designate a command claims service for a limited time or purpose, such 
as for the duration of an operation and for the time necessary to 
accomplish the mission. The appropriate major Army command (MACOM) will 
assist the Commander USARCS in obtaining resources and personnel for 
the mission.
    (ii) In coordination with the Commander USARCS, the MACOM will 
designate the area of responsibility for each new command claims 
service.
    (3) A command claims service may be a separate organization with a 
designated commander or chief. If it is part of the command's Office of 
the Staff Judge Advocate (SJA), the SJA will also be the chief of the 
command claims service, however, the SJA may designate a field grade 
officer as chief of the service.
    (e) Area claims offices. The following may be designated as area 
claims offices (ACOs):
    (1) An office under the supervision of the senior judge advocate 
(JA) of each command or organization so designated by the Commander 
USARCS. The senior JA is the head of the ACO.
    (2) An office under supervision of the senior JA of each command in 
the area of responsibility of a command claims service so designated by 
the chief of that service after coordination with the Commander USARCS. 
The senior JA is the head of the ACO.
    (3) The office of counsel of each U.S. Army Corps of Engineers 
(COE) district within the United States and such other COE commands or 
agencies as designated by the Commander USARCS, with concurrence of the 
Chief Counsel, Office of the Chief of Engineers, for all claims 
generated within such districts, commands or agencies. The district 
counsel or the attorney in charge of the command's or agency's legal 
office is the head of the ACO.
    (f) Claims processing offices. Claims processing offices (CPOs) are 
normally small legal offices or ACO subordinate elements, designated by 
the Commander USARCS, a command claims service or an ACO. These offices 
are established for the investigation of all actual and potential 
claims arising within their jurisdiction, on either an area, command or 
agency basis. There are four types of claims processing offices (see 
Sec.  536.10):
    (1) Claims processing offices without approval authority.
    (2) Claims processing offices with approval authority.
    (3) Medical claims processing offices.
    (4) Special claims processing offices.
    (g) Limitations on delegation of authority under any subpart. (1) 
The Commander USARCS, commanders or chiefs of command claims services, 
or the heads of ACOs or CPOs with approval authority may delegate, in 
writing, all or any portion of their monetary approval authority to 
subordinate JAs or claims attorneys in their services or offices.
    (2) The authority to act upon appeals or requests for 
reconsideration, to deny claims (including disapprovals based on 
substantial fraud), to grant waivers of maximum amounts allowable, or 
to make final offers will not be delegated except that the Commander 
USARCS may delegate this authority to USARCS Division Chiefs.
    (3) CPOs will provide copies of all delegations affecting them to 
the ACO and, if so directed, to command claims services.


Sec.  536.4  Designation of claims attorneys.

    (a) Who may designate. The Commander USARCS, the senior JA of a 
command having a command claims service, the chief of a command claims 
service, the head of an ACO, or the Chief Counsel of a COE District, 
may designate a qualified attorney other than a JA as a claims 
attorney. The head of an ACO may designate a claims attorney to act as 
a CPO with approval authority.
    (b) Eligibility. To qualify as a claims attorney, an individual 
must be a civilian employee of the Department of the Army (DA) or DOD, 
a member of the bar of a state, the District of Columbia, or a 
jurisdiction where U.S. federal law applies, serving in the grade of 
GS-11

[[Page 46264]]

or above, and performing primary duties as a legal adviser.


Sec.  536.5  The Judge Advocate General.

    TJAG has worldwide Army Staff responsibility for administrative 
settlement of claims by and against the U.S. government, generated by 
employees of the U.S. Army and DOD components other than the 
Departments of the Navy and Air Force. Where the Army has single-
service responsibility, TJAG has responsibility for the Army. See DODD 
5515.9. Certain claims responsibilities of TJAG are exercised by The 
Assistant Judge Advocate General (TAJAG) as set forth in this part and 
directed by TJAG.


Sec.  536.6  The Army claims mission.

    (a) Promptly investigate potential claims incidents with a view to 
determining the degree of the Army's exposure to liability, the damage 
potential, and when the third party is at fault, whether the Army 
should take action to collect for medical expenses, lost wages and 
property damage.
    (b) Efficiently and expeditiously dispose of claims against the 
U.S. by fairly settling meritorious claims at the lowest level within 
the claims system commensurate with monetary jurisdiction delegated, or 
by denying non-meritorious claims.
    (c) Develop a system that has a high level of proficiency, so that 
litigation and appeals can be avoided or kept to a minimum.


Sec.  536.7  Responsibilities of the Commander USARCS.

    The Commander USARCS shall:
    (a) Supervise and inspect claims activities worldwide.
    (b) Formulate and implement claims policies and uniform standards 
for claims office operations.
    (c) Investigate, process and settle claims beyond field office 
monetary authority and consider appeals and requests for 
reconsideration on claims denied by the field offices.
    (d) Supervise the investigation, processing, and settlement of 
claims against, and in favor of, the United States under the statutes 
and regulations listed in Sec.  536.2 and pursuant to other appropriate 
statutes, regulations, and authorizations.
    (e) Designate ACOs, CPOs, and claims attorneys within DA and DOD 
components other than the Departments of the Navy and Air Force, 
subject to concurrence of the commander concerned.
    (f) Designate continental United States (CONUS) geographic areas of 
claims responsibility.
    (g) Recommend action to be taken by the SA, TJAG or the U.S. 
Attorney General, as appropriate, on claims in excess of $25,000 or the 
threshold amount then current under the FTCA, on claims in excess of 
$100,000 or the threshold amount then current under the FCA, the MCA, 
the NGCA, AMCSA, FCCA and FMRCA and on other claims that have been 
appealed. Direct communication with Department of Justice (DOJ) and the 
SA's designee is authorized.
    (h) Operate the ``receiving State office'' for claims arising in 
the United States, its territories, commonwealths and possessions 
cognizable under Article VIII of the North Atlantic Treaty Organization 
(NATO) Status of Forces Agreement (SOFA), Partnership for Peace (PFP) 
SOFA, Article XVI of the Singapore SOFA, and other SOFAs which have 
reciprocal claims provisions as delegated by TJAG, as implemented by 10 
U.S.C. 2734a and 2734b (Subpart G of this part).
    (i) Settle claims of the U.S. Postal Service for reimbursement 
under 39 U.S.C. 411 (see DOD Manual 4525.6-M).
    (j) Settle claims against carriers, warehouse firms, insurers, and 
other third parties for loss of, or damage to, personal property of DA 
or DOD soldiers or civilians incurred while the goods are in storage or 
in transit at government expense (AR 27-20, chapter 11).
    (k) Formulate and recommend legislation for Congressional enactment 
of new statutes and the amendment of existing statutes considered 
essential for the orderly and expeditious administrative settlement of 
noncontractual claims.
    (l) Perform post-settlement review of claims.
    (m) Prepare, justify, and defend estimates of budgetary 
requirements and administer the Army claims budget.
    (n) Maintain permanent records of claims for which TJAG is 
responsible.
    (o) Assist in developing disaster and maneuver claims plans 
designed to implement the responsibilities set forth in Sec.  
536.9(a)(12).
    (p) Develop and maintain plans for a disaster or civil disturbance 
in those geographic areas that are not under the jurisdiction of an 
area claims authority and in which the Army has single-service 
responsibility or in which the Army is likely to be the predominant 
Armed Force.
    (q) Take initial action, as appropriate, on claims arising in 
emergency situations.
    (r) Provide assistance as available or take appropriate action to 
ensure that command claims services and ACOs are carrying out their 
responsibilities as set forth in Sec. Sec.  536.8 and 536.9, including 
claims assistance visits.
    (s) Serve as proponent for the database management systems for 
torts, personnel and affirmative claims and provide standard automated 
claims data management programs for worldwide use.
    (t) Ensure proper training of claims personnel.
    (u) Coordinate claims activities with the Air Force, Navy, Marine 
Corps, and other DOD agencies to ensure a consistent and efficient 
joint service claims program.
    (v) Investigate, process and settle, and supervise the field office 
investigation and processing of, medical malpractice claims arising in 
Army medical centers within the United States; provide medical claims 
judge advocates (MCJAs), medical claims attorneys, and medical claims 
investigators assigned to such medical centers with technical guidance 
and direction on such claims.
    (w) Coordinate support with the U.S. Army Medical Command (MEDCOM) 
on matters relating to medical malpractice claims.
    (x) Issue an accounting classification to all properly designated 
claims settlement and approval authorities.
    (y) Perform the investigation, processing, and settlement of claims 
arising in areas outside command claims service areas of operation.
    (z) Maintain continuous worldwide deployment and operational 
capability to furnish claims advice to any legal office or command 
throughout the world. When authorized by the chain of command or 
competent authority, issue such claims advice or services, including 
establishing a claims system within a foreign country, interpreting 
claims aspects of international agreements, and processing claims 
arising from Army involvement in civil disturbances, chemical accidents 
under the Chemical Energy Stockpile Program, other man-made or natural 
disasters, and other claims designated by competent authority.
    (aa) Upon receiving both the appropriate authority's directive or 
order and full fiscal authorization, disburse the funds necessary to 
administer civilian evacuation, relocation, and similar initial 
response efforts in response to a chemical disaster arising at an Army 
facility.
    (bb) Respond to all inquiries from the President, members of 
Congress, military officials, and the general public on claims within 
USARCS' responsibility.
    (cc) Serve as the proponent for this publication and DA Pam 27-162, 
both

[[Page 46265]]

of which set forth guidance on personnel, tort, disaster and 
affirmative claims, as well as claims management and administration.
    (dd) Provide supervision for the Army's affirmative claims and 
carrier recovery programs, as well as other methods for recovering 
legal debts.
    (ee) Provide support for the overseas environmental claims program 
as designated by the DA.
    (ff) Execute other claims missions as designated by DOD, DA, TJAG 
and other competent authority.
    (gg) Appoint Foreign Claims Commissions outside Command Claims 
Services' geographic areas of responsibility.
    (hh) Budget for and fund claims investigations and activities; such 
as per diem and transportation of claims personnel, claimants and 
witnesses; independent medical examinations; appraisals; independent 
expert opinions; long distance telephone calls; recording and 
photographic equipment; use of express mail or couriers; and other 
necessary expenses.


Sec.  536.8  Responsibilities and operations of command claims 
services.

    (a) Chiefs of command claims services. Chiefs of command claims 
services shall:
    (1) Exercise claims settlement authority as specified in this part, 
including appellate authority where so delegated.
    (2) Supervise the investigation, processing, and settlement of 
claims against, and in favor of the United States under the statutes 
and regulations listed in Sec.  536.2, and pursuant to other 
appropriate statutes, regulations, and authorizations.
    (3) Designate and grant claims settlement authority to ACOs. A 
grant of such authority will not be effective until coordinated with 
the Commander USARCS, and assigned an office code. However, the chief 
of a command claims service may redesignate a CPO that already has an 
assigned office code as an ACO without coordination with the Commander 
USARCS. The Commander USARCS, will be informed of such a designation.
    (4) Designate and grant claims approval authority to CPOs. Only 
CPOs staffed with a claims judge advocate (CJA) or claims attorney may 
be granted approval authority. A grant of such authority will not be 
effective until coordinated with the Commander USARCS, and assigned an 
office code.
    (5) Train claims personnel and monitor their operations and ongoing 
claims administration. Conduct a training course annually.
    (6) Implement pertinent claims policies.
    (7) Prepare and publish command claims directives.
    (8) Administer the command claims expenditure allowance, providing 
necessary data, estimates, and reports to USARCS on a regular basis.
    (9) Perform the responsibilities of an ACO (see Sec.  536.9), as 
applicable, ensure that SOFA claims are investigated properly and 
timely filed with the receiving State and adequately funded.
    (10) Serve as the United States ``sending State office,'' if so 
designated, when operating in an area covered by a SOFA.
    (11) Supervise and provide technical assistance to subordinate ACOs 
within the command claims service's geographic area of responsibility.
    (12) Appoint FCCs.
    (b) Operations of Command Claims Services. The SJA of the command 
shall supervise the command claims service. The command SJA may 
designate a field grade JA as the chief of the service. An adequate 
number of qualified claims personnel shall be assigned to ensure that 
claims are promptly investigated and acted upon. With the concurrence 
of the Commander USARCS, a command claims service may designate ACOs 
within its area of operations to carry out claims responsibilities 
within specified geographic areas subject to agreement by the commander 
concerned.


Sec.  536.9  Responsibilities and operations of area claims offices.

    (a) Heads of ACOs. Heads of ACOs, including COE offices (see Sec.  
536.3(e)(3)) shall:
    (1) Ensure that claims and potential claims incidents in their area 
of responsibility are promptly investigated in accordance with this 
part.
    (2) Ensure that each organization or activity (for example, U.S. 
Army Reserve (USAR) or Army National Guard of the United States 
(ARNGUS) unit, ROTC detachment, recruiting company or station, or DOD 
agency) within the area appoints a claims officer to investigate claims 
incidents not requiring investigation by a JA (see Sec.  536.23) and 
ensure that this officer is adequately trained.
    (3) Supervise the investigation, processing, and settlement of 
claims against, and in favor of, the United States under the statutes 
and regulations listed in Sec.  536.2 and pursuant to other appropriate 
statutes, regulations, and authorizations.
    (4) Act as a claims settlement authority on claims that fall within 
the appropriate monetary jurisdictions set forth in this part and 
forward claims exceeding such jurisdictions to the Commander USARCS, or 
to the chief of a command claims service, as appropriate, for action.
    (5) Designate CPOs and request that the Commander USARCS, or the 
chief of a command claims service, as appropriate, grant claims 
approval authority to a CPO for claims that fall within the 
jurisdiction of that office.
    (6) Supervise the operations of CPOs within their area.
    (7) Implement claims policies and guidance furnished by the 
Commander USARCS.
    (8) Ensure that there are adequate numbers of qualified and 
adequately trained CJAs or claims attorneys, RCJAs or attorneys, 
recovery claims clerks, claims examiners, claims adjudicators and 
claims clerks in all claims offices within their areas to act promptly 
on claims.
    (9) Budget for and fund claims investigations and activities, such 
as: Per diem and transportation of claims personnel, claimants and 
witnesses; independent medical examinations; appraisals and independent 
expert opinions; long distance telephone calls; recording and 
photographic equipment; use of express mail or couriers; and other 
necessary expenses.
    (10) Within the United States and its territories, commonwealths 
and possessions, procure and disseminate, within their areas of 
jurisdiction, appropriate legal publications on state or territorial 
law and precedent relating to tort claims.
    (11) Notify the Commander USARCS, of all claims and potentially 
compensable events (PCEs) as required by Sec.  536.22(c); notify the 
chief of a command claims service of all claims and PCEs.
    (12) Develop and maintain written plans for a disaster or civil 
disturbance. These plans may be internal SJA office plans or an annex 
to an installation or an agency disaster response plan.
    (13) Implement the Army's Article 139 claims program. (See Subpart 
I of this part).
    (14) Notify USARCS of possible deployments and ensure adequate FCCs 
are appointed by USARCS and are trained.
    (b) Operations of Area Claims Offices. (1) The ACO is the principal 
office for the investigation and adjudication or settlement of claims, 
and shall be staffed with qualified legal personnel under the 
supervision of the SJA, command JA, or COE district or command legal 
counsel.
    (2) In addition to the utilization of unit claims officers required 
by Sec.  536.10(a), if indicated, the full-time

[[Page 46266]]

responsibility for investigating and processing claims arising within 
or related to the activities of a unit or organization located within a 
section of the designated area may be delegated to another command, 
unit, or activity by establishing a CPO at the command, unit, or 
activity (see Sec.  536.10(b)(4)). Normally, all CPOs will operate 
under the supervision of the ACO in whose area the CPO is located. 
Where a proposed CPO is not under the command of the ACO parent 
organization, this designation may be achieved by a support agreement 
or memorandum of understanding between the affected commands.
    (3) Normally, claims that cannot be settled by a COE ACO will be 
forwarded directly to the Commander USARCS, with notice of referral to 
the Chief Counsel, COE. However, as part of his or her responsibility 
for litigating suits that involve civil works and military construction 
activities, the Chief Counsel, COE, may require that a COE ACO forward 
claims through COE channels, provided that such requirement does not 
preclude the Commander USARCS from taking final action within the time 
limitations set forth in subparts D and H of this part.


Sec.  536.10  Responsibilities and operations of claims processing 
offices.

    (a) Heads of CPOs. Heads of CPOs will:
    (1) Investigate all potential and actual claims arising within 
their assigned jurisdiction, on either an area, command, or agency 
basis. Only a CPO that has approval authority may adjudicate and pay 
presented claims within its monetary jurisdiction.
    (2) Ensure that units and organizations within their jurisdiction 
have appointed claims officers for the investigation of claims not 
requiring a JA's investigation. (See Sec.  536.22).
    (3) Budget for and fund claims investigations and activities; 
including, per diem and transportation of claims personnel, claimants 
and witnesses; independent medical examinations; appraisals; 
independent expert opinions; long distance telephone calls; recording 
and photographic equipment; use of express mail or couriers; and other 
necessary expenses.
    (4) Within CONUS, procure and maintain legal publications on local 
law relating to tort claims pertaining to their jurisdiction.
    (5) Notify the Commander USARCS of all claims and claims incidents, 
as required by Sec.  536.22 and AR 27-20, paragraph 2-12.
    (6) Implement the Army's Article 139 claims program (see Subpart I 
of this part).
    (b) Operations of claims processing offices. (1) Claims processing 
office with approval authority. A CPO that has been granted approval 
authority must provide for the investigation of all potential and 
actual claims arising within its assigned jurisdiction, on an area, 
command, or agency basis, and for the adjudication and payment of all 
claims presented within its monetary jurisdiction. If the estimated 
value of a claim, after investigation, exceeds the CPO's payment 
authority, or if disapproval is the appropriate action, the claim file 
will be forwarded to the ACO unless otherwise specified in this part, 
or forwarded to USARCS or the command claims service, if directed by 
such service.
    (2) Claims processing offices without approval authority. A CPO 
that has not been granted claims approval authority will provide for 
the investigation of all potential and actual claims arising within its 
assigned jurisdiction on an area, command, or agency basis. Once the 
investigation has been completed, the claim file will be forwarded to 
the appropriate ACO for action. Alternatively, an ACO may direct the 
transfer of a claim investigation from a CPO without approval authority 
to another CPO with approval authority, located within the ACO's 
jurisdiction.
    (3) Medical claims processing offices. The MCJAs or medical claims 
attorneys at Army medical centers, other than Walter Reed Army Medical 
Center, may be designated by the SJA or head of the ACO for the 
installation on which the center is located as CPOs with approval 
authority for medical malpractice claims only. Claims for amounts 
exceeding a medical CPO's approval authority will be investigated and 
forwarded to the Commander USARCS.
    (4) Special claims processing offices. (i) Designation and 
authority. The Commander USARCS, the chief of a command claims service, 
or the head of an ACO may designate special CPOs within his or her 
command for specific, short-term purposes (for example, maneuvers, 
civil disturbances and emergencies). These special CPOs may be 
delegated the approval authority necessary to effect the purpose of 
their creation, but in no case will this delegation exceed the maximum 
monetary approval authority set forth in other subparts of this part 
for regular CPOs. All claims will be processed under the claims 
expenditure allowance and claims command and office code of the 
authority that established the office or under a code assigned by 
USARCS. The existence of any special CPO must be reported to the 
Commander USARCS, and the chief of a command claims service, as 
appropriate.
    (ii) Maneuver damage and claims office jurisdiction. A special CPO 
is the proper organization to process and approve maneuver damage 
claims, except when a foreign government is responsible for 
adjudication pursuant to an international agreement (see Subpart G of 
this part). Personnel from the maneuvering command should be used to 
investigate claims and, at the ACO's discretion, may be assigned to the 
special CPO. The ACO will process claims filed after the maneuver 
terminates. The special CPO will investigate claims arising while units 
are traveling to or from the maneuver within the jurisdiction of other 
ACOs, and forward such claims for action to the ACO in whose area the 
claims arose. Claims for damage to real or personal property arising on 
private land that the Army has used under a permit may be paid from 
funds specifically budgeted by the maneuver for such purposes in 
accordance with AR 405-15.
    (iii) Disaster claims and civil disturbance. A special CPO provided 
for a disaster or civil disturbance should include a claims approving 
authority with adequate investigatory, administrative, and logistical 
support, including damage assessment and finance and accounting 
support. It will not be dispatched prior to notification of the 
Commander USARCS, whose concurrence must be obtained before the first 
claim is paid.
    (5) Supervisory requirements. The CPOs discussed in paragraphs 
(b)(2) through (b)(4) of this section must be supervised by an assigned 
CJA or claims attorney in order to exercise delegated approval 
authority.


Sec.  536.11  Chief of Engineers.

    The Chief of Engineers, through the Chief Counsel, shall:
    (a) Provide general supervision of the claims activities of COE 
ACOs.
    (b) Ensure that each COE ACO has a claims attorney designated in 
accordance with Sec.  536.4.
    (c) Ensure that claims personnel are adequately trained, and 
monitor their ongoing claims administration.
    (d) Implement pertinent claims policies.
    (e) Provide for sufficient funding in accordance with existing Army 
regulations and command directives for temporary duty (TDY), long 
distance telephone calls, recording equipment, cameras, and other 
expenses for investigating and processing claims.

[[Page 46267]]

    (f) Procure and maintain adequate legal publications on local law 
relating to claims arising within the United States, its territories, 
commonwealths and possessions.
    (g) Assist USARCS in evaluation of claims by furnishing qualified 
expert and technical advice from COE resources, on a non-reimbursable 
basis except for temporary duty (TDY) and specialized lab services 
expenses.


Sec.  536.12  Commanding General, U.S. Army Medical Command.

    (a) After consulting with the Commander USARCS on the selection of 
medical claims attorneys, the Commander of the U.S. Army MEDCOM, the 
European Medical Command, or other regional medical command, through 
his or her SJA/Center Judge Advocate, shall ensure that an adequate 
number of qualified MCJAs or medical claims attorneys and medical 
claims investigators are assigned to investigate and process medical 
malpractice claims arising at Army medical centers under the 
Commander's control. In accordance with an agreement between TJAG and 
The Surgeon General, such personnel shall be used primarily to 
investigate and process medical malpractice claims and affirmative 
claims and will be provided with the necessary funding and research 
materials to carry out this function.
    (b) Upon request of a claims judge advocate or claims officer, 
shall provide a qualified health care provider at a medical treatment 
facility (MTF) to examine a claimant for his injuries even if the 
claimant is not otherwise entitled to care at an MTF (See AR 40-400, 
Patient Administration, paragraph 3-47).


Sec.  536.13  Chief, National Guard Bureau.

    The Chief, National Guard Bureau (NGB), shall:
    (a) Ensure the designation of a point of contact for claims matters 
in each State Adjutant General's office.
    (b) Provide the name, address, and telephone number of these points 
of contact to the Commander USARCS.
    (c) Designate claims officers to investigate claims generated by 
ARNG personnel and forward investigations to the Active Army ACO that 
has jurisdiction over the area in which the claims incident occurred.


Sec.  536.14  Commanders of major Army commands.

    Commanders of MACOMs, through their SJAs, shall:
    (a) Assist USARCS in monitoring ACOs and CPOs under their 
respective commands for compliance with the responsibilities assigned 
in Sec. Sec.  536.9 and 536.10.
    (b) Assist claims personnel in obtaining qualified expert and 
technical advice from command units and organizations on a 
nonreimbursable basis (although the requesting office may be required 
to provide TDY funding).
    (c) Assist TJAG, through the Commander USARCS, in implementing the 
functions set forth in Sec.  536.7.
    (d) Coordinate with the ACO within whose jurisdiction a maneuver is 
scheduled, to ensure the prompt investigation and settlement of any 
claims arising from it.


Sec.  536.15  Claims policies.

    (a) General. The following policies will be adhered to in 
processing and adjudicating claims falling within this regulation. The 
Commander USARCS is authorized to publish new policies or rescind 
existing policies from time to time as the need arises.
    (1) Notification. The Commander USARCS must be notified as soon as 
possible of both potential and actual claims which are serious 
incidents that cannot be settled within the monetary jurisdiction of a 
Command Claims Service or an ACO, including those which occur in the 
area of responsibility of a CPO. On such claims, the USARCS Area Action 
Officer (AAO) must coordinate with the field office as to all aspects 
of the investigation, evaluation and determination of liability. An 
offer of settlement or the assertion of an affirmative claim must be 
the result of a discussion between the AAO and the field office. 
Payment of a subrogated claim may commit the United States to liability 
as to larger claims. On the other hand, where all claims out of an 
incident can be paid within field authority they should be paid 
promptly with maximum use of small claims procedures.
    (2) Consideration under all subparts. Prior to denial, a claim will 
be considered under all subparts of this part, regardless of the form 
on which the claim is presented. A claim presented as a personnel claim 
will be considered as a tort prior to denial. A claim presented as a 
tort will first be considered as a personnel claim, and if not payable, 
then considered as a tort. If deniable, the claim will be denied both 
as a personnel claim and as a tort.
    (3) Compromise. DA policy seeks to compromise claims in a manner 
that represents a fair and equitable result to both the claimant and 
the United States. This policy does not extend to frivolous claims or 
claims lacking factual or legal merit. A claim should not be settled 
solely to avoid further processing time and expense. All claims, 
regardless of amount, should be evaluated. Congress imposed no minimum 
limit on payable claims nor did it intend that small non-meritous 
claims be paid. Practically any claim, regardless of amount, may be 
subject to compromise through direct negotiation. A CJA or claims 
attorney should develop expertise in assessing liability and damages, 
including small property damage claims. For example, a property damage 
claim may be compromised by deducting the cost of collection, i.e., 
attorney fees and costs, even where liability is certain.
    (4) Expeditious processing at the lowest level. Claims 
investigation and adjudication should be accomplished at the lowest 
possible level, such as the CPO or ACO that has monetary authority over 
the estimated total value of all claims arising from the incident. The 
expeditious investigation and settlement of claims is essential to 
successfully fulfilling the Army's responsibilities under the claims 
statutes implemented by this part.
    (5) Notice to claimants of technical errors in claim. When 
technical errors are found in a claim's filing or contents, claimants 
should be advised of such errors and the need to correct the claim. If 
the errors concern a jurisdictional matter, a record should be 
maintained and the claimant should be immediately warned that the error 
must be corrected before the statute of limitations (SOL) expires.
    (b) Cooperative investigative environment. Any person who indicates 
a desire to file a claim against the United States cognizable under one 
of the subparts of this part will be instructed concerning the 
procedure to follow. The claimant will be furnished claim forms and, 
when necessary, assisted in completing claim forms, and may be assisted 
in assembling evidence. Claims personnel may not assist any claimant in 
determining what amount to claim. During claims investigation, every 
effort should be made to create a cooperative environment that 
engenders the free exchange of information and evidence. The goal of 
obtaining sufficient information to make an objective and fair analysis 
should be paramount. Personal contact with claimants or their 
representatives is essential both during investigation and before 
adjudication. When settlement is not feasible, issues in dispute should 
be clearly identified to facilitate resolution of any reconsideration, 
appeal or litigation.
    (c) Claims directives and plans. (1) Directives. Two copies of 
command claims directives will be furnished to

[[Page 46268]]

the Commander USARCS. ACO directives will be distributed to all DA and 
DOD commands, installations and activities within the ACO's area of 
responsibility, with an information copy to the Commander USARCS.
    (2) Disaster and civil preparedness plan. One copy of all ACOs' 
disaster or civil disturbance plans or annexes will be furnished to the 
Commander USARCS.
    (d) Interpretations. The Commander USARCS will publish written 
interpretations of this part. Interpretations will have the same force 
and effect as this part.
    (e) Authority to grant exceptions to and deviations from this part. 
If, in particular instances, it is considered to be in the best 
interests of the government, the Commander USARCS may authorize 
deviations from this part's specific requirements, except as to matters 
based on statutes, treaties and international agreements, executive 
orders, controlling directives of the Attorney General or Comptroller 
General, or other publications that have the force and effect of law.
    (f) Guidance. The Commander USARCS, may publish bulletins, manuals, 
handbooks and notes, and a DA Pamphlet that provides guidance to claims 
authorities on administrative and procedural rules implementing this 
part. These will be binding on all Army claims personnel.
    (g) Communication. All claims personnel are authorized to 
communicate directly with USARCS personnel for guidance on matters of 
policy or on matters relating to the implementation of this part.
    (h) Private relief bills. The issue of a private relief bill is one 
between a claimant and his or her Congressional representative. There 
is no established procedure under which the DA sponsors private relief 
legislation. Claims personnel shall remain neutral in all private 
relief matters and shall not make any statement that purports to 
reflect the DA's position on a private relief bill.


Sec.  536.16  Release of information policies.

    (a) Conflict of interest. Except as part of their official duties, 
government personnel are forbidden from advising or representing 
claimants or from receiving any payment or gratuity for services 
rendered. They may not accept any share or interest in a claim or 
assist in its presentation, under penalty of federal criminal law (18 
U.S.C. 203 and 205).
    (b) Release of information. (1) Relevant statutes pertinent to the 
release of information include the Privacy Act of 1974, 5 U.S.C. 552a 
and 552b, the Freedom of Information Act (FOIA), 5 U.S.C. 552 and the 
Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. 
1320d through 1320d-8.
    (2) It is the policy of USARCS that unclassified attorney work 
product may be released with or without a request from the claimant or 
attorney, whenever such release may help settle the claim or avoid 
unnecessary litigation.
    (3) A statutory exemption or privilege may not be waived. 
Similarly, documents subject to such statutorily required 
nondisclosure, exemption, or privilege may not be released. Regarding 
other exemptions and privileges, authorities may waive such exemptions 
or privileges and direct release of the protected documents, upon 
balancing all pertinent factors, including finding that release of 
protected records will not harm the government's interest, will promote 
settlement of a claim and will avoid unnecessary litigation, or for 
other good cause.
    (4) All requests for records and information made pursuant to the 
FOIA, 5 U.S.C. 552, the Privacy Act of 1974, 5 U.S.C. 552a, or HIPAA, 
42 U.S.C. 1320d, will be processed in accordance with the procedures 
set forth in AR 25-55 and AR 340-21, respectively as well as 45 CFR 
parts 160 and 164, DODD 6025.18-R, this part, and DA Pam 27-162.
    (i) Any request for DOD records that either explicitly or 
implicitly cites the FOIA shall be processed under the provisions of AR 
25-55. Requests for DOD records submitted by a claimant or claimant's 
attorney will be processed under both the FOIA and under the Privacy 
Act when the request is made by the subject of the records requested 
and those records are maintained in a system of records. Such requests 
will be processed under the FOIA time limits and the Privacy Act fee 
provisions. Withheld information must be exempt from disclosure under 
both Acts.
    (ii) Requests that cite both Acts or neither Act are processed 
under both Acts, using the FOIA time limits and the Privacy Act fee 
provisions. For further guidance, see AR 25-55, paragraphs 1-301 and 1-
503.
    (5) The following records may not be disclosed:
    (i) Medical quality assurance records exempt from disclosure 
pursuant to 10 U.S.C. 1102(a).
    (ii) Records exempt from disclosure pursuant to appropriate 
balancing tests under FOIA exemption (6) (clearly unwarranted invasion 
of personal privacy), exemption (7)(c) (reasonably constitutes 
unwarranted invasion of privacy), and law enforcement records (5 U.S.C. 
552 (b)) unless requested by the subject of the record.
    (iii) Records protected by the Privacy Act.
    (iv) Records exempt from disclosure pursuant to FOIA exemption (1) 
(National security) (5 U.S.C. 552(b)), unless such records have been 
properly declassified.
    (v) Records exempt from disclosure pursuant to the attorney-client 
privilege under FOIA exemption (5) (5 U.S.C. 552(b)), unless the client 
consents to the disclosure.
    (6) Records within a category for which withholding of the record 
is discretionary (AR 25-55, paragraph 3-101), such as exemptions under 
the deliberative process or attorney work product privileges (exemption 
(5) (5 U.S.C. 552(b)) may be released when there is no foreseeable harm 
to government interests in the judgment of the releasing authority.
    (7) When it is determined that exempt information should not be 
released, or a question as to its releaseability exists, forward the 
request and two copies of the responsive documents to the Commander 
USARCS. The Commander USARCS, acting on behalf of TJAG (the initial 
denial authority), may deny release of records processed under the FOIA 
only. The Commander USARCS, will forward to TJAG all such requests 
processed under both the FOIA and PA. TJAG is the denial authority for 
Privacy Act requests (AR 340-21, paragraph 1-7i).
    (c) Claims assistance. In the vicinity of a field exercise, 
maneuver or disaster, claims personnel may disseminate information on 
the right to present claims, procedures to be followed, and the names 
and location of claims officers and the COE repair teams. When the 
government of a foreign country in which U.S. Armed Forces are 
stationed has assumed responsibility for the settlement of certain 
claims against the United States, officials of that country will be 
furnished as much pertinent information and evidence as security 
considerations permit.


Sec.  536.17  Single-service claims responsibility (DODD 5515.8 and 
DODD 5515.9).

    (a) Assignment for DOD claims. The Army is responsible for 
processing DOD claims pursuant to DODD 5515.9 (posted on the USARCS Web 
site; for the address see Sec.  536.2(a)).
    (b) Statutes and agreements. DOD has assigned single-service 
responsibility for the settlement of certain claims in certain 
countries, pursuant to DODD 5515.8 (posted on the USARCS Web

[[Page 46269]]

site; for the address see Sec.  536.2(a)) under the following statutes 
and agreements:
    (1) FCA (10 U.S.C. 2734);
    (2) MCA (10 U.S.C. 2733);
    (3) Status of Forces Agreements (10 U.S.C. 2734a and 2734b);
    (4) NATO SOFA (4 U.S.T. 1792, Treaties and International Acts 
Series (T.I.A.S.) 2846) and other similar agreements;
    (5) FCCA (31 U.S.C. 3711-3720E) and FMCRCA (42 U.S.C. 2651-2653);
    (6) Claims not cognizable under any other provision of law, 10 
U.S.C. 2737; and
    (7) Advance payments, 10 U.S.C. 2736.
    (c) Specified foreign countries. Responsibility for the settlement 
of claims cognizable under the laws listed above has been assigned to 
military departments pursuant to DODD 5515.8, as supplemented by 
executive agreement and other competent directives.
    (d) When claims responsibility has not been assigned. When 
necessary to implement contingency plans, the unified or specified 
commander with authority over the geographic area in question may, on 
an interim basis before receiving confirmation and approval from the 
General Counsel, DOD, assign single-service responsibility for 
processing claims in countries where such assignment has not already 
been made.


    Note to Sec.  536.17: See also Sec.  536.32 for information on 
transferring claims among armed services branches.

Sec.  536.18  Cross-servicing of claims.

    (a) Where claims responsibility has not been assigned. Claims 
cognizable under the FCA or the MCA that are generated by another 
military department within a foreign country for which single-service 
claims responsibility has not been assigned, may be settled by the Army 
upon request of the military department concerned. Conversely, Army 
claims may in appropriate cases be referred to another military 
department for settlement, DODD 5515.8, E1.2 (posted on the USARCS Web 
site; for the address see Sec.  536.2(a)). Tables listing claims 
offices worldwide are posted to the USARCS Web site at that address. 
U.S. Air Force claims offices may be identified by visiting the Web 
site at http://afmove.hq.af.mil/page_afclaims.asp.
    (b) Claims generated by the Coast Guard. Claims resulting from the 
activities of, or generated by, Coast Guardsmen or civilian employees 
of the Coast Guard while it is operating as a service of the U.S. 
Department of Homeland Security may upon request be settled under this 
part by a foreign claims commission appointed as authorized herein, but 
they will be paid from Coast Guard appropriations, 10 U.S.C. 2734.
    (c) SOFA claims within the United States. Claims cognizable under 
the NATO PFP or Singaporean SOFAs arising out of the activities of 
aircraft within the United States may be investigated and adjudicated 
by the U.S. Air Force under a delegation from the Commander USARCS. 
Claims exceeding the delegated amount will be adjudicated by the 
USARCS.
    (d) Claims generated by the American Battle Monuments Commission. 
Claims arising out of the activities of or in cemeteries outside the 
United States managed by the American Battle Monuments Commission (36 
U.S.C. 2110) will be investigated and adjudicated by the U.S. Army.


    Note to Sec.  536.18: See also Sec.  536.32 for information on 
transferring claims among armed services branches.

Sec.  536.19  Disaster claims planning.

    All ACOs will prepare a disaster claims plan and furnish a copy to 
USARCS. See DA Pam 27-162, paragraph 1-21 for specific requirements 
related to disaster claims planning.


Sec.  536.20  Claims assistance visits.

    Members of USARCS and command claims services will make claims 
assistance visits to field offices on a periodic basis. See DA Pam 27-
162, paragraph 1-22 for specific requirements related to claims 
assistance visits.


Sec.  536.21  Annual claims award.

    The Commander USARCS will make an annual claims award to 
outstanding field offices. See DA Pam 27-162, para 1-23 for more 
information on annual claims awards.

Subpart B--Investigation and Processing of Claims


Sec.  536.22  Claims investigative responsibility--general.

    (a) Scope. This subpart addresses the investigation, processing, 
evaluation, and settlement of tort and tort-related claims for and 
against the United States. The provisions of this subpart do not apply 
to personnel claims (AR 27-20, chapter 11), or to claims under subpart 
G of this part, Sec. Sec.  536.113 through 536.116.
    (b) Cooperation. Claims investigation requires team effort between 
the U.S. Army Claims Service (USARCS), command claims services, and 
area claims offices (ACOs) including U.S. Army Corps of Engineers (COE) 
District Offices, claims processing offices (CPOs), and unit claims 
officers. Essential to this effort is the immediate investigation of 
claims incidents. Prompt investigation depends on the timely reporting 
of claims incidents as well as continuous communication between all 
commands or echelons bearing claims responsibility.
    (c) Notification to USARCS. A CPO or an ACO receiving notice of a 
potentially compensable event (PCE) that requires investigation will 
immediately refer it to the appropriate claims office. The Commander 
USARCS will be notified of all major incidents involving serious injury 
or death or those in which property damage exceeds $50,000. A command 
claims service may delegate to an ACO the responsibility for advising 
USARCS of serious incidents and complying with mirror file 
requirements. A copy of the written delegation and any changes made 
thereafter will be forwarded to the Commander USARCS.
    (d) Geographic concept of responsibility. A command claims service 
or an ACO in whose geographic area a claims incident occurs is 
primarily responsible for initiating investigation and processing of 
any claim filed in the absence of a formal transfer of responsibility 
(see Sec. Sec.  536.30 through 536.36). DOD and Army organizations 
whose personnel are involved in the incident will cooperate with and 
assist the ACO, regardless of where the former may be located.


    Note to Sec.  536.22: See the parallel discussion at DA Pam 27-
162, paragraph 2-1.

Sec.  536.23  Identifying claims incidents both for and against the 
government.

    (a) Investigation is required when:
    (1) There is property loss or damage.
    (i) Property other than that belonging to the government is 
damaged, lost, or destroyed by an act or omission of a government 
employee or a member of North Atlantic Treaty Association (NATO), 
Australian or Singaporean forces stationed or on temporary duty within 
the United States.
    (ii) Property belonging to the government is damaged or lost by a 
tortious act or omission not covered by the report of survey system or 
by a carrier's bill of lading.
    (2) There is personal injury or death.
    (i) A civilian other than an employee of the U.S. government is 
injured or killed by an act or omission of a

[[Page 46270]]

government employee or by a member of a NATO, Australian or Singaporean 
force stationed or on temporary duty within the United States. (This 
category includes patients injured during treatment by a health care 
provider).
    (ii) Service members, active or retired, family members of either, 
or U.S. employees, are injured or killed by a third party and receive 
medical care at government expense.
    (3) A claim is filed.
    (4) A competent authority or another armed service or federal 
agency requires investigation.
    (b) Determining who is a government employee is a matter of 
federal, not local, law. Categories of government employees usually 
accepted as tortfeasors under federal law are:
    (1) Military personnel (soldiers of the Army, or members of other 
services where the Army exercises single-service jurisdiction on 
foreign soil; and soldiers or employees within the United States who 
are members of NATO or of other foreign military forces with whom the 
United States has a reciprocal claims agreement and whose sending 
States have certified that they were acting within the scope of their 
duty) who are serving on full-time active duty in a pay status, 
including soldiers:
    (i) Assigned to units performing active or inactive duty.
    (ii) Serving on active duty as Reserve Officer Training Corps 
(ROTC) instructors.
    (iii) Serving as Army National Guard (ARNG) instructors or 
advisors.
    (iv) On duty or training with other federal agencies, for example: 
The National Aeronautics and Space Administration, the Department of 
State, the Navy, the Air Force, or DOD (federal agencies other than the 
armed service to which the Soldier is attached may also provide a 
remedy).
    (v) Assigned as students or ordered into training at a non-federal 
civilian educational institution, hospital, factory, or other facility 
(excluding soldiers on excess leave or those for whom the training 
institution or organization has assumed liability by written 
agreement).
    (vi) Serving on full-time duty at nonappropriated fund (NAF) 
activities.
    (vii) Of the United States Army Reserve (USAR) and ARNG on active 
duty under Title 10, U.S.C.
    (2) Military personnel who are United States Army Reserve soldiers 
including ROTC cadets who are Army Reserve soldiers while at annual 
training, during periods of active duty and inactive duty training.
    (3) Military personnel who are soldiers of the ARNG while engaged 
in training or duty under 32 U.S.C. 316, 502, 503, 504, 505, or engaged 
in properly authorized community action projects under the Federal Tort 
Claims Act (FTCA), the Non-Scope Claims Act (NSCA), or the National 
Guard Claims Act (NGCA), unless performing duties in furtherance of a 
mission for a state, commonwealth, territory or possession.
    (4) Civilian officials and employees of both the DOD and DA (there 
is no practical significance to the distinction between the terms 
``official'' and ``employee''), including but not limited to the 
following:
    (i) Civil service and other full-time employees of both the DOD and 
DA who are paid from appropriated funds.
    (ii) Persons providing direct health care services pursuant to 
personal service contracts under 10 U.S.C. 1089 or 1091 or where 
another person exercised control over the health care provider's day-
to-day practice. When the conduct of a health care provider performing 
services under a personal service contract is implicated in a claim, 
the CJA, Medical Claims Judge Advocate (MCJA), or claims attorney 
should consult with USARCS to determine if that health care provider 
can be considered an employee for purposes of coverage.
    (iii) Employees of a NAF instrumentality (NAFI) if it is an 
instrumentality of the United States and thus a federal agency. To 
determine whether a NAFI is a ``federal agency,'' consider both whether 
it is an integral part of the Army charged with an essential DA 
operational function and also what degree of control and supervision DA 
personnel exercise over it. Members or users, unlike employees of 
NAFIs, are not considered government employees; the same is true of 
family child care providers. However, claims arising out of the use of 
some NAFI property or from the acts or omissions of family child care 
providers may be payable from such funds under subpart K of this part 
as a matter of policy, even when the user is not acting within the 
scope of employment and the claim is not otherwise cognizable under any 
of the other authorities described in this part.
    (5) Prisoners of war and interned enemy aliens.
    (6) Civilian employees of the District of Columbia ARNG, including 
those paid under ``service contracts'' from District of Columbia funds.
    (7) Civilians serving as ROTC instructors paid from Federal funds.
    (8) ARNG technicians employed under 32 U.S.C. 709(a) for claims 
accruing on or after January 1, 1969 (Pub. L. 90-486, August 13, 1968 
(82 Stat. 755)), unless performing duties solely in pursuit of a 
mission for a state, commonwealth, territory or possession.
    (9) Persons acting in an official capacity for the DOD or DA either 
temporarily or permanently with or without compensation, including but 
not limited to the following:
    (i) Dollar-a-year personnel.
    (ii) Members of advisory committees, commissions, or boards.
    (iii) Volunteers serving in an official capacity in furtherance of 
the business of the United States, limited to those categories set 
forth in DA Pam 27-162, paragraph 2-45.


    Note to Sec.  536.23: See the parallel discussion at DA Pam 27-
162, paragraph 2-2.

Sec.  536.24  Delegation of investigative responsibility.

    (a) Area Claims Office. An ACO is authorized to carry out its 
investigative responsibility as follows:
    (1) At the request of the area claims authority, commanders and 
heads of Army and DOD units, activities, or components will appoint a 
commissioned, warrant, or noncommissioned officer or a qualified 
civilian employee to investigate a claims incident in the manner set 
forth in DA Pam 27-162 and this part. An ACO will direct such 
investigation to the extent deemed necessary.
    (2) CPOs are responsible for investigating claims incidents arising 
out of the activities and operations of their command or agency. An ACO 
may assign area jurisdiction to a CPO after coordination with the 
appropriate commander to investigate claims incidents arising in the 
ACO's designated geographic area. (See Sec.  536.3(f)).
    (3) Claims incidents involving patients arising from treatment by a 
health care provider in an Army medical treatment facility (MTF), 
including providers defined in 536.23(b)(4)(ii), will be investigated 
by a claims judge advocate (CJA), medical claims judge advocate (MCJA), 
or claims attorney rather than by a unit claims officer.
    (4) An ACO will publish and distribute a claims directive to all 
DOD and Army installations and activities including active, Army 
Reserve, and ARNG units as well as units located on the post at which 
the ACO is located. The directive will outline each installation's and 
activity's claims responsibilities. It will institute a serious claims 
incident reporting system.
    (b) Command claims service responsibility. A command claims

[[Page 46271]]

service is responsible for the investigation and processing of claims 
incidents arising in its geographic area of responsibility or for any 
incidents within the authority of any foreign claims commission (FCC) 
it appoints. This responsibility will be carried out by an ACO or a CPO 
to the extent possible. A command claims service will publish a claims 
directive outlining the geographic areas of claims investigative 
responsibilities of each of its installations and activities, requiring 
each ACO or CPO to report all serious claims incidents directly to the 
Commander USARCS.
    (c) USARCS responsibility. USARCS exercises technical supervision 
over all claims offices, providing guidance on specific cases 
throughout the claims process, including the method of investigation. 
Where indicated, USARCS may investigate a claims incident that normally 
falls within a command claims service's, an ACO's, or a CPO's 
jurisdiction. USARCS typically acts through an area action officer 
(AAO) who is assigned as the primary point of contact with command 
claims services, ACOs or CPOs within a given geographic area. In areas 
outside the United States and its commonwealths, territories and 
possessions, where there is no command claims service or ACO, USARCS is 
responsible for investigation and for appointment of FCCs.

    Note to Sec.  536.24: See the parallel discussion at DA Pam 27-
162, paragraph 2-3.

Sec.  536.25  Procedures for accepting claims.

    All ACOs and CPOs will institute procedures to ensure that 
potential claimants or attorneys speak to a CJA, claims attorney, 
investigator, or examiner. On initial contact, claims personnel will 
render assistance, discuss all aspects of the potential claim, and 
determine what statutes or procedures apply. Assistance will be 
furnished to the extent set forth in DA Pam 27-162, paragraph 2-4. To 
advise claimants on the correct remedy, claims personnel will 
familiarize themselves with the remedies listed in DA Pam 27-162, 
paragraphs 2-15 and 2-17.


Sec.  536.26  Identification of a proper claim.

    (a) A claim is a writing that contains a sum certain for each 
claimant and that is signed by each claimant, or by an authorized 
representative, who must furnish written authority to sign on a 
claimant's behalf. The writing must contain enough information to 
permit investigation. The writing must be received not later than two 
years from the date the claim accrues. A claim under the Foreign Claims 
Act (FCA) may be presented orally to either the United States or the 
government of the foreign country in which the incident occurred, 
within two years, provided that it is reduced to writing not later than 
three years from the date of accrual. A claim may be transmitted by 
facsimile or telegram. However, a copy of an original claim must be 
submitted as soon as possible.
    (b) Where a claim is only for property damage and it is filed under 
circumstances where there might be injuries, the CJA should inquire if 
the claimant desires to split the claim as discussed in Sec.  536.60.
    (c) Normally, a claim will be presented on a Standard Form (SF) 95 
(Claim for Damage, Injury, or Death). When the claim is not presented 
on an SF 95, the claimant will be requested to complete an SF 95 to 
ease investigation and processing.
    (d) If a claim names two claimants and states only one sum certain, 
the claimants will be requested to furnish a sum certain for each. A 
separate sum certain must be obtained prior to payment under the 
Federal Tort Claims Act (FTCA), Military Claims Act (MCA), National 
Guard Claims Act (NGCA) or the FCA. The Financial Management Service 
will only pay an amount above the threshold amount of $2,500 for the 
FTCA, or $100,000 for the other statutes.
    (e) A properly filed claim meeting the definition of ``claim'' in 
paragraph (a) of this section tolls the two-year statute of limitations 
(SOL) even though the documents required to substantiate the claim are 
not present, such as those listed on the back of an SF 95 or in the 
Attorney General's regulations implementing the FTCA, 28 CFR 14.1-
14.11. However, refusal to provide such documents may lead to dismissal 
of a subsequent suit under the FTCA or denial of a claim under other 
subparts of this part.
    (f) Receipt of a claim by another federal agency does not toll the 
SOL. Receipt of a U.S. Army claim by DOD, Navy, or Air Force does toll 
the SOL.
    (g) The guidelines set forth in federal FTCA case law will apply to 
other subparts of this part in determining whether a proper claim was 
filed.


    Note to Sec.  536.26: See the parallel discussion at DA Pam 27-
162, paragraph 2-5.

Sec.  536.27  Identification of a proper claimant.

    The following are proper claimants:
    (a) Claims for property loss or damage. A claim may be presented by 
the owner of the property or by a duly authorized agent or legal 
representative in the owner's name. As used in this part, the term 
``owner'' includes the following:
    (1) For real property. The mortgagor, mortgagee, executor, 
administrator, or personal representative, if he or she may maintain a 
cause of action in the local courts involving a tort to the specific 
property, is a proper claimant. When notice of divided interests in 
real property is received, the claim should if feasible be treated as a 
single claim and a release from all interests must be obtained. This 
includes both the owner and tenant where both claim.
    (2) For personal property. A claim may be presented by a bailee, 
lessee, mortgagee, conditional vendor, or others holding title for 
purposes of security only, unless specifically prohibited by the 
applicable subpart. When notice of divided interests in personal 
property is received, the claim should if feasible be treated as a 
single claim; a release from all interests must be obtained. Property 
loss is defined as loss of actual tangible property, not consequential 
damage resulting from such loss.
    (b) Claims for personal injury or wrongful death. (1) For personal 
injury. A claim may be presented by the injured person or by a duly 
authorized agent or legal representative or, where the claimant is a 
minor, by a parent or a person in loco parentis. However, determine 
whether the claimant is a proper claimant under applicable state law 
or, if considered under the MCA, under Sec.  536.77. If not, the 
claimant should be so informed in the acknowledgment letter and 
requested to withdraw the claim. If not withdrawn, deny the claim 
without delay. An example is a claim filed on behalf of a minor for 
loss of consortium for injury to a parent where not permitted by state 
law. Personal injury claims deriving from the principal injury may be 
presented by other parties. A claim may not be presented by a 
``volunteer,'' meaning one who has no legal or contractual obligation, 
yet voluntarily pays damages on behalf of an injured party and then 
seeks reimbursement for their economic damages by filing a claim. See 
paragraph (f)(3) of this section.
    (2) For wrongful death. A claim may be presented by the executor or 
administrator of the deceased's estate, or by any person determined to 
be legally or beneficially entitled under applicable local law. The 
amount allowed will be apportioned, to the extent practicable, among 
the beneficiaries in accordance with the law applicable to the 
incident. Under the MCA (subpart C of this part), only one wrongful 
death claim is authorized (see Sec.  536.77(c)(1)(i)). Under

[[Page 46272]]

subparts D and H of this part, a claim by the insured for property 
damage may be considered as a claim by the insurer as the real party in 
interest provided the insured has been reimbursed by the insurer and 
the insurance information is listed on the SF 95. The insurer should be 
required to file a separate SF 95 for payment purposes even though the 
SOL has expired. Where the insurance information is not listed on the 
SF 95 and the insured is paid by the United States, the payment of the 
insurer is the responsibility of the insured even though the insurer 
subsequently files a timely claim. To avoid this situation, always 
inquire as to the status of any insurance prior to payment of a 
property damage claim.
    (c) By an agent or legal representative. A claimant's agent or 
legal representative who presents a claim will do so in the claimant's 
name and sign the form in such a way that indicates the agent's or 
legal representative's title or capacity. When a claim is presented by 
an agent or legal representative:
    (1) It must contain written evidence of the agent's or legal 
representative's authority to sign, such as a power of attorney, or
    (2) It must refer to or cite the statute granting authority.
    (d) Subrogation. A claim may be presented by the subrogee in his or 
her own name if authorized by the law of the place where the incident 
giving rise to the claim occurred, under subpart D or H of this part 
only. A lienholder is not a proper claimant and should be distinguished 
from a subrogee to avoid violation of the Antiassignment Act. See 
paragraph (f) of this section. However, liens arising under Medicare 
will be processed directly with the Center for Medicare and Medicaid 
Systems. See DA Pam 27-162, paragraphs 2-57g and h and 2-58.
    (e) Contribution or indemnity. A claim may be filed for 
contribution or indemnification by the party who was held liable as a 
joint tortfeasor where authorized by state law. Such a claim is not 
perfected until payment has been made by the claimant/joint tortfeasor. 
A claim filed for contribution prior to payment being made should be 
considered as an opportunity to share a settlement where the United 
States is liable.
    (f) Transfer or assignment. (1) Under the Antiassignment Act (31 
U.S.C. 3727) and Defense Finance and Accounting Service--Indianapolis 
(DFAS-IN) regulation 37-1, a transfer or assignment is null and void 
except where it occurs by operation of law or after a voucher for the 
payment has been issued. The following are null and void:
    (i) Every purported transfer or assignment of a claim against the 
United States, or any interest, in whole or in part, on a claim, 
whether absolute or conditional; and
    (ii) Every power of attorney or other purported authority to 
receive payment for all or part of any such claim.
    (2) The Antiassignment Act was enacted to eliminate multiple 
payment of claims, to cause the United States to deal only with 
original parties and to prevent persons of influence from purchasing 
claims against the United States.
    (3) In general, this statute prohibits voluntary assignments of 
claims, with the exception of transfers or assignments made by 
operation of law. The operation of law exception has been held to apply 
to claims passing to assignees because of bankruptcy proceedings, 
assignments for the benefit of creditors, corporate liquidations, 
consolidations, or reorganizations, and where title passes by operation 
of law to heirs or legatees. Subrogated claims that arise under a 
statute are not barred by the Antiassignment Act. For example, 
subrogated workers' compensation claims are cognizable when presented 
by the insurer under subpart D or H of this part, but not other 
subparts.
    (4) Subrogated claims that arise pursuant to contractual provisions 
may be paid to the subrogee, if the legal basis for the subrogated 
claim is recognized by state statute or case law, only under subpart D 
or H of this part. For example, an insurer that issues an insurance 
policy becomes subrogated to the rights of a claimant who receives 
payment of a property damage claim. Generally, such subrogated claims 
are authorized by state law and are therefore not barred by the 
Antiassignment Act.
    (5) Before claims are paid, it is necessary to determine whether 
there may be a valid subrogated claim under a federal or state statute 
or a subrogation contract held valid by state law.
    (g) Interdepartmental waiver rule. Neither the U.S. government nor 
any of its instrumentalities are proper claimants due to the 
interdepartmental waiver rule. This rule bars claims by any 
organization or activity of the Army, whether or not the organization 
or activity is funded with appropriated or nonappropriated funds. 
Certain federal agencies are authorized by statute to file claims, for 
example, Medicare and the Railroad Retirement Commission. See DA Pam 
27-162, paragraph 2-17f.
    (h) States are excluded. If a state, U.S. commonwealth, territory, 
or the District of Columbia maintains a unit to which ARNG personnel 
causing the injury or damage are assigned, such governmental entity is 
not a proper claimant for loss or damage to its property. A unit of 
local government other than a state, commonwealth, or territory is a 
proper claimant.


    Note to Sec.  536.27: See the parallel discussion at DA Pam 27-
162, paragraph 2-6.

Sec.  536.28  Claims acknowledgment.

    Claims personnel will acknowledge all claims immediately upon 
receipt, in writing, by telephone, or in person. A defective claim will 
be acknowledged in writing, pointing out its defects. Where the defects 
render the submission jurisdictionally deficient based on the 
requirements discussed in DA Pam 27-162, paragraphs 2-5 and 2-6, the 
claimant or attorney will be informed in writing of the need to present 
a proper claim no later than two years from the date of accrual. Suit 
must be filed in maritime claims not later than two years from the date 
of accrual. See Sec.  536.122. In any claim for personal injury or 
wrongful death, an authorization signed by the patient, natural or 
legal guardian or estate representative will be obtained authorizing 
the use of medical information, including medical records, in order to 
use sources other than claims personnel to evaluate the claim as 
required by the Health Care Portability and Accountability Act (HIPAA), 
42 U.S.C. 1320d-1320d-8. See the parallel discussion at DA Pam 27-162, 
paragraph 2-7.


Sec.  536.29  Revision of filed claims.

    (a) General. A revision or change of a previously filed claim may 
constitute an amendment or a new claim. Upon receipt, the CJA must 
determine whether a new claim has been filed. If so, the claim must be 
logged with a new number and acknowledged in accordance with Sec.  
536.27.
    (b) New claim. A new claim is filed whenever the writing alleges a 
new theory of liability, a new tortfeasor, a new party claimant, a 
different date or location for the claims incident, or other basic 
element that constitutes an allegation of a different tort not 
originally alleged. If the allegation is made verbally or by e-mail, 
the claimant will be informed in writing that a new SF 95 must be 
filed. A new claim must be filed not later than two years from the 
accrual date under the FTCA. Filing a new claim creates an additional 
six month period during which suit may not be filed.
    (c) Amendment. An increase or decrease in the amount claimed 
constitutes an amendment, not a new claim. Similarly, the addition of

[[Page 46273]]

required information not on the original claim constitutes an 
amendment. Examples are date of birth, marital status, military status, 
names of witnesses, claimant's address, description, or location of 
property or insurance information. An amendment may be filed before or 
after the two year SOL has run unless final action has been taken. A 
new number will not be assigned to an amended claim; however, a change 
in the amount will be annotated in the database.


    Note to Sec.  536.29: See the parallel discussion at DA Pam 27-
162, paragraph 2-8.

Sec.  536.30  Action upon receipt of claim.

    (a) A properly filed claim stops the running of the SOL when it is 
received by any organization or activity of the DOD or the U.S. Armed 
Services. Placing a claim in the mail does not constitute filing. The 
first Army claims office that receives the claim will date, time stamp, 
and initial the claim as of the date the claim was initially received 
``on post,'' not by the claims office. If initially received close to 
the SOL's expiration date by an organization or activity that does not 
have a claims office, claims personnel will discover and record in the 
file the date of original receipt.
    (b) The ACO or CPO that first receives the claim will enter the 
claim into the Tort and Special Claims Application (TSCA) database and 
let the system assign a number to the claim. The claim, whether on an 
SF 95 or in any other format, shall be scanned into a computer and 
uploaded onto the TSCA database so that it will become a permanent part 
of the electronic record. A joint claim will be given a number for each 
claimant, for example, husband and wife, injured parent and children. 
If only one sum is filed for all claimants, the same sum will be 
assigned for each claimant. However, request the claimant to name a sum 
for each claimant. The claim will bear this number throughout the 
claims process. Upon transfer, a new number will not be assigned by the 
receiving office. If a claim does not meet the definition of a proper 
claim under Sec. Sec.  536.26 and 536.27, it will be date stamped and 
logged as a Potentially Compensable Event (PCE).
    (c) The claim will be transferred if the claim incident arose in 
another ACO's geographic area; the receiving ACO will use the claims 
number originally assigned.
    (d) Non-Appropriated Fund Instrumentality (NAFI) claims that relate 
to claims determined cognizable under subpart K of this part will be 
marked with the symbol ``NAFI'' immediately following the claimant's 
name, to preclude erroneous payment from appropriated funds (APF). This 
symbol will also be included in the subject line of all correspondence.
    (e) Upon receipt, copies of the claims will be furnished as follows 
(when a current e-mail address is available and it is agreeable with 
the receiving party, providing copies by e-mail is acceptable):
    (1) To USARCS, if the amount claimed exceeds $25,000, or $50,000 
per incident. However, if the claim arises under the FTCA or AMCSA, 
only furnish copies if the amount claimed exceeds $50,000, or $100,000 
per incident.
    (2) For medical malpractice claims, to the appropriate MTF 
Commander/s through MEDCOM Headquarters, and to the Armed Forces 
Institute of Pathology at the addresses listed below.

    MEDCOM, ATTN: MCHO-CL-Q, 2050 Worth Road, Suite 26, Fort Sam 
Houston, Texas 78234-5026.
    Department of Legal Medicine, Armed Forces Institute of 
Pathology, 1335 E. West Highway, <greek-i>6-100, Silver Spring, MD 
20910-6254, Commercial: 301-295-8115, E-Mail: <a href="/cdn-cgi/l/email-protection#c2a1a3b1aaa382a3a4abb2ecadb1a6ecafabae"><span class="__cf_email__" data-cfemail="640705170c052405020d144a0b17004a090d08">[email protected]</span></a>.

    (3) If the claim is against AAFES forward a copy to: HQ Army and 
Air Force Exchange Service (AAFES), ATTN: Office of the General Counsel 
(GC-Z), P.O. Box 650062, Dallas, TX 75265-0062, E-Mail: 
<a href="/cdn-cgi/l/email-protection#9af8f6fbf4f9f2eadafbfbfcffe9b4f9f5f7"><span class="__cf_email__" data-cfemail="f0929c919e939880b09191969583de939f9d">[email protected]</span></a>.
    (4) If the claim involves a NAFI, including a recreational user or 
family child care provider forward a copy to: Army Central Insurance 
Fund, ATTN: CFSC-FM-I, 4700 King Street, Alexandria, VA 22302-4406, E-
Mail: <a href="/cdn-cgi/l/email-protection#c4b6adb7afa9a5aaa5a3a1a9a1aab084a7a2b7a7eaa5b6a9bdeaa9ada8"><span class="__cf_email__" data-cfemail="cdbfa4bea6a0aca3acaaa8a0a8a3b98daeabbeaee3acbfa0b4e3a0a4a1">[email protected]</span></a>.
    (f) ACOs or CPOs will furnish a copy of any medical or dental 
malpractice claim to the MTF or dental treatment facility commander and 
advise the commander of all subsequent actions. The commander will be 
assisted in his or her responsibility to complete DD Form 2526 (Case 
Abstract for Malpractice Claims).


    Note to Sec.  536.30: See the parallel discussion at DA Pam 27-
162, paragraph 2-9.

Sec.  536.31  Opening claim files.

    A claim file will be opened when:
    (a) Information that requires investigation under Sec.  536.23 is 
received.
    (b) Records or other documents are requested by a potential 
claimant or legal representative.
    (c) A claim is filed.

    Note to Sec.  536.31: See the parallel discussion at DA Pam 27-
162, paragraph 2-10.

Sec.  536.32  Transfer of claims among armed services branches.

    (a) Claims filed with the wrong federal agency, or claims that 
should be adjudicated by receiving State offices under NATO or other 
SOFA, will be immediately transferred to the proper agency together 
with notice of same to the claimant or legal representative. Where 
multiple federal agencies are involved, other agencies will be 
contacted and a lead agency established to take all actions on the 
claim. Where the DA is the lead agency, any final action will include 
other agencies. Similarly, where another agency is the lead agency, 
that agency will be requested to include DA in any final action. Such 
inclusion will prevent multiple dates for filing suit or appeal.
    (b) If another agency has taken denial action on a claim that 
involves the DA, without informing the DA, and in which the DA desires 
to make a payment, the denial action may be reconsidered by the DA not 
later than six months from the date of mailing and payment made 
thereafter.

    Note to Sec.  536.32: See also Sec. Sec.  536.17 and 536.18; AR 
27-20, paragraph 13-2; and the parallel and related discussion of 
this topic at DA Pam 27-162, paragraphs 1-19, 1-20, 2-13 and 13-2.

Sec.  536.33  Use of small claims procedures.

    Small claims procedures are authorized for use whenever a claim may 
be settled for $5,000 or less. These procedures are designed to save 
processing time and eliminate the need for most of the documentation 
otherwise required. These procedures are described in DA Pam 27-162, 
paragraphs 2-14 and 2-26.


Sec.  536.34  Determination of correct statute.

    (a) Consideration under more than one statute. When Congress 
enacted the various claims statutes, it intended to allow federal 
agencies to settle meritorious claims. A claim must be considered under 
other statutes in this part unless one particular statute precludes the 
use of other statutes, whether the claim is filed on DD Form 1842 
(Claim for Loss of or Damage to Personal Property Incident to Service) 
or SF 95. Prior to denial of an AR 27-20, chapter 11 claim, consider 
whether it may fall within the scope of subparts C, D, or F of this 
part, and where indicated, question the claimant to determine whether 
the claim sounds in tort.
    (b) Exclusiveness of certain remedies. Certain remedies exclude all 
others. For

[[Page 46274]]

example, the Court of Federal Claims has exclusive jurisdiction over 
U.S. Constitution Fifth Amendment takings, express or implied-in-fact, 
as well as governmental contract losses, or intangible property losses. 
Claims of this nature for $10,000 or less may be filed in a U.S. 
District Court. There is no administrative remedy. While the FTCA is 
the preemptive tort remedy in the United States, its commonwealths, 
territories and possessions, nevertheless, other remedies must be 
exhausted prior to favorable consideration under the FTCA. The FTCA 
does not preclude use of the MCA or the NGCA for claims arising out of 
noncombat activities or brought by soldiers for incident-to-service 
property losses sustained within the United States. See DA Pam 27-162, 
paragraphs 2-15a and b for a more detailed discussion of determining 
the correct statute for property claims versus personal injury and 
death claims. In addition, it is important to consider the nature of 
the claim, e.g., whether the claim may be medical malpractice in 
nature, related to postal matter, or an automobile accident. 
Discussions of these and many other different types of claims are also 
provided herein as well as in the corresponding paragraph 2-15 of DA 
Pam 27-162. It is also very important to consider when a claim may fall 
outside the jurisdiction of the Army claims system. Some of these 
instances are alluded to immediately above, but for a detailed 
discussion of related remedies see Sec.  536.36 of this part and 
paragraph 2-17 of DA Pam 27-162.
    (c) Status of Forces Agreement Claims. (1) Claims arising out of 
the performance of official duties in a foreign country where the 
United States is the sending State must be filed and processed under a 
SOFA, provided that the claimant is a proper party claimant under the 
SOFA. DA Pam 27-162, paragraph 2-15c sets forth the rules applicable in 
particular countries. A SOFA provides an exclusive remedy subject to 
waiver as set forth in Sec.  536.76(h) of this part.
    (2) Single-service jurisdiction is established for all foreign 
countries in which a SOFA is in effect and for certain other countries. 
A list of these countries is posted on the USARCS Web site; for the 
address see Sec.  536.2(a). Claims will be processed by the service 
exercising single-service responsibility. In the United States, USARCS 
is the receiving State office and all SOFA claims should be forwarded 
immediately to USARCS for action. Appropriate investigation under 
subpart B of this part procedures is required of an ACO or a CPO under 
USARCS' direction.
    (d) Foreign Claims Act claims. (1) Claims by foreign inhabitants, 
arising in a foreign country, which are not cognizable under a SOFA, 
fall exclusively under the FCA. The determination as to whether a 
claimant is a foreign inhabitant is governed by the rules set out in 
subpart C and subpart J of this part. In case of doubt, this 
determination must be based on information obtained from the claimant 
and others, particularly where the claimant is a former U.S. service 
member or a U.S. citizen residing in a foreign country.
    (2) Tort claims will be processed by the armed service that 
exercises single-service responsibility. When requested, the Commander 
USARCS may furnish a Judge Advocate or civilian attorney to serve as a 
Foreign Claims Commission (FCC) for another service. With the 
concurrence of the Commander USARCS, Army JAs may be appointed as 
members of another department's foreign claims commissions. See Subpart 
J of this part. The FCA permits compensation for damages caused by 
``out-of-scope'' tortious conduct of Soldier and civilian employees. 
Many of these claims are also compensable under Article 139, Uniform 
Code of Military Justice. See DA Pam 27-162, chap. 9. To avoid the 
double payment of claims, ACOs and CPOs must promptly notify the 
Command Claims Service of each approved Article 139 claim involving a 
claimant who could also file under an applicable SOFA.
    (e) National Guard Claims Act claims. (1) Claims attributed to the 
acts or omissions of ARNG personnel in the course of employment fall 
into the categories set forth in subpart F of this part.
    (2) An ACO will establish with a state claims office routine 
procedures for the disposition of claims, designed to ensure that the 
United States and state authorities do not issue conflicting 
instructions for processing claims. The procedures will require 
personnel to advise the claimant of any remedy against the state or its 
insurer.
    (i) Where the claim arises out of the act or omission of a member 
of the ARNG or a person employed under 32 U.S.C. 709, it must be 
determined whether the employee is acting on behalf of the state or the 
United States. For example, an ARNG pilot employed under section 709 
may be flying on a state mission, federal mission, or both, on the same 
trip. This determination will control the disposition of the claim. If 
agreement with the concerned state cannot be reached and the claim is 
otherwise payable, efforts may be made to enter into a sharing 
agreement with the state concerned. The following procedures are 
required in the event there is a remedy against the state and the state 
refuses to pay or the state maintains insurance coverage and the 
claimant has filed an administrative claim against the United States. 
First, forward the file and the tort claim memorandum, including 
information on the status of any judicial or administrative action the 
claimant has taken against the state or its insurer to the Commander 
USARCS. Upon receipt, the Commander USARCS will determine whether to 
require the claimant to exhaust his or her remedy against the state or 
its insurer or whether the claim against the United States can be 
settled without requiring such exhaustion. If the Commander USARCS 
decides to follow the latter course of action, he or she will also 
determine whether to obtain an assignment of the claim against the 
state or its insurer and whether to initiate recovery action to obtain 
contribution or indemnification. The state or its insurer will be given 
appropriate notification in accordance with state law.
    (ii) If an administrative claim remedy exists under state law or 
the state maintains liability insurance, the Commander USARCS or an ACO 
acting upon the Commander USARCS' approval may enter into a sharing 
agreement covering payment of future claims. The purpose of such an 
agreement is to determine in advance whether the state or the DA is 
responsible for processing a claim (did the claim arise from a federal 
or state mission?), to expedite payment in meritorious claims, and to 
preclude double recovery by a claimant.
    (f) Third-party claims involving an independent contractor.
    (1) Generally. (i) Upon receipt, all claims will be examined to 
determine whether a contractor of the United States is the tortfeasor. 
If so, the claimant or legal representative will be notified of the 
name and address of the contractor and further advised that the United 
States is not responsible for the acts or omissions of an independent 
contractor. This will be done prior to any determination as to the 
contractor's degree of culpability as compared to that of the United 
States.
    (ii) If, upon investigation, the damage is considered to be 
primarily due to the contractor's fault or negligence, the claim will 
be referred to the contractor or the contractor's insurance carrier for 
settlement and the claimant will be so advised.

[[Page 46275]]

    (iii) Health care providers hired under personal services contracts 
under the provisions of 10 U.S.C. 1089 are not considered to be 
independent contractors but employees of the United States for tort 
claims purposes.
    (2) Claims for injury or death of contractor employees. Upon 
receipt of a claim for injury or death of a contractor employee, a copy 
of the portions of the contract applicable to claims and workers' 
compensation will be obtained, either through the contracting office or 
from the contractor. Claims personnel must find out the status of any 
claim for workers' compensation benefits as well as whether the United 
States paid the premiums. The goal is to involve the contractor in any 
settlement, where indicated, in the manner set forth in DA Pam 27-162, 
paragraphs 2-15f and 2-61. In claims arising in foreign countries 
consider whether the claim is covered by the Defense Bases Act, 42 
U.S.C. 1651-1654.
    (g) Claims by contractors for damage to or loss of their property 
during the performance of their contracts. Claims by contractors for 
property damage or loss should be referred to the contracting officer 
for determination as to whether the claim is payable under the 
contract. Such a claim is not payable under the FTCA where the damage 
results from an in-scope act or omission. Contract appeal procedures 
must be exhausted prior to consideration as a bailment under the MCA or 
FCA.
    (h) Maritime claims. Maritime torts are excluded from consideration 
under the FTCA. The various maritime statutes are exclusive remedies 
within the United States and its territorial waters. Maritime statutes 
include the Army Maritime Claims Settlement Act (AMCSA), 10 U.S.C. 
4801, 4802 and 4806, the Suits in Admiralty Act (SIAA), 46 U.S.C. app. 
781-790, the Public Vessels Act (PVA), 46 U.S.C. app. 781-790, and the 
Admiralty Extension Act (AEA), 46 U.S.C. app. 740. Within the U.S. and 
its territorial waters, maritime suits may be filed under the SIAA or 
the PVA without first filing an administrative claim, except where 
administrative filing is required by the AEA. Administrative claims may 
also be filed under the AMSCA. In any administrative claim brought 
under the AMCSA, all action must be completed not later than two years 
from its accrual date or the SOL will expire. Outside the United 
States, a maritime tort may be brought under the MCA or FCA as well as 
the AMCSA. The body of water on which it occurs must be navigable and a 
maritime nexus must exist. Once a maritime claim is identified, give 
the claimant written notice of the two-year filing requirement. In case 
of doubt, the ACO or CPO should discuss the matter with the appropriate 
AAO. Even when the claimant does not believe that a maritime claim is 
involved, provide the claimant with precautionary notice. See DA Pam 
27-162, paragraphs 2-7e and 8-6.
    (i) Postal claims. See also DA Pam 27-162, paragraphs 2-15i, 2-30 
and 2-56g discussing postal claims.
    (1) Claims by the U.S. Postal Service for funds and stock are 
adjudicated by USARCS with assistance from the Military Postal Service 
Agency and the ACO or CPO having jurisdiction over the particular Army 
post office, when directed by USARCS to assist in the investigation of 
the claim.
    (2) Claims for loss of registered and insured mail are processed 
under subpart C of this part by the ACO or CPO having jurisdiction over 
the particular Army post office.
    (3) Claims for loss of, or damage to, parcels delivered by United 
Parcel Service (UPS) are the responsibility of UPS.
    (j) Blast damage claims. After completing an investigation and 
prior to final action, all blast damage claims resulting from Army 
firing and demolition activities must be forwarded to the Commander 
USARCS for technical review. The sole exception to this rule is when a 
similar claim is filed citing the same time, place and type of damage 
as one which has already received technical review. See also DA Pam 27-
162, paragraph 2-28.
    (k) Motor vehicle damage claims arising from the use of non-
governmental vehicles. See also Sec.  536.60 (splitting property damage 
and personal injury claims) and DA Pam 27-162, paragraphs 2-15k 
(determining the correct statute), 2-61 (joint tortfeasors), and 2-62e 
(indemnity or contribution).
    (1) Government tortfeasors. A Soldier or U.S. government civilian 
employee who negligently damages his or her personal property while 
acting within the scope of employment is not a proper claimant for 
damage to that property.
    (2) Claims by lessors for damage to rental vehicles. Third-party 
claims arising from the use of rental vehicles will be processed in the 
same manner as NAFI commercially insured activities after exhaustion of 
any other remedy under the Government Travel Card Program or the 
Surface Deployment and Distribution Command Car Rental Agreement.
    (3) Third-party damages arising from the use of privately owned 
vehicles. Third-party tort claims arising within the United States from 
a Soldier's use of a privately owned vehicle (POV) while allegedly 
within the scope of employment must be forwarded to the Commander 
USARCS for review and consultation before final action. The claim will 
be investigated and any authorization for use ascertained including 
payment for mileage. A copy of the Soldier's POV insurance policy will 
be obtained prior to forwarding. If the DA is an additional insurer 
under applicable state law, the claim will be forwarded to the 
Soldier's liability carrier for payment. When the tort claim arises in 
a foreign country, follow the provisions of Subpart J of this part.
    (l) Claims arising from gratuitous use of DOD or Army vehicles, 
equipment or facilities. (1) Before the commencement of any event that 
involves the use of DOD or Army land, vehicles, equipment or Army 
personnel for community activities, the Command involved should be 
advised to first determine and weigh the risk to potential third-party 
claimants against the benefits to the DOD or the Army. Where such risk 
is excessive, try to obtain an agreement from the sponsoring civilian 
organization holding the Army harmless. When feasible, third-party 
liability insurance may be required from the sponsor and the United 
States added to the policy as a third-party insured.
    (2) When Army equipment and personnel are used for debris removal 
relief pursuant to the Federal Disaster Relief Act, 42 U.S.C. 5173, the 
state is required to assume responsibility for third-party claims. The 
senior judge advocate for a task force engaged in such relief should 
obtain an agreement requiring the state to hold the Army harmless and 
establish a procedure for payment by the state. Claims will be 
received, entered into the TSCA database, investigated and forwarded to 
state authorities for action.
    (m) Real estate claims. Claims for rent, damage, or other payments 
involving the acquisition, use, possession or disposition of real 
property or interests therein, are generally payable under AR 405-15. 
These claims are handled by the Real Estate Claims Office in the 
appropriate COE District or a special office created for a deployment. 
Directorate of Real Estate, Office of the Chief of Engineers, has 
supervisory authority. Claims for damage to real property and 
incidental personal property, but not for rent (for example, claims 
arising during a maneuver or deployment) may be payable under subparts 
C or J of this part. However, priority should be given to the use of AR 
405-15 as it is more flexible and expeditious. In contingency 
operations and deployments, there is a large potential for overlap 
between

[[Page 46276]]

contractual property damage claims and noncombat activity/maneuver 
claims. Investigate carefully to ensure the claim is in the proper 
channel (claims or real estate), that it is fairly settled, and that 
the claimant does not receive a double payment. For additional 
guidance, see subpart J of this part and United States Army Claims 
Service Europe (USACSEUR) Real Estate/Office of the Judge Advocate 
Standard Operating Procedures for Processing Claims Involving Real 
Estate During Contingency Operations (August 20, 2002).
    (n) Claims generated by civil works projects. Civil works projects 
claims arising from tortious activities are defined by whether the 
negligent or wrongful act or omission arising from a project or 
activity is funded by a civil works appropriation. Civil works claims 
are those noncontractual claims which arise from a negligent or 
wrongful act or omission during the performance of a project or 
activity funded by civil works appropriations as distinguished from a 
project or activity funded by Army operation and maintenance funds. 
Civil works claims are paid out of civil works appropriations to the 
extent set forth in Sec.  536.71(f). A civil works claim can also arise 
out of a noncombat activity, for example, an inverse condemnation claim 
in which flooding exceeds the high water mark. Maritime claims under 
subpart H of this part are civil works claims when they arise out of 
the operation of a dam, locks or navigational aid.


    Note to Sec.  536.34: See parallel discussion at DA Pam 27-162, 
paragraph 2-1.

Sec.  536.35  Unique issues related to environmental claims.

    Claims for property damage, personal injury, or death arising in 
the United States based on contamination by toxic substances found in 
the air or the ground must be reported by USARCS to the Environmental 
Law Division of the Army Litigation Center and the Environmental Torts 
Branch of DOJ. Such claims arising overseas must be reported to the 
Command Claims Service with geographical jurisdiction over the claim 
and USARCS. Claims for personal injury from contamination frequently 
arise at an area that is the subject of claims for cleanup of the 
contamination site. The cleanup claims involve other Army agencies, use 
of separate funds, and prolonged investigation. Administrative 
settlement is not usually feasible because settlement of property 
damage claims must cover all damages, including personal injury. 
Payment by Defense Environmental Rehabilitation Funds should be 
considered initially and any such payment should be deducted from any 
settlement under AR 27-20.


Sec.  536.36  Related remedies.

    An ACO or a CPO routinely receives claims or inquiries about claims 
that clearly are not cognizable under this part. It is the DA's policy 
that every effort be made to discover another remedy and inform the 
inquirer as to its nature. Claims personnel will familiarize themselves 
with the remedies set forth in DA Pam 27-162, paragraph 2-17, to carry 
out this policy. If no appropriate remedy can be discovered, forward 
the file to the Commander USARCS, with recommendations.


Sec.  536.37  Importance of the claims investigation.

    Prompt and thorough investigation will be conducted on all 
potential and actual claims for and against the government. Evidence 
developed during an investigation provides the basis for every 
subsequent step in the administrative settlement of a claim or in the 
pursuit of a lawsuit. Claims personnel must gather and record adverse 
as well as favorable information. The CJA, claims attorney or unit 
claims officer must preserve their legal and factual findings.


Sec.  536.38  Elements of the investigation.

    (a) The investigation is conducted to ascertain the facts of an 
incident. Which facts are relevant often depends on the law and 
regulations applicable to the conduct of the parties involved but 
generally the investigation should develop definitive answers to such 
questions as ``When?'' ``Where?'' ``Who?'' ``What?'' and ``How?''. 
Typically, the time, place, persons, and circumstances involved in an 
incident may be established by a simple report, but its cause and the 
resulting damage may require extensive effort to obtain all the 
pertinent facts.
    (b) The object of the investigation is to gather, with the least 
possible delay, the best available evidence without accumulating 
excessive evidence concerning any particular fact. The claimant is 
often an excellent source of such information and should be contacted 
early in the investigation, particularly when there is a question as to 
whether the claim was timely filed.


Sec.  536.39  Use of experts, consultants and appraisers.

    (a) ACOs or CPOs will budget operation and maintenance (O&M) funds 
for the costs of hiring property appraisers, accident 
reconstructionists, expert consultants to furnish opinions, and medical 
specialists to conduct independent medical examinations (IMEs). Other 
expenses to be provided for from O&M funds include the purchase of 
documents, such as medical records, and the hiring of mediators. See 
Sec.  536.53(b). Where the cost exceeds $750 or local funds are 
exhausted, a request for funding should be directed to the Commander 
USARCS, with appropriate justification. The USARCS AAO must be notified 
as soon as possible when an accident reconstruction is indicated.
    (b) Where the claim arises from treatment at an Army MTF, the 
MEDDAC commander should be requested to fund the cost of an independent 
consultant's opinion or an IME.
    (c) The use of outside consultants and appraisers should be limited 
to claims in which liability or damages cannot be determined otherwise 
and in which the use of such sources is economically feasible, for 
instance, where property damage is high in amount and not determinable 
by a government appraiser or where the extent of personal injury is 
serious and a government IME is neither available nor acceptable to a 
claimant. Prior to such an examination at an MTF, ensure that the 
necessary specialists are available and a prompt written report may be 
obtained.
    (d) Either an IME or an expert opinion is procured by means of a 
personal services contract under the Federal Acquisition Regulation 
(FAR), part 37, 48 CFR 37.000 through 37.604, through the local 
contracting office. The contract must be in effect prior to 
commencement of the records review. Payment is authorized only upon 
receipt of a written report responsive to the questions asked by the 
CJA or claims attorney.
    (e) Whenever a source other than claims personnel is used to assist 
in the evaluation of a claim in which medical information protected by 
HIPAA is involved, the source must sign an agreement designed to 
protect the patient's privacy rights.


Sec.  536.40  Conducting the investigation.

    (a) The methods and techniques for investigating specific 
categories of claims are set forth in DA Pam 27-162, paragraphs 2-25 
through 2-34. The investigation of medical malpractice claims should be 
conducted by a CJA or claims attorney, using a medical claims 
investigator.
    (b) A properly filed claim must contain enough information to 
permit investigation. For example, if the claim does not specify the 
date, location or

[[Page 46277]]

details of every incident complained of, the claimant or legal 
representative should be required to furnish the information.
    (c) Request the claimant or legal representative to specify a 
theory of liability. However, the investigation should not be limited 
to the theories specified, particularly where the claimant is 
unrepresented. All logical theories should be investigated.


Sec.  536.41  Determination of liability--generally.

    (a) Under the FTCA, the United States is liable in the same manner 
and to the same extent as a private individual under like circumstances 
in accordance with the law of the place where the act or omission 
giving rise to the tort occurred (28 U.S.C. 2673 and 2674). This means 
that liability must rest on the existence of a tort cognizable under 
state law, hereinafter referred to as a state tort. A finding of state 
tort liability requires the litigating attorney to prove the elements 
of duty, breach of duty, causation, and damages as interpreted by 
federal case law.
    (b) The foregoing principles and requirements will be followed in 
regard to tort claims against the United States under other subparts, 
with certain exceptions noted within the individual subparts or 
particular tort statutes.
    (c) Interpretation will be made in accordance with FTCA case law 
and also maritime case law where applicable. Additionally, a noncombat 
activity can furnish the basis for a claim under subparts C, F, and J 
of this part. Noncombat activities include claims arising out of civil 
works, such as inverse condemnation.
    (d) Federal, not state or local, law applies to a determination as 
to who is a federal employee or a member of the armed forces. Under all 
subparts, the designation ``federal employee'' excludes a contractor of 
the United States. See 28 U.S.C. 2671. See however, Sec.  536.23(b) 
(4)(ii) concerning personal services contractors. For employment 
identification purposes apply FTCA case law in making a determination.
    (e) Federal, not state or local, law applies to an interpretation 
of the SOL under all subparts. Minority or incompetence does not toll 
the SOL. Case law developed under the FTCA will be used in other 
subparts in interpreting SOL questions.
    (f) Under the FTCA state or local law is used to determine scope of 
employment and under other subparts for guidance.


Sec.  536.42  Constitutional torts.

    A claim for violation of the U.S. Constitution does not constitute 
a state tort and is not cognizable under any subpart. A constitutional 
claim will be scrutinized in order to determine whether it is totally 
or partially payable as a state tort. For example, a Fifth Amendment 
taking may be payable in an altered form as a real estate claim. For 
further discussion see DA Pam 27-162, paragraph 2-36.


Sec.  536.43  Incident to service.

    (a) A member of the armed forces' claim for personal injury or 
wrongful death arising incident to service is not payable under any 
subpart except to the extent permitted by the receiving State under 
Sec. Sec.  536.107 through 536.113 (Claims arising overseas); however, 
a claim by a member of the United States Armed Forces for property loss 
or damage may be payable under AR 27-20, chapter 11 or, if not, under 
subparts C, E, F, or G of this part. Derivative claims and claims for 
indemnity are also excluded.
    (b) Claims for personal injury or wrongful death by members of a 
foreign military force participating in a joint military exercise or 
operation arising incident to service are not payable under any 
subpart. Claims for property loss or damage, but not subrogated claims, 
may be payable under subpart C of this part. Derivative claims and 
claims for indemnity or contribution are not payable under any subpart.


    Note to Sec.  536.43: For further discussion see DA Pam 27-162, 
paragraph 2-37.

Sec.  536.44  FECA and LSHWCA claims exclusions.

    A federal or NAFI employee's personal injury or wrongful death 
claim payable under the Federal Employees Compensation Act (FECA) or 
the Longshore and Harbor Workers Compensation Act (LSHWCA) is not 
payable under any subpart. Derivative claims are also excluded but a 
claim for indemnity may be payable under certain circumstances. A 
federal or NAFI employee's claim for an incident-to-service property 
loss or damage may be payable under AR 27-20, chapter 11 or, if not, 
under subparts C, D, F, G, H or J of this part. For further discussion 
see DA Pam 27-162, paragraph 2-38.


Sec.  536.45  Statutory exceptions.

    This topic is more fully discussed in DA Pam 27-162, paragraph 2-
39. The exclusions listed below are found at 28 U.S.C. 2680 and apply 
to subparts C, D, F, and H and Sec. Sec.  536.107 through 536.113 
(Claims arising in the United States) of subpart G, except as noted 
therein, and not to subparts E, J or Sec. Sec.  536.107-536.113 (Claims 
arising overseas) of subpart G of this part. A claim is not payable if 
it:
    (a) Is based upon an act or omission of an employee of the U.S. 
government, exercising due care, in the execution of a statute or 
regulation, whether or not such statute or regulation is valid. This 
exclusion does not apply to a noncombat activity claim.
    (b) Is based upon the exercise or performance or the failure to 
exercise or perform a discretionary function or duty on the part of a 
federal agency or an employee of the government, whether or not the 
discretion is abused. This exclusion does not apply to a noncombat 
activity claim.
    (c) Arises out of the loss, miscarriage, or negligent transmission 
of letters or postal matters. This exclusion is not applicable to 
registered or certified mail claims under subpart C of this part. See 
Sec.  536.34(i).
    (d) Arises in respect of the assessment or collection of any tax or 
customs duty, or the detention of any goods or merchandise by any 
customs or other law enforcement officer. See 28 U.S.C. 2680(c).
    (e) Is cognizable under the SIAA (46 U.S.C. app. 741-752), the PVA 
(46 U.S.C. app. 781-790), or the AEA (46 U.S.C. app. 740). This 
exclusion does not apply to subparts C, F, H or J of this part.
    (f) Arises out of an act or omission of any federal employee in 
administering the provisions of the Trading with the Enemy Act, 50 
U.S.C. app. 1-44.
    (g) Is for damage caused by the imposition or establishment of a 
quarantine by the United States.
    (h) Arises out of assault, battery, false imprisonment, false 
arrest, malicious prosecution, abuse of process, libel, slander, 
misrepresentation, deceit, or interference with contract rights, except 
for acts or omissions of investigation of law enforcement officers of 
the U.S. government with regard to assault, battery, false 
imprisonment, false arrest, abuse of process or malicious prosecution. 
This exclusion also does not apply to a health care provider as defined 
in 10 U.S.C. 1089 and Sec.  536.80 of this part, under the conditions 
listed therein.
    (i) Arises from the fiscal operations of the U.S. Department of the 
Treasury or from the regulation of the monetary system.
    (j) Arises out of the combatant activities of U.S. military or 
naval forces, or the Coast Guard during time of war.

[[Page 46278]]

    (k) Arises in a foreign country. This exclusion does not apply to 
subparts C, E, F, H, J or Sec. Sec.  536.114 through 536.116 (Claims 
arising overseas) of subpart G of this part.
    (l) Arises from the activities of the Tennessee Valley Authority, 
28 U.S.C. 2680(l).
    (m) Arises from the activities of the Panama Canal Commission, 28 
U.S.C. 2680(m).
    (n) Arises from the activities of a federal land bank, a federal 
intermediate credit bank, or a bank for cooperatives, 28 U.S.C. 
2680(n).


    Note to Sec.  536.45: This topic is more fully discussed in DA 
Pam 27-162, paragraph 2-39.

Sec.  536.46  Other exclusions.

    (a) Statutory employer. A claim is not payable under any subpart if 
it is for personal injury or death of any contract employee for whom 
benefits are provided under any workers' compensation law, if the 
provisions of the workers' compensation insurance are retrospective and 
charge an allowable expense to a cost-type contract, or if precluded by 
state law. See Federal Tort Claims Handbook (FTCH), section II, D7 
(posted on the Web at https://www.jagcnet.army.mil/laawsxxi/cds.nsf. 
Select the link ``Claims'' under ``JAG Publications.'') The statutory 
employer exclusion also applies to claims that may be covered by the 
Defense Bases Act, 42 U.S.C. 1651-1654.
    (b) Flood exclusion. Within the United States a claim is not 
payable if it arises from damage caused by flood or flood waters 
associated with the construction or operation of a COE flood control 
project, 33 U.S.C. 702(c). See DA Pam 27-162, paragraph 2-40.
    (c) ARNG property. A claim is not payable under any subpart if it 
is for damage to, or loss of, property of a state, commonwealth, 
territory, or the District of Columbia caused by ARNG personnel, 
engaged in training or duty under 32 U.S.C. 316, 502, 503, 504, or 505, 
who are assigned to a unit maintained by that state, commonwealth, 
territory, or the District of Columbia. See DA Pam 27-162, paragraph 2-
41.
    (d) Federal Disaster Relief Act. Within the United States a claim 
is not payable if it is for damage to, or loss of, property or for 
personal injury or death arising out of debris removal by a federal 
agency or employee in carrying out the provisions of the Federal 
Disaster Relief Act, 42 U.S.C. 5173. See DA Pam 27-162, paragraph 2-42.
    (e) Non-justiciability doctrine. A claim is not payable under any 
subpart if it arises from activities that present a non-justiciable 
political question. See DA Pam 27-162, paragraph 2-43.
    (f) National Vaccine Act. (42 U.S.C. 300aa-l through 300aa-7). A 
claim is not payable under any subpart if it arises from the 
administration of a vaccine unless the conditions listed in the 
National Vaccine Injury Compensation Program (42 U.S.C. 300aa-9 through 
300aa-19) have been met. See DA Pam 27-162, paragraph 2-17c(6)(a).
    (g) Defense Mapping Agency. A claim is not payable under any 
subpart if it arises from inaccurate charting by the Defense Mapping 
Agency, 10 U.S.C. 456. See FTCH section II, B4s (Web address at 
paragraph (a) of this section).
    (h) Quiet Title Act. Within the U.S., a claim is not payable if it 
falls under the Quiet Title Act 28 U.S.C. 2409a.
    (i) Defense Bases Act. A claim arising outside the United States is 
not payable if it is covered by the Defense Bases Act, 42 U.S.C. 1651-
1654.


    Note to Sec.  536.46: See parallel discussion at DA Pam 27-162, 
paragraphs 2-40 through 2-43.

Sec.  536.47  Statute of limitations.

    To be payable, a claim against the United States under any subpart, 
except Sec. Sec.  536.114 through 536.116 (Claims arising overseas), 
must be filed no later than two years from the date of accrual as 
determined by federal law. The accrual date is the date on which the 
claimant is aware of the injury and its cause. The claimant is not 
required to know of the negligent or wrongful nature of the act or 
omission giving rise to the claim. The date of filing is the date of 
receipt by the appropriate federal agency, not the date of mailing. See 
also Sec.  536.26(a) and parallel discussion at DA Pam 27-162, 
paragraph 2-44.


Sec.  536.48  Federal employee requirement.

    To be payable, a claim under any subpart except subpart K of this 
part, Sec. Sec.  536.153 through 536.157 (Claims involving tortfeasors 
other than nonappropriated fund employees), must be based on the acts 
or omissions of a member of the armed forces, a member of a foreign 
military force within the United States with which the United States 
has a reciprocal claims agreement, or a federal civilian employee. This 
does not include a contractor of the United States. Apply federal case 
law for interpretation. See parallel discussion at DA Pam 27-162, 
paragraph 2-46.


Sec.  536.49  Scope of employment requirement.

    To be payable, a claim must be based on acts or omissions of a 
member of the armed forces, a member of a foreign military force within 
the United States with which the United States has a reciprocal claims 
agreement, or a federal employee acting within the scope of employment, 
except for subparts E, J, or subpart K of this part, Sec. Sec.  536.153 
through 536.157 (Claims involving tortfeasors other than 
nonappropriated fund employees). A claim arising from noncombat 
activities must be based on the armed service's official activities. 
Excluded are claims based on vicarious liability or the holder theory 
in which the owner of the vehicle is responsible for any injury or 
damage regardless of who the operator was. See parallel discussion at 
DA Pam 27-162, paragraph 2-46.


Sec.  536.50  Determination of damages--applicable law.

    (a) The Federal Tort Claims Act. The whole law of the place where 
the incident giving rise to the claim occurred, including choice of law 
rules, is applicable. Therefore, the law of the place of injury or 
death does not necessarily apply. Where there is a conflict between 
local law and an express provision of the FTCA, the latter governs.
    (b) The Military Claims Act or National Guard Claims Act. See 
subparts C and F of this part. The law set forth in Sec.  536.80 
applies only to claims accruing on or after September 1, 1995. The law 
of the place of the incident giving rise to the claim will apply to 
claims arising in the United States, its commonwealths, territories and 
possessions prior to September 1, 1995. The general principles of U.S. 
tort law will apply to property damage or loss claims arising outside 
the United States prior to September 1, 1995. Established principles of 
general maritime law will apply to injury or death claims arising 
outside the United States prior to September 1, 1995. See Moragne v. 
States Marine Lines, Inc., 398 U.S. 375 (1970) and federal case law. 
Where general maritime law provides no guidance, the general principles 
of U.S. tort law will apply.
    (c) The Foreign Claims Act. See subpart J of this part. The law of 
the place of occurrence applies to the resolution of claims. However, 
the law of damages set forth in Sec.  536.139 will serve as a guide.
    (d) The Army Maritime Claims Settlement Act. Maritime law applies.
    (e) Damages not payable. Under all subparts, property loss or 
damage refers

[[Page 46279]]

to actual tangible property. Accordingly, consequential damages, 
including, but not limited to bail, interest (prejudgment or 
otherwise), or court costs are not payable. Costs of preparing, filing, 
and pursuing a claim, including expert witness fees, are not payable. 
The payment of punitive damages, that is, damages in addition to 
general and special damages that are otherwise payable, is prohibited. 
See DA Pam 27-162, paragraphs 2-56 and 3-4b.
    (f) Source of attorney's fees. Attorney's fees are taken from the 
settlement amount and not added thereto. They may not exceed 20 percent 
of the settlement amount under any subpart.


    Note to Sec.  536.50: For further discussion see DA Pam27-162, 
paragraph 2-51.

Sec.  536.51  Collateral source rule.

    Where permitted by applicable state or maritime law, damages 
recovered from collateral sources are payable under subparts D and H, 
but not under subparts C, E, F, or J of this part. For further 
discussion see DA Pam 27-162, paragraph 2-57.


Sec.  536.52  Subrogation.

    Subrogation is the substitution of one person in place of another 
with regard to a claim, demand or right. It should not be confused with 
a lien, which is an obligation of the claimant. Applicable state law 
should be researched to determine the distinction between subrogation 
and a lien. Subrogation claims are payable under subparts D and H, but 
not under subparts C, E, F or J of this part. For further discussion 
see DA Pam 27-162, paragraph 2-58.


Sec.  536.53  Evaluation of claims--general rules and guidelines.

    (a) Before claims personnel evaluate a claim:
    (1) A claimant or claimant's legal representative will be furnished 
the opportunity to substantiate the claim by providing essential 
documentary evidence according to the claim's nature including, but not 
instead of, the following: medical records and reports, witness 
statements, itemized bills and paid receipts, estimates, federal tax 
returns, W-2 forms or similar proof of loss of earnings, photographs, 
and reports of appraisals or investigation. If necessary, request 
permission, through the legal representative, to interview the 
claimant, the claimant's family, proposed witnesses and treating health 
care providers (HCPs). In a professional negligence claim, the claimant 
will submit an expert opinion when requested. State law concerning the 
requirement for an affidavit of merit should be cited.
    (2) When the claimant or the legal representative fails to respond 
in a timely manner to informal demands for documentary evidence, 
interviews, or an independent medical examination (IME), make a written 
request. Such written request provides notice to the claimant that 
failure to provide substantiating evidence will result in an evaluation 
of the claim based only on information currently in the file. When, 
despite the government's request, there is insufficient information in 
the file to permit evaluation, the claim will be denied for failure to 
document it. Failure to submit to an IME or sign an authorization to 
use medical information protected by HIPAA, for review or evaluation by 
a source other than claims personnel, are both grounds for denial for 
failure to document, provided such evaluation is essential to the 
determination of liability or damages. State a time limit, for example, 
30 or 60 days, to furnish the substantiation or expert opinion required 
in a medical malpractice claim.
    (3) If, in exchange for complying with the government's request for 
the foregoing information, the claimant or the legal representative 
requests similar information from the file, the claimant may be 
provided such information and documentation as is releasable under the 
Federal Rules of Civil Procedure (FRCP). Additionally, work product may 
be released if such release will help settle the claim. See Sec.  
536.18.
    (b) An evaluation should be viewed from the claimant's perspective. 
In other words, before denying a claim, first determine whether there 
is any reasonable basis for compromise. Certain jurisdictional issues 
and statutory bases may not be open for compromise. The incident to 
service and FECA exclusions are rarely subject to compromise, whereas 
the SOL is more subject to compromise. Factual and legal disputes are 
compromisable, frequently providing a basis for limiting damages, not 
necessarily grounds for denial. Where a precise issue of dispute is 
identified and is otherwise unresolvable, mediation by a disinterested 
qualified person, such as a federal judge, or foreign equivalent for 
claims arising under the FCA, should be obtained upon agreement with 
the claimant or the claimant's legal representative. Contributory 
negligence has given way to comparative negligence in most United 
States jurisdictions. In most foreign countries, comparative negligence 
is the rule of law.


    Note to Sec.  536.53: For further discussion see DA Pam 27-162, 
paragraph 2-59.

Sec.  536.54  Joint tortfeasors.

    When joint tortfeasors are liable, it is DA policy to pay only the 
fair share of a claim attributable to the fault of the United States 
rather than pay the claim in full and then bring suit against the joint 
tortfeasor for contribution. If payment from a joint tortfeasor is not 
forthcoming after the CJA's demand, the United States should settle for 
its fair share, provided the claimant is willing to hold the United 
States harmless. Where a joint tortfeasor's liability greatly outweighs 
that of the United States, the claim should be referred to the joint 
tortfeasor for action.


Sec.  536.55  Structured settlements.

    (a) The use of future periodic payments, including reversionary 
medical trusts, is encouraged to ensure that the injured party is 
adequately compensated and able to meet future needs.
    (1) It is necessary to ensure adequate care and compensation for a 
minor or other incompetent claimant or unemployed survivor over a 
period of years.
    (2) A medical trust is necessary to ensure the long-term 
availability of funds for anticipated future medical care, the cost of 
which is difficult to predict.
    (3) The injured party's life expectancy cannot be reasonably 
determined or is likely to be shortened.
    (b) Under subpart D of this part, structured settlements cannot be 
required but are encouraged in situations listed above or where state 
law permits them. In the case of a minor, every effort should be made 
to insure that the minor, and not the parents, receives the benefit of 
the settlement. Annuity payments at the age of majority should be 
considered. If rejected, a blocked bank account may be used.
    (c) It is the policy of the Department of Justice never to discuss 
the tax-free nature of a structured settlement.


    Note to Sec.  536.55: For further discussion, see DA Pam 27-162, 
paragraph 2-63.

Sec.  536.56  Negotiations--purpose and extent.

    It is DA policy to settle meritorious claims promptly and fairly 
through direct negotiation at the lowest possible level. The Army's 
negotiator should not admit liability as such is not necessary. 
However, the settlement should reflect diminished value where 
contributory negligence or other value-diminishing

[[Page 46280]]

factors exist. The negotiator should be thoroughly familiar with all 
aspects of the case, including the claimant's background, the key 
witnesses, the anticipated testimony and the appearance of the scene. 
There is no substitute for the claims negotiator's personal study of, 
and participation in, the case before settlement negotiations begin. If 
settlement is not possible due to the divergence in the offers, refine 
the issues as much as possible in order to expedite any subsequent 
suit. Mediation should be used if the divergence is due to an issue of 
law affecting either liability or damages. For further discussion see 
DA Pam 27-162, paragraph 2-64.


Sec.  536.57  Who should negotiate.

    An AAO or, when delegated additional authority, an ACO or a CPO, 
has authority to settle claims in an amount exceeding the monetary 
authority delegated by regulation. It is DA policy to delegate USARCS 
authority, on a case-by-case basis, to an ACO or a CPO possessing the 
appropriate ability and experience. Only an attorney should negotiate 
with a claimant's attorney. Negotiations with unrepresented claimants 
may be conducted by a non-attorney, under the supervision of an 
attorney. For further discussion see DA Pam 27-162, paragraph 2-65.


Sec.  536.58  Settlement negotiations with unrepresented claimants.

    All aspects of the applicable law and procedure, except the amount 
to be claimed, should be explained to both potential and actual 
claimants. The negotiator will ensure that the claimant is aware of 
whether the negotiator is an attorney or a non-attorney, and that the 
negotiator represents the United States. As to claims within USARCS' 
monetary authority, the chronology and details of negotiations should 
be memorialized with a written record furnished to the claimant. The 
claimant should understand that it is not necessary to hire an 
attorney, but when an attorney is needed, the negotiator should 
recommend hiring one. In a claim where liability is not an issue, the 
claimant should be informed that if an attorney is retained, the 
claimant should attempt to negotiate an hourly fee for determination of 
damages only. For further discussion see DA Pam 27-162, paragraph 2-68.


Sec.  536.59  Settlement or approval authority.

    ``Settlement authority'' is a statutory term (10 U.S.C. 2735) 
meaning that officer authorized to approve, deny or compromise a claim, 
or make final action. ``Approval authority'' means the officer 
empowered to settle, pay or compromise a claim in full or in part, 
provided the claimant agrees. ``Final action authority'' means the 
officer empowered to deny or make a final offer on a claim. Determining 
the proper officer empowered to approve or make final action on a claim 
depends on the claims statute involved and any limitations that apply 
under that statute. DA Pam 27-162, paragraph 2-69, outlines how various 
authority is delegated among offices.


Sec.  536.60  Splitting property damage and personal injury claims.

    Normally, a claim will include all damages that accrue by reason of 
the incident. Where a claimant has a claim for property damage and 
personal injury arising from the same incident, the property damage 
claim may be paid, under certain circumstances, prior to the filing of 
the personal injury claim. The personal injury claim may be filed later 
provided it is filed within the applicable statute of limitations. When 
both property damage and personal injury arise from the same incident, 
the property damage claim may be paid to either the claimant or, under 
subparts D or H of this part, the insurer and the same claimant may 
receive a subsequent payment for personal injury. Only under subparts D 
or H of this part may the insurer receive subsequent payment for 
subrogated medical bills and lost earnings when the personal injury 
claim is settled. The primary purpose of settling an injured claimant's 
property damage claim before settling the personal injury claim is to 
pay the claimant for vehicle damage expeditiously and avoid costs 
associated with delay such as loss of use, loss of business, or storage 
charges. The Commander USARCS' approval must be obtained whenever the 
estimated value of any one claim exceeds $25,000, or the value of all 
claims, actual or potential, arising from the incident exceeds $50,000; 
however, if the claim arises under the FTCA or AMCSA, only if the 
amount claimed exceeds $50,000, or $100,000 per incident.


Sec.  536.61  Advance payments.

    (a) This section implements 10 U.S.C. 2736 (Act of September 8, 
1961 (75 Stat. 488)) as amended by Public Law 90-521 (82 Stat. 874); 
Public Law 98-564 (90 Stat. 2919); and Public Law 100-465 (102 Stat. 
2005)). No new liability is created by 10 U.S.C. 2736, which merely 
permits partial advance payments, only under subparts C, F or J of this 
part, on claims not yet filed. See AR 27-20, paragraph 11-18 for 
information on emergency partial payments in personnel claims, which 
are not governed by 10 U.S.C. 2736.
    (b) The Judge Advocate General (TJAG) and the Assistant Judge 
Advocate General (TAJAG) may make advance payments in amounts not 
exceeding $100,000; the Commander USARCS, in amounts not exceeding 
$25,000, and the authorities designated in Sec. Sec.  536.78(b)(4) and 
(b)(5) and 536.101, in amounts not exceeding $10,000, subject to 
advance coordination with USARCS, if the estimated total value of the 
claim exceeds their monetary authority. Requests for advance payments 
in excess of $10,000 will be forwarded to USARCS for processing.
    (c) Under subpart J of this part, three-member foreign claims 
commissions may make advance payments under the FCA in amounts not 
exceeding $10,000, subject to advance coordination with USARCS if the 
estimated total value of the claim exceeds their monetary authority.
    (d) An advance payment, not exceeding $100,000, is authorized in 
the limited category of claims or potential claims considered 
meritorious under subparts C, F or J of this part, that result in 
immediate hardship. An advance payment is authorized only under the 
following circumstances:
    (1) The claim, or potential claim, must be determined to be 
cognizable and meritorious under the provisions of subparts C, F or J 
of this part.
    (2) An immediate need for food, clothing, shelter, medical or 
burial expenses, or other necessities exists.
    (3) The payee, so far as can be determined, would be a proper 
claimant, including an incapacitated claimant's spouse or next-of-kin.
    (4) The total damage sustained must exceed the amount of the 
advance payment.
    (5) A properly executed advance payment acceptance agreement has 
been obtained. This acceptance agreement must state that it does not 
constitute an admission of liability by the United States and that the 
amount paid shall be deducted from any subsequent award.
    (e) There is no statutory authority for making advance payments for 
claims payable under subparts D or H of this part.

    Note to Sec.  536.61: For further discussion see DA Pam 27-162, 
paragraph 2-71.


Sec.  536.62  Action memorandums.

    (a) When required. (1) All claims will be acted on prior to being 
closed except for those that are transferred. For claims on which suit 
is filed before final action,

[[Page 46281]]

see Sec.  536.66. A settlement authority may deny or pay in full or in 
part any claim in a stated amount within his or her delegated 
authority. An approval authority may pay in full or in part, but may 
not deny, a claim in a stated amount within his or her delegated 
authority. If any one claim arising out of the same incident exceeds a 
settlement or approval authority's monetary jurisdiction, all claims 
from that incident will be forwarded to the authority having 
jurisdiction.
    (2) In any claim which must be supported by an expert opinion as to 
duty, negligence, causation or damages, an expert opinion must be 
submitted upon request. All opinions must meet the standards set forth 
in Federal Rule of Evidence 702.
    (3) An action memorandum is required for all final actions 
regardless of whether payment is made electronically. The memorandum 
will contain a sufficient rendition of the facts, law or damages to 
justify the action being taken. (A model action is posted on the USARCS 
Web site; for the address see Sec.  536.2(a).)
    (b) Memorandum of Opinion. Upon completion of the investigation, 
the ACO or CPO will prepare a memorandum of opinion in the format 
prescribed at DA Pam 27-162, when a claim is forwarded to USARCS for 
action. This requirement can be waived by the USARCS AAO.
    (c) Claim brought by a claims authority or superior. A claim filed 
by an approval or settlement authority or his or her superior officer 
in the chain of command or a family member of either will be 
investigated and forwarded for final action, without recommendation, to 
the next higher settlement authority (in an overseas area, this 
includes a command claims service) or to USARCS.

    Note to Sec.  536.62: For further discussion see DA Pam 27-162, 
paragraph 2-72.


Sec.  536.63  Settlement agreements.

    (a) When required. (1) A claimant's acceptance of an award 
constitutes full and final settlement and release of any and all claims 
against the United States and its employees, except as to payments made 
under Sec. Sec.  536.60 and 536.61. A settlement agreement is required 
prior to payment on all tort claims, whether the claim is paid in full 
or in part.
    (2) DA Form 1666 (Claims Settlement Agreement) may be used for 
payment of COE claims of $2500 or less or all Army Central Insurance 
Fund and Army and Air Force Exchange Service claims.
    (3) DA Form 7500 (Tort Claim Payment Report) will be used for all 
payments from the Defense Finance and Accounting Service (DFAS), for 
example, FTCA claims of $2500 or less, FCA and MCA claims of $100,000 
or less and all maritime claims regardless of amount.
    (4) Financial Management Service (FMS) Forms 194, 196 and 197 will 
be used for all payments from the Judgment Fund, for example, FTCA 
claims exceeding $2,500, MCA and FCA claims exceeding $100,000.
    (5) An alternative settlement agreement will be used when the 
claimant is represented by an attorney, or when any of the above 
settlement agreement forms are legally insufficient (such as when 
multiple interests are present, a hold harmless agreement is reached, 
or there is a structured settlement). For further discussion, see DA 
Pam 27-162, paragraph 2-73c.
    (b) Unconditional settlement. The settlement agreement must be 
unconditional. The settlement agreement represents a meeting of the 
minds. Any changes to the agreement must be agreed upon by all parties. 
The return of a proffered settlement agreement with changes written 
thereon or on an accompanying document represents, in effect, a 
counteroffer and must be resolved. Even if the claimant signs the 
agreement and objects to its terms, either in writing or verbally, the 
settlement is defective and the objection must be resolved. Otherwise a 
final offer should be made.
    (c) Court approval. (1) When required. Court approval is required 
in a wrongful death claim, or where the claimant is a minor or 
incompetent. The claimant is responsible to obtain court approval in a 
jurisdiction that is locus of the act or omission giving rise to the 
claim or in which the claimant resides. The court must be a state or 
local court, including a probate court. If the claimant can show that 
court approval is not required under the law of the jurisdiction where 
the incident occurred or where the claimant resides, the citation of 
the statute will be provided and accompany the payment documents.
    (2) Attorney representation. If the claimant is a minor or 
incompetent, the claimant must be represented by a lawyer. If not 
already represented, the claimant should be informed that the 
requirement is mandatory unless state or local law expressly authorizes 
the parents or a person in loco parentis to settle the claim.
    (3) Costs. The cost of obtaining court approval will be factored 
into the amount of the settlement; however, the amount of the costs and 
other costs will not be written into the settlement, only the 20% 
limitation on attorney fees will be included.
    (4) Claims involving an estate or personal representative of an 
estate. On claims presented on behalf of a decedent's estate, the law 
of the state having jurisdiction should be reviewed to determine who 
may bring a claim on behalf of the estate, if court appointment of an 
estate representative is required, and if court approval of the 
settlement is required.
    (d) Signature requirements. (1) Except as noted below, all 
settlement agreements will be signed individually by each claimant. A 
limited power of attorney signed by the claimant specifically stating 
the amount being accepted and authorizing an attorney at law or in fact 
to sign is acceptable when the claimant is unavailable to sign. The 
signatures of the administrator or executor of the estate, appointed by 
a court of competent jurisdiction or authorized by local law, are 
required. The signatures of all adult beneficiaries, acknowledging the 
settlement, should be obtained unless permission is given by Commander 
USARCS. Court approval must be obtained where required by state law. If 
not required by state law, the citation of the state statute will 
accompany the payment document. Additionally, all adult heirs will sign 
as acknowledging the settlement. In lieu thereof, where the adult heirs 
are not available, the estate representative will acknowledge that all 
heirs have been informed of the settlement.
    (2) Generally, only a court-appointed guardian of a minor's estate, 
or a person performing a similar function under court supervision, may 
execute a binding settlement agreement on a minor's claim. In the 
United States, the law of the state where the minor resides or is 
domiciled will determine the age of majority and the nature and type of 
court approval that is needed, if any. The age of majority is 
determined by the age at the time of settlement, not the date of 
filing.
    (3) For claims arising in foreign countries where the amount agreed 
upon does not exceed $2,500, the requirement to obtain a guardian may 
be eliminated. For settlements over $2,500, whether or not the claim 
arose in the United States, refer to applicable local law, including 
the law of the foreign country where the minor resides.
    (4) In claims where the claimant is an incompetent, and for whom a 
guardian has been appointed by a court of competent jurisdiction, the 
signature of the guardian must be obtained. In cases in which 
competence of the claimant appears doubtful, a written statement by

[[Page 46282]]

the plaintiff's attorney and a member of the immediate family should be 
obtained.
    (5) Settlement agreements involving subrogated claims must be 
executed by a person authorized by the corporation or company to act in 
its behalf and accompanied by a document signed by a person authorized 
by the corporation or company to delegate execution authority.
    (6) If it is believed that the foregoing requirements are 
materially impeding settlement of the claim, bring the matter to the 
attention of the Commander USARCS for appropriate resolution.
    (e) Attorneys' fees and costs. (1) Attorneys' fees for all subparts 
fall under the American Rule and are payable only out of the up front 
cash in any settlement. Attorneys' fees will be stated separately in 
the settlement agreement as a sum not to exceed 20% of the award.
    (2) Costs are a matter to be determined solely between the attorney 
and the claimant and will not be set forth or otherwise enumerated in 
the settlement agreement.
    (f) Claims involving workers' compensation carriers. The settlement 
of a claim involving a claimant who has elected to receive workers' 
compensation benefits under local law may require the consent of the 
workers' compensation insurance carrier, and in certain jurisdictions, 
the state agency that has authority over workers' compensation awards. 
Accordingly, claims approval and settlement authorities should be aware 
of local requirements.
    (g) Claims involving multiple interests. Where two or more parties 
have an interest in the claim, obtain signatures on the settlement 
agreement from all parties. Examples are where both the subrogee and 
subrogor file a single claim for property damage, where both landlord 
and tenant file a claim for damage to real property, or when a POV is 
leased, both the lessor or lessee.
    (h) Claims involving structured settlements. All settlement 
agreements involving structured settlements will be prepared by the 
Tort Claims Division, USARCS, and approved by the Chief or Deputy 
Chief, Tort Claims Division.


Sec.  536.64  Final offers.

    (a) When claims personnel believe that a claim should be 
compromised, and after every reasonable effort has been made to settle 
at less than the amount claimed, a settlement authority will make a 
written final offer within his or her monetary jurisdiction or forward 
the claim to the authority having sufficient monetary jurisdiction, 
recommending a final offer under the applicable statute. The final 
offer notice will contain sufficient detail to outline each element of 
damages as well as discuss contributory negligence, the SOL or other 
reasons justifying a compromise offer. The offer letter should include 
language indicating that if the offer is not accepted within a named 
time period, for example, 30 or 60 days, the offer is withdrawn and the 
claim is denied.
    (b) A final offer under subpart D of this part will notify the 
claimant of the right to sue, not later than six months from the 
notice's date of mailing, and of the right to request reconsideration. 
The procedures for processing a request for reconsideration are set 
forth in Sec.  536.89.
    (c) Under subparts C or F of this part, the notice will contain an 
appeal paragraph. A similar procedure will be followed in subparts E 
and H of this part. Subpart J of this part sets forth its own 
procedures for FCA final offers. The procedures for processing an 
appeal are set forth in Sec.  536.79 of this part. The letter must 
inform claimants of the following:
    (1) They must accept the offer within 60 days or appeal. The appeal 
should state a counteroffer.
    (2) The identity of the official who will act on the appeal, and 
the requirement that the appeal will be addressed to the settlement 
authority who last acted on the claim.
    (3) No form is prescribed for the appeal, but the notice of appeal 
must fully set forth the grounds for appeal or state that it is based 
on the record as it exists at the time of denial or final offer.
    (4) The appeal must be postmarked not later than 60 days after the 
date of mailing of the final notice of action. If the last day of the 
appeal period falls on a Saturday, Sunday, or legal holiday, as 
specified in Rule 6a of the Federal Rules of Civil Procedure, the 
following day will be considered the final day of the appeal period.
    (d) Where a claim for the same injury falls under both subparts C 
and D of this part (the MCA and the FTCA), and the denial or final 
offer applies equally to each such claim, the letter of notification 
must advise the claimant that any suit brought on any portion of the 
claim filed under the FTCA must be brought not later than six months 
from the date of mailing of the notice of final offer and any appeal 
under subpart C of this part must be made as stated in paragraph (c) of 
this section. Further, the claimant must be advised that if suit is 
brought, action on any appeal under subpart C of this part will be held 
in abeyance pending final determination of such suit.
    (e) Upon request, the settlement authority may extend the six-month 
reconsideration or 60-day appeal period provided good cause is shown. 
The claimant will be notified as to whether the request is granted 
under the FTCA and that the request precludes the filing of suit under 
the FTCA for 6 months. Only one reconsideration is authorized. 
Accordingly, that claimant should be informed of the need to make all 
submissions timely.


    Note to Sec.  536.64: For further discussion see DA Pam 27-162, 
paragraph 2-74.

Sec.  536.65  Denial notice.

    (a) Where there is no reasonable basis for compromise, a settlement 
authority will deny a claim within his or her monetary jurisdiction or 
forward the claim recommending denial to the settlement authority that 
has jurisdiction. The denial notice will contain instructions on the 
right to sue or request reconsideration. The notice will state the 
basis for denial. No admission of liability will be made. A notice to 
an unrepresented claimant should detail the basis for denial in lay 
language sufficient to permit an informed decision as to whether to 
request appeal or reconsideration. In the interest of deterring 
reconsideration, appeal or suit, a denial notice may be releasable 
under the Federal Rules of Civil Procedure or by the work product 
documents doctrine.
    (b) Regardless of the claim's nature or the statute under which it 
may be considered, letters denying claims on jurisdictional grounds 
that are valid, certain, and not easily overcome (and for this reason 
no detailed investigation as to the merits of the claim was conducted), 
must state that denial on such grounds is not to be construed as an 
opinion on the merits of the claim or an admission of liability. In 
medical malpractice claims, the denial should state that the file is 
being referred to U.S. Army Medical Command for review. If sufficient 
factual information exists to make a tentative ruling on the merits of 
the claim, liability may be expressly denied.


    Note to Sec.  536.65: See Sec.  536.53, on denying a claim for 
failure to substantiate. In addition, the procedures and rules in DA 
Pam 27-162, paragraph 2-69, settlement and approval authority, apply 
equally to the denial of claims. See also DA Pam 27-162, paragraph 
2-75.

Sec.  536.66  The ``Parker'' denial.

    (a) When suit is filed before final action is taken on a subpart D 
of this part claim, a denial letter will be issued only upon request of 
DOJ or the trial

[[Page 46283]]

attorney. If suit is filed prematurely or in error, the claimant may be 
requested to withdraw the suit without prejudice. Such a request must 
be coordinated with the trial attorney.
    (b) Claimants who have filed companion claims should be notified 
that, due to suit being filed, no action can be taken pending the 
outcome of suit and they may file suit if they wish.


    Note to Sec.  536.66: For further discussion see DA Pam 27-162, 
paragraph 2-76.

Sec.  536.67  Mailing procedures.

    Thirty or sixty day letters seeking information from claimants, 
final offers and denial notices are time-sensitive as they require a 
claimant to take additional action within certain time limits. 
Accordingly, follow procedures to ensure that the date of mailing and 
receipt of a request for reconsideration are documented. Use certified 
mail with return receipt requested (or registered mail, if being sent 
to a foreign country other than by the military postal system) to mail 
such notices. Upon receipt, an appeal or request for reconsideration 
will be date-time stamped, logged in, and acknowledged as set forth in 
Sec.  536.68.


    Note to Sec.  536.67: See also AR 27-20, paragraph 13-5, and DA 
Pam 27-162, paragraph 2-77.

Sec.  536.68  Appeal or reconsideration.

    (a) An appeal or a request for reconsideration will be acknowledged 
in writing. A request for reconsideration under subpart D of this part 
invokes the six-month period during which suit cannot be filed, 28 CFR 
14.9(b). The acknowledgment letter will underscore this restriction.
    (b) Where the contents of the appeal or request for reconsideration 
indicate, additional investigation will be conducted and the original 
action changed if warranted. Except for subpart J of this part, which 
sets forth separate rules for FCCs, if the relief requested is not 
warranted the settlement authority will forward the claim to a higher 
settlement authority with a claims memorandum of opinion (see Sec.  
536.62) stating the reasons why the request is invalid.


    Note to Sec.  536.68: See also DA Pam 27-162, paragraph 2-78.

Sec.  536.69  Retention of file.

    After final action has been taken, the settlement authority will 
retain the file until at least one month after either the period of 
filing suit or the appeal has expired and until all data has been 
entered into the database. A paid claim file will be retained until 
final action has been taken on all other claims arising out of the same 
incident. If any single claim arising out of the same incident must be 
forwarded to higher authority for final action, all claims files for 
that incident will be forwarded at the same time. For further 
discussion see DA Pam 27-162, paragraph 2-79.


Sec.  536.70  Preparation and forwarding of payment vouchers.

    (a) An unrepresented claimant will be listed as the sole payee. 
Joint claimants will not be listed since settlement agreements must 
specify the amount payable to each claimant individually and each must 
be issued a separate check.
    (b) When a claimant is represented by an attorney, only one payment 
voucher will be issued with the claimant and the attorney as joint 
payees. The payment will be sent to the office of the claimant's 
attorney. The attorney of record, either an individual or firm 
designated by the claimant, will be the co-payee. If claimant has been 
represented by other attorneys in the same claim, such attorneys will 
not be listed as payees, even if they have a lien. Satisfaction of any 
such fee will be a matter between the claimant and such attorney. If 
payment is made by electronic transfer, the funds will be paid into the 
account of the claimant. However, if requested, the payment may be made 
into the attorney's escrow account provided the claimant has provided 
written authorization.
    (c) In a structured settlement the structured settlement broker 
will be the sole payee, who is authorized to issue checks for the 
amounts set forth in the settlement agreement. The up-front cash 
payment may be deposited into an escrow account established for the 
benefit of the claimant.
    (d) If a claimant is a minor or has been declared incompetent by a 
court or other authority authorized to do so, payment will be made to 
the court-appointed guardian of the minor or incompetent, at a 
financial institution approved by the court approving the settlement.
    (e) If the claimant is representing a deceased's estate on a 
wrongful death claim, or a survival action on behalf of the deceased, 
the payment will be made to the court-appointed representative of the 
estate. No payment will be made directly to the estate.


    Note to Sec.  536.70: See also Sec.  536.63 and DA Pam 27-162, 
paragraphs 2-73 and 2-81.

Sec.  536.71  Fund sources.

    (a) 31 U.S.C. 1304 sets forth the type and limits of claims payable 
out of the Judgment Fund. Only final payments that are not payable out 
of agency funds are allowable, per the Treasury Financial Manual, 
Volume I, part 6, Chapter 3110, at Section 3115, September 2000 
(available at http://www.fms.treas.gov/tfm/vol1/v1p6c310.pdf). 
Threshold amounts for payment from the judgment fund vary according to 
the subpart and statutes under which a claim is processed. To determine 
the threshold amount for any given payment procedure one must arrive at 
a sum of all awards for all claims arising out of that incident, 
including derivative claims. A joint amount is not acceptable. A claim 
for injury to a spouse or a child is a separate claim from one for loss 
of consortium or services by a spouse or parent. The monetary limits of 
$2,500 set forth in subpart D and $100,000 set forth in subparts C, F 
or J of this part, apply to each separate claim.
    (b) A subpart D, E, or subpart G of this part, Sec. Sec.  536.107 
through 536.113 claim for $2,500 or less is paid from the open claims 
allotment (see AR 27-20 paragraph 13-6b(1)) or, if arising from a 
project funded by a civil works appropriation, from COE civil works 
funds. The Department of the Treasury pays any settlement exceeding 
$2,500 in its entirety, from the Judgment Fund. However, if a subpart G 
of this part, Sec. Sec.  536.107-536.113 claim is treated as a 
noncombat activity claim, payment is made as set forth in paragraph (c) 
of this section.
    (c) The first $100,000 for each claimant on a claim settled under 
subparts C, F or J of this part is paid from the open claims allotment. 
Any amount over $100,000 is paid out of the Judgment Fund.
    (d) If not over $500,000, a claim arising under subpart H of this 
part is paid from the open claims allotment or civil works project 
funds as appropriate. A claim exceeding $500,000 is paid entirely by a 
deficiency appropriation.
    (e) AAFES or NAFI claims are paid from nonappropriated funds, 
except when such claims are subject to apportionment between 
appropriated and nonappropriated funds. See DA Pam 27-162, paragraph 2-
80h.
    (f) COE claims arising out of projects not funded out of civil 
works project funds are payable from the open claims allotment not to 
exceed $2,500 for subpart D claims and $100,000 for claims arising from 
subparts C, F or J of this part and from the Judgment Fund, over such 
amounts.


    Note to Sec.  536.71: For further discussion see DA Pam 27-162, 
paragraph 2-80.


[[Page 46284]]




Sec.  536.72  Finality of settlement.

    A claimant's acceptance of an award, except for an advance payment 
or a split payment for property damage only, constitutes a release of 
the United States and its employees from all liability. Where 
applicable, a release should include the ARNG or the sending State. For 
further discussion see DA Pam 27-162, paragraph 2-82.

Subpart C--Claims Cognizable Under the Military Claims Act


Sec.  536.73  Statutory authority for the Military Claims Act.

    The statutory authority for this subpart is contained in the Act of 
August 10, 1956 (70A Stat. 153, 10 U.S.C. 2733), commonly referred to 
as the Military Claims Act (MCA), as amended by 90-521, September 1968 
(82 Stat. 874); Public Law 90-522, September 1968 (82 Stat. 875); 
Public Law 90-525, September 1968 (82 Stat. 877); Public Law 93-336, 
July 8, 1974 (88 Stat. 291); Public Law 98-564, October 1984 (98 Stat. 
2918); and Public Law 103-337, October 1994 (108 Stat. 2664).


Sec.  536.74  Scope for claims under the Military Claims Act.

    (a) The guidance set forth in this subpart applies worldwide and 
prescribes the substantive bases and special procedural requirements 
for the settlement of claims against the United States for death or 
personal injury, or damage to, or loss or destruction of, property:
    (1) Caused by military personnel or civilian employees (enumerated 
in Sec.  536.23(b)) acting within the scope of their employment, except 
for non-federalized Army National Guard soldiers as explained in 
subpart F of this part; or
    (2) Incident to the noncombat activities of the armed services (see 
AR 27-20, Glossary).
    (b) A tort claim arising in the United States, its commonwealths, 
territories, and possessions may be settled under this subpart if the 
Federal Tort Claims Act (FTCA) does not apply to the type of claim 
under consideration or if the claim arose incident to noncombat 
activities. For example, a claim by a service member for property loss 
or damage incident to service may be settled if the loss arises from a 
tort and is not payable under AR 27-20, Chapter 11.
    (c) A tort claim arising outside the United States may be settled 
under this subpart only if the claimant has been determined to be an 
inhabitant (normally a resident) of the United States at the time of 
the incident giving rise to the claim. See Sec.  536.136(b).


Sec.  536.75  Claims payable under the Military Claims Act.

    (a) General. Unless otherwise prescribed, a claim for personal 
injury, death, or damage to, or loss or destruction of, property is 
payable under this subpart when:
    (1) Caused by an act or omission of military personnel or civilian 
employees of the DA or DOD, acting within the scope of their 
employment, that is determined to be negligent or wrongful; or
    (2) Incident to the noncombat activities of the armed services.
    (b) Property. Property that may be the subject of claims for loss 
or damage under this subpart includes:
    (1) Real property used and occupied under lease (express, implied, 
or otherwise). See Sec.  536.34(m) and paragraph 2-15m of DA Pam 27-
162.
    (2) Personal property bailed to the government under an agreement 
(express or implied), unless the owner has expressly assumed the risk 
of damage or loss.
    (3) Registered or insured mail in the DA's possession, even though 
the loss was caused by a criminal act.
    (4) Property of a member of the armed forces that is damaged or 
lost incident to service, if such a claim is not payable as a personnel 
claim under AR 27-20, chapter 11.
    (c) Maritime claims. Claims that arise on the high seas or within 
the territorial waters of a foreign country are payable unless settled 
under subpart H of this part.


Sec.  536.76  Claims not payable under the Military Claims Act.

    (a) Those resulting wholly from the claimant's or agent's negligent 
or wrongful act. (See Sec.  536.77(a)(1)(i) on contributory 
negligence).
    (b) Claims arising from private or domestic obligations rather than 
from government transactions.
    (c) Claims based solely on compassionate grounds.
    (d) A claim for any item, the acquisition, possession, or 
transportation of which was in violation of DA directives, such as 
illegal war trophies.
    (e) Claims for rent, damage, or other payments involving the 
acquisition, use, possession or disposition of real property or 
interests therein by and for the Department of the Army (DA) or 
Department of Defense (DOD). See Sec.  536.34(m) and paragraph 2-15m of 
DA Pam 27-162.
    (f) Claims not in the best interests of the United States, contrary 
to public policy, or otherwise contrary to the basic intent of the 
governing statute (10 U.S.C. 2733); for example, claims for property 
damage or loss or personal injury or death of inhabitants of unfriendly 
foreign countries or individuals considered to be unfriendly to the 
United States. When a claim is considered not payable for the reasons 
stated in this section, it will be forwarded for appropriate action to 
the Commander USARCS with the recommendations of the responsible claims 
office.
    (g) Claims presented by a national, or a corporation controlled by 
a national, of a country at war or engaged in armed conflict with the 
United States, or any country allied with such enemy country unless the 
appropriate settlement authority determines that the claimant is, and 
at the time of the incident was, friendly to the United States. A 
prisoner of war or an interned enemy alien is not excluded from 
bringing an otherwise payable claim for damage, loss, or destruction of 
personal property in the custody of the government.
    (h) A claim for damages or injury, which a receiving State should 
adjudicate and pay under an international agreement, unless a 
consistent and widespread alternative process of adjudicating and 
paying such claims has been established within the receiving State. See 
DA Pam 27-162, paragraph 3-4a, for further discussion of the conditions 
of waiver.
    (i) Claims listed in Sec. Sec.  536.42, 536.43, 536.44, 536.45, and 
536.46 of this part, except for the exclusion listed in Sec.  
536.45(k). Additionally, the exclusions in Sec. Sec.  536.45(a), (b), 
(e) and (k) do not apply to a claim arising incident to noncombat 
activities.
    (j) Claims based on strict or absolute liability and similar 
theories.
    (k) Claims payable under subparts D or J of this part, or under AR 
27-20, chapter 11.
    (l) Claims involving DA vehicles covered by insurance in accordance 
with requirements of a foreign country unless coverage is exceeded or 
the insurer is bankrupt. When an award is otherwise payable and an 
insurance settlement is not reasonably available, a field claims office 
should request permission from the Commander USARCS to pay the award, 
provided that an assignment of benefits is obtained.


Sec.  536.77  Applicable law for claims under the Military Claims Act.

    (a) General principles. (1) Tort claims excluding claims arising 
out of noncombat activities. (i) In determining liability, such claims 
will be evaluated

[[Page 46285]]

under general principles of law applicable to a private individual in 
the majority of American jurisdictions, except where the doctrine of 
contributory negligence applies. The MCA requires that contributory 
negligence be interpreted and applied according to the law of the place 
of the occurrence, including foreign (local) law for claims arising in 
foreign countries (see 10 U.S.C. 2733(b)(4)).
    (ii) Claims are cognizable when based on those acts or omissions 
recognized as tortious by a majority of jurisdictions that require 
proof of duty, negligence, and proximate cause resulting in compensable 
injury or loss subject to the exclusions set forth at Sec.  536.76. 
Strict or absolute liability and similar theories are not grounds for 
liability under this subpart.
    (2) Tort claims arising out of noncombat activities. Claims arising 
out of noncombat activities under Sec. Sec.  536.75(a)(2) and (b) are 
not tort claims and require only proof of causation. However, the 
doctrine of contributory negligence will apply, to the extent set forth 
in 10 U.S.C. 2733(b)(4) and paragraph (a)(1)(i) of this section.
    (3) Principles applicable to all subpart C claims. (i) 
Interpretation of meanings and construction of questions of law under 
the MCA will be determined in accordance with federal law. The 
formulation of binding interpretations is delegated to the Commander 
USARCS, provided that the statutory provisions of the MCA are followed.
    (ii) Scope of employment will be determined in accordance with 
federal law. Follow guidance from reported FTCA cases. The formulation 
of a binding interpretation is delegated to the Commander USARCS, 
provided the statutory provisions of the MCA are followed.
    (iii) The collateral source doctrine is not applicable.
    (iv) The United States will only be liable for the portion of loss 
or damage attributable to the fault of the United States or its 
employees. Joint and several liability is inapplicable.
    (v) No allowance will be made for court costs, bail, interest, 
inconvenience or expenses incurred in connection with the preparation 
and presentation of the claim.
    (vi) Punitive or exemplary damages are not payable.
    (vii) Claims for negligent infliction of emotional distress may 
only be entertained when the claimant suffered physical injury arising 
from the same incident as the claim for emotional distress, or the 
claimant is the immediate family member of an injured party/decedent, 
was in the zone of danger and manifests physical injury for the 
emotional distress. Claims for intentional infliction of emotional 
distress will be evaluated under general principles of American law as 
set forth in paragraph (a)(1)(i) of this section and will be considered 
as an element of damages under paragraph (b)(3)(ii) of this section. 
Claims for either negligent or intentional infliction of emotional 
distress are excluded when they arise out of assault, battery, false 
arrest, false imprisonment, malicious prosecution, abuse of process, 
libel, or slander, as defined in Sec.  536.45(h).
    (viii) In a claim for personal injury or wrongful death, the total 
award for non-economic damages to any direct victim and all persons, 
including those derivative to the claim, who claim injury by or through 
that victim will not exceed $500,000. However, separate claims for 
emotional distress considered under paragraph (b)(1) of this section 
are not subject to the $500,000 cap for the wrongful death claim as 
they are not included in the wrongful death claim; rather, each is a 
separate claim with its own $500,000 cap under paragraph (b)(3)(ii) of 
this section. Continuous or repeated exposure to substantially the same 
or similar harmful activity or conditions is treated as one incident 
for the purposes of determining the extent of liability. If the claim 
accrued prior to September 1, 1995, these limitations do not apply. Any 
such limitation in the law of the place of occurrence will apply.
    (b) Personal injury claims. (1) Eligible claimants. Only the 
following may claim:
    (i) Persons who suffer physical injuries or intentional emotional 
distress, but not subrogees (when claiming property loss or damage, 
medical expenses or lost earnings); see paragraph (a)(3)(iii) of this 
section.
    (ii) Spouses for loss of consortium, but not parent-child or child-
parent loss of consortium;
    (iii) Members of the immediate family who were in the zone of 
danger of the injured person as defined in paragraph (a)(3)(vii) of 
this section.
    (2) Economic damages. Elements of economic damage are limited to 
the following:
    (i) Past expenses, including medical, hospital and related expenses 
actually incurred. Nursing and similar services furnished gratuitously 
by a family member are compensable. Itemized bills or other suitable 
proof must be furnished. Expenses paid by, or recoverable from, 
insurance or other sources are not recoverable.
    (ii) Future medical, hospital, and related expenses. When 
requested, a medical examination is required.
    (iii) Past lost earnings as substantiated by documentation from 
both the employer and a physician.
    (iv) Loss of earning capacity and ability to perform services, as 
substantiated by acceptable medical proof. When requested, past federal 
income tax forms must be submitted for the previous five years and the 
injured person must undergo an independent medical examination (IME). 
Estimates of future losses must be discounted to present value at a 
discount rate of one to three percent after deducting for income taxes. 
When a medical trust providing for all future care is established, 
personal consumption may be deducted from future losses.
    (v) Compensation paid to a person for essential household services 
that the injured person can no longer provide for himself or herself. 
These costs are recoverable only to the extent that they neither have 
been paid by, nor are recoverable from, insurance.
    (3) Non-economic damages. Elements of non-economic damages are 
limited to the following:
    (i) Past and future conscious pain and suffering. This element is 
defined as physical discomfort and distress as well as mental and 
emotional trauma. Loss of enjoyment of life, whether or not it is 
discernible by the injured party, is compensable. The inability to 
perform daily activities that one performed prior to injury, such as 
recreational activities, is included in this element. Supportive 
medical records and statements by health care personnel and 
acquaintances are required. When requested, the claimant must submit to 
an interview.
    (ii) Emotional distress. Emotional distress under the conditions 
set forth in paragraph (a)(3)(vii) of this section.
    (iii) Physical disfigurement. This element is defined as impairment 
resulting from an injury to a person that causes diminishment of beauty 
or symmetry of appearance rendering the person unsightly, misshapen, 
imperfect, or deformed. A medical statement and photographs, 
documenting claimant's condition, may be required.
    (iv) Loss of consortium. This element is defined as conjugal 
fellowship of husband and wife and the right of each to the company, 
society, cooperation, and affection of the other in every conjugal 
relation.
    (c) Wrongful death claims. The law of the place of the incident 
giving rise to the claim will apply to claims arising in the United 
States, its commonwealths, territories or possessions.

[[Page 46286]]

    (1) Claimant. (i) Only one claim may be presented for a wrongful 
death. It shall be presented by the decedent's personal representative 
on behalf of all parties in interest. The personal representative must 
be appointed by a court of competent jurisdiction prior to any 
settlement and must agree to make distribution to the parties in 
interest under court jurisdiction, if required.
    (ii) Parties in interest are the surviving spouse, children, or 
dependent parents to the exclusion of all other parties. If there is no 
surviving spouse, children, or dependent parents, the next of kin will 
be considered a party or parties in interest. A dependent parent is one 
who meets the criteria set forth by the Internal Revenue Service to 
establish eligibility for a DOD identification card.
    (2) Economic loss. Elements of economic damages are limited to the 
following:
    (i) Loss of monetary support of a family member from the date of 
injury causing death until expiration of decedent's worklife 
expectancy. When requested, the previous five years federal income tax 
forms must be submitted. Estimates must be discounted to present value 
at one to three percent after deducting for taxes and personal 
consumption. Loss of retirement benefits is compensable and similarly 
discounted after deductions.
    (ii) Loss of ascertainable contributions, such as money or gifts to 
other than family member claimants as substantiated by documentation or 
statements from those concerned.
    (iii) Loss of services from date of injury to end of life 
expectancy of the decedent or the person reasonably expected to receive 
such services, whichever is shorter.
    (iv) Expenses as set forth in paragraph (b)(2)(i) of this section. 
In addition, burial expenses are allowable. Expenses paid by, or 
recoverable from, insurance or other sources are not recoverable.
    (3) Non-economic loss. Elements of damages are limited to the 
following:
    (i) Pre-death conscious pain and suffering.
    (ii) Loss of companionship, comfort, society, protection, and 
consortium suffered by a spouse for the death of a spouse, a child for 
the death of a parent, or a parent for the death of a child.
    (iii) Loss of training, guidance, education, and nurture suffered 
by a child under the age of 18 for the death of a parent, until the 
child becomes 18 years old.
    (iv) Claims for the survivors' emotional distress, mental anguish, 
grief, bereavement, and anxiety are not payable, in particular claims 
for intentional or negligent infliction of emotional distress to 
survivors arising out of the circumstances of a wrongful death are 
personal injury claims falling under Sec.  536.77(b)(3).
    (d) Property damage claims. The following provisions apply to all 
claims arising in the United States, its commonwealths, territories and 
possessions.
    (1) Such claims are limited to damage to, or loss of, tangible 
property and costs directly related thereto. Consequential damages are 
not included. (See Sec.  536.50(e) and DA Pam 27-162, paragraph 2-56a.)
    (2) Proper claimants are described in Sec.  536.27. Claims for 
subrogation are excluded. (See Sec.  536.27(e)). However, there is no 
requirement that the claimant use personal casualty insurance to 
mitigate the loss.
    (3) Allowable elements of damages and measure of proof (additions 
to these elements are permissible with concurrence of the Commander 
USARCS). These elements are discussed in detail in DA Pam 27-162, 
paragraph 2-54.
    (i) Damages to real property.
    (ii) Damage to or loss of personal property, or personal property 
that is not economically repairable.
    (iii) Loss of use.
    (iv) Towing and storage charges.
    (v) Loss of business or profits.
    (vi) Overhead.


Sec.  536.78  Settlement authority for claims under the Military Claims 
Act.

    (a) Authority of the Secretary of the Army. The Secretary of the 
Army, the Army General Counsel, as the Secretary's designee, or another 
designee of the Secretary of the Army may approve settlements in excess 
of $100,000.
    (b) Delegations of authority. (1) Denials and final offers made 
under the delegations set forth herein are subject to appeal to the 
authorities specified in paragraph (d) of this section.
    (2) The Judge Advocate General (TJAG) and the Assistant Judge 
Advocate General (TAJAG) are delegated authority to pay up to $100,000 
in settlement of a claim and to disapprove a claim regardless of the 
amount claimed.
    (3) The Commander USARCS is delegated authority to pay up to 
$25,000 in settlement of a claim and to disapprove or make a final 
offer in a claim regardless of the amount claimed.
    (4) The Judge Advocate (JA) or Staff Judge Advocate (SJA), subject 
to limitations that USARCS may impose, and chiefs of a command claims 
service are delegated authority to pay up to $25,000 in settlement, 
regardless of the amount claimed, and to disapprove or make a final 
offer in a claim presented in an amount not exceeding $25,000.
    (5) A head of an area claims office (ACO) is delegated authority to 
pay up to $25,000 in settlement of a claim, regardless of the amount 
claimed, and to disapprove or make a final offer in a claim presented 
in an amount not exceeding $25,000. A head of a claims processing 
office (CPO) with approval authority is delegated authority to approve, 
in full or in part, claims presented for $5,000 or less, and to pay 
claims regardless of the amount claimed, provided an award of $5,000 or 
less is accepted in full satisfaction of the claim.
    (6) Authority to further delegate payment authority is set forth in 
Sec.  536.3(g)(1) of this part. For further discussions also related to 
approval, settlement and payment authority see also paragraph 2-69 of 
DA Pam 27-162.
    (c) Settlement of multiple claims arising from a single incident. 
(1) Where a single act or incident gives rise to multiple claims 
cognizable under this subpart, and where one or more of these claims 
apparently cannot be settled within the monetary jurisdiction of the 
authority initially acting on them, no final offer will be made. All 
claims will be forwarded, along with a recommended disposition, to the 
authority who has monetary jurisdiction over the largest claim for a 
determination of liability. However, where each individual claim, 
including derivative claims, can be settled within the monetary 
authority initially acting on them, and none are subject to denial, all 
such claims may be settled even though the total amount exceeds the 
monetary jurisdiction of the approving or settlement authority.
    (2) If such authority determines that federal liability is 
established, he or she may return claims of lesser value to the field 
claims office for settlement within that office's jurisdiction. The 
field claims office must take care to avoid compromising the higher 
authority's discretion by conceding liability in claims of lesser 
amount.
    (d) Appeals. Denials or final offers on claims described as follows 
may be appealed to the official designated:
    (1) For claims presented in an amount over $100,000, final 
decisions on appeals will be made by the Secretary of the Army or 
designee.
    (2) For claims presented for $100,000 or less, and any denied 
claim, regardless of the amount claimed, in which the denial was based 
solely upon an incident-to-service bar, exclusionary language in a 
federal statute governing compensation of federal employees for

[[Page 46287]]

job-related injuries (see Sec.  536.44), or untimely filing, TJAG or 
TAJAG will render final decisions on appeals, except that claims 
presented for $25,000 or less, and not acted upon by the Commander 
USARCS, are governed by paragraph (d)(3) of this section.
    (3) For claims presented for $25,000 or less, final decisions on 
appeals will be made by the Commander USARCS, his or her designee, or 
the chief of a command claims service when such claims are acted on by 
an ACO under such service's jurisdiction.
    (4) Sections 536.64, 536.65, and 536.66 of this part set forth the 
rules relating to the notification of appeal rights and processing.
    (e) Delegated authority. Authority delegated by this section will 
not be exercised unless the settlement or approval authority has been 
assigned an office code.


Sec.  536.79  Action on appeal under the Military Claims Act.

    (a) The appeal will be examined by the settlement authority who 
last acted on the claim, or his or her successor, to determine if the 
appeal complies with the requirements of this regulation. The 
settlement authority will also examine the claim file and decide 
whether additional investigation is required; ensure that all 
allegations or evidence presented by the claimant, agent, or attorney 
are documented; and ensure that all pertinent evidence is included. If 
claimants state that they appeal, but do not submit supporting 
materials within the 60-day appeal period or an approved extension 
thereof, these appeals will be determined on the record as it existed 
at the time of denial or final offer. Unless action under paragraph (b) 
of this section is taken, the claim and complete investigative file, 
including any additional investigation, and a tort claims memorandum 
will be forwarded to the appropriate appellate authority for necessary 
action on the appeal.
    (b) If the evidence in the file, including information submitted by 
the claimant with the appeal and that found by any necessary additional 
investigation, indicates that the appeal should be granted in whole or 
in part, the settlement authority who last acted on the claim, or his 
or her successor, will attempt to settle the claim. If a settlement 
cannot be reached, the appeal will be forwarded in accordance with 
paragraph (a) of this section.
    (c) As to an appeal that requires action by TJAG, TAJAG, or the 
Secretary of the Army or designee, the Commander USARCS may take the 
action in paragraph (b) of this section or forward the claim together 
with a recommendation for action. All matters submitted by the claimant 
will be forwarded and considered.
    (d) Since an appeal under this subpart is not an adversarial 
proceeding, no form of hearing is authorized. A request by the claimant 
for access to documentary evidence in the claim file to be used in 
considering the appeal will be granted unless law or regulation does 
not permit access.
    (e) If the appellate authority upholds a final offer or authorizes 
an award on appeal from a denial of a claim, the notice of the 
appellate authority's action will inform the claimant that he or she 
must accept the award within 180 days of the date of mailing of the 
notice of the appellate authority's action or the award will be 
withdrawn, the claim will be deemed denied, and the file will be closed 
without future recourse.


Sec.  536.80  Payment of costs, settlements, and judgments related to 
certain medical malpractice claims.

    (a) General. Costs, settlements, or judgments cognizable under 10 
U.S.C. 1089(f) for personal injury or death caused by any physician, 
dentist, nurse, pharmacist, paramedic, or other supporting personnel 
(including medical and dental technicians, nurse assistants, 
therapists, and Red Cross volunteers of the Army Medical Department 
(AMEDD), AMEDD personnel detailed for service with other than a federal 
department, agency, or instrumentality and direct contract personnel 
identified in the contract as federal employees), will be paid provided 
that:
    (1) The alleged negligent or wrongful actions or omissions occurred 
during the performance of medical, dental, or related health care 
functions (including clinical studies and investigations) while the 
medical or health care employee was acting within the scope of 
employment.
    (2) Such personnel furnish prompt notification and delivery of all 
process served or received and other documents, information, and 
assistance as requested.
    (3) Such personnel cooperate in the defense of the action on its 
merits.
    (b) Requests for contribution or indemnification. All requests for 
contribution or indemnification under this section should be forwarded 
to the Commander USARCS for action, following the procedures set forth 
in this subpart.


Sec.  536.81  Payment of costs, settlements, and judgments related to 
certain legal malpractice claims.

    (a) General. Costs, settlements, and judgments cognizable under 10 
U.S.C. 1054(f) for damages for personal injury or loss of property 
caused by any attorney, paralegal, or other member of a legal staff 
will be paid if:
    (1) The alleged negligent or wrongful actions or omissions occurred 
during the provision or performance of legal services while the 
attorney or legal employee was acting within the scope of duties or 
employment;
    (2) Such personnel furnish prompt notification and delivery of all 
process served or received and other documents, information, and 
assistance as requested;
    (3) Such personnel cooperate in the defense of the action on the 
merits.
    (b) Requests for contribution or indemnification. All requests for 
contribution or indemnification under this section should be forwarded 
to the Commander USARCS for action, following the procedures set forth 
in this subpart.


Sec.  536.82  Reopening an MCA claim after final action by a settlement 
authority.

    (a) Original approval or settlement authority (including TAJAG, 
TJAG, Secretary of the Army, or the Secretary's designees). (1) An 
original settlement authority may reconsider the denial of, or final 
offer on, a claim brought under the MCA upon request of the claimant or 
the claimant's authorized agent. In the absence of such a request, the 
settlement authority may on his or her initiative reconsider a claim.
    (2) An original approval or settlement authority may reopen and 
correct action on an MCA claim previously settled in whole or in part 
(even if a settlement agreement has been executed) when it appears that 
the original action was incorrect in law or fact based on the evidence 
of record at the time of the action or subsequently received. For 
errors in fact, the new evidence must not have been discoverable at the 
time of final action by either the Army or the claimant through the 
exercise of reasonable diligence. Corrective action may also be taken 
when an error contrary to the parties' mutual understanding is 
discovered in the original action. If the settlement or approval 
authority determines that their original action was incorrect, they 
will modify the action and, if appropriate, make a supplemental 
payment. The basis for a change in action will be stated in a 
memorandum included in the file. For example, a claim was settled for 
$15,000, but the settlement

[[Page 46288]]

agreement was typed to read ``$1,500'' and the error is not discovered 
until the file is being prepared for payment. If appropriate, a 
corrected payment will be made. A settlement authority who has reason 
to believe that a settlement was obtained by fraud on the part of the 
claimant or claimant's legal representative will reopen action on that 
claim and, if the belief is substantiated, correct the action. The 
basis for correcting an action will be stated in a memorandum and 
included in the file.
    (b) A successor approval or settlement authority (including TAJAG, 
TJAG, Secretary of the Army, or the Secretary's designees). (1) 
Reconsideration. A successor approval or settlement authority may 
reconsider the denial of, or final offer on, an MCA claim upon request 
of the claimant or the claimant's authorized agent only on the basis of 
fraud, substantial new evidence, errors in calculation, or mistake 
(misinterpretation) of law.
    (2) Settlement correction. A successor approval or settlement 
authority may reopen and correct a predecessor's action on a claim that 
was previously settled in whole or in part for the same reasons that an 
original authority may do so.
    (c) Time requirement for filing request for reconsideration. 
Requests postmarked more than five years from the date of mailing of 
final notice will be denied based on the doctrine of laches.
    (d) Finality of action. Action by the appropriate authority (either 
affirming the prior action or granting full or granting full or partial 
relief) is final under the provisions of 10 U.S.C. 2735. Action upon a 
request for reconsideration constitutes final administrative 
disposition of a claim. No further requests for reconsideration will be 
allowed except on the basis of fraud.

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


Sec.  536.83  Statutory authority for the Federal Tort Claims Act.

    The statutory authority for this subpart is the Federal Tort Claims 
Act (FTCA) (60 Stat. 842, 28 U.S.C. 2671-2680), as amended by Public 
Law 89-506, July 1966 (80 Stat. 306); Public Law 93-253, March 1974 (88 
Stat. 50); Public Law 97-124, December 1981 (93 Stat. 1666); Public Law 
100-694, November 1988 (102 Stat. 4563-67); and Public Law 101-552, 
November 1996 (104 Stat. 734); and as implemented by the Attorney 
General's Regulations (28 CFR 14.1 through 14.11 and its Appendix), all 
of which are posted on the USARCS Web site; for the address see Sec.  
536.2(a).


Sec.  536.84  Scope for claims under the Federal Tort Claim Act.

    (a) General. This subpart applies in the United States, its 
commonwealths, territories and possessions (all hereinafter 
collectively referred to as United States or U.S.). It prescribes the 
substantive bases and special procedural requirements under the FTCA 
and the implementing Attorney General's regulations for the 
administrative settlement of claims against the United States based on 
death, personal injury, or damage to, or loss of, property caused by 
negligent or wrongful acts or omissions by the United States or its 
employees acting within the scope of their employment. If a conflict 
exists between this part and the Attorney General's regulations, the 
latter governs.
    (b) Effect of the Military Claims Act. A tort claim arising in the 
United States, its commonwealths, territories, and possessions may be 
settled under subpart C of this part if the Federal Tort Claims Act 
(FTCA) does not apply to the type of claim under consideration or if 
the claim arose incident to noncombat activities. If a claim is filed 
under both the FTCA and the Military Claims Act (MCA), or when both 
statutes apply equally, final action thereon will follow the procedures 
set forth in DA Pam 27-162, paragraphs 2-74 through 2-76, discussing 
final offers and denial letters.


Sec.  536.85  Claims payable under the Federal Tort Claims Act.

    (a) Unless otherwise prescribed, claims for death, personal injury, 
or damage to, or loss of, property (real or personal) are payable under 
this subpart when the injury or damage is caused by negligent or 
wrongful acts or omissions of military personnel or civilian employees 
of the Department of the Army or Department of Defense while acting 
within the scope of their employment under circumstances in which the 
United States, if a private person, would be liable to the claimant in 
accordance with the law of the place where the act or omission 
occurred. The FTCA is a limited waiver of sovereign immunity without 
which the United States may not be sued in tort. Similarly, neither the 
Fifth Amendment nor any other provision of the U.S. Constitution 
creates or permits a federal cause of action allowing recovery in tort. 
Immunity must be expressly waived, as the FTCA waives it.
    (b) To be payable, a claim must arise from the acts or omissions of 
an ``employee of the government'' under 28 U.S.C. 2671. Categories of 
such employees are listed in Sec.  536.23(b) of this part.


Sec.  536.86  Claims not payable under the Federal Tort Claims Act.

    A claim is not payable if it is identified as an exclusion in DA 
Pam 27-162, paragraphs 2-36 through 2-43.


Sec.  536.87  Applicable law for claims under the Federal Tort Claims 
Act.

    The applicable law for claims falling under the Federal Tort Claims 
Act is set forth in Sec. Sec.  536.41 through 536.52.


Sec.  536.88  Settlement authority for claims under the Federal Tort 
Claims Act.

    (a) General. Subject to the Attorney General's approval of payments 
in excess of $200,000 for a single claim, or if the total value of all 
claims and potential claims arising out of a single incident exceeds 
$200,000 (for which USARCS must write an action memorandum for 
submission to the Department of Justice), the following officials are 
delegated authority to settle (including payment in full or in part, or 
denial) and make final offers on claims under this subpart:
    (1) The Judge Advocate General (TJAG);
    (2) The Assistant Judge Advocate General (TAJAG); and
    (3) The Commander USARCS.
    (b) ACO heads. A head of an area claims office (ACO) is delegated 
authority to pay up to $50,000 in settlement of a claim, regardless of 
the amount claimed, and to disapprove or make a final offer in a claim 
presented in an amount not exceeding $50,000, provided the value of all 
claims and potential claims arising out of a single incident does not 
exceed $200,000.
    (c) CPO heads. A head of a claims processing office (CPO) with 
approval authority is delegated authority to approve, in full or in 
part, claims presented for $5,000 or less, and to pay claims regardless 
of amount, provided an award of $5000 or less is accepted in full 
satisfaction of the claim.
    (d) Further guidance. Authority to further delegate payment 
authority is set forth in Sec.  536.3(g)(1) of this part. For further 
discussions related to approval, settlement and payment authority see 
paragraphs 2-69 and 2-71 of DA Pam 27-162.
    (e) Settlement of multiple claims from a single incident. (1) Where 
a single act or incident gives rise to multiple claims cognizable under 
this subpart, and where one claim cannot be settled within the monetary 
jurisdiction for one claim of the authority acting on the claim or all 
claims cannot be settled within the monetary jurisdiction for a

[[Page 46289]]

single incident, no final offer will be made. All claims will be 
forwarded, along with a recommended disposition, to the Commander 
USARCS.
    (2) If the Commander USARCS determines that all claims can be 
settled for a total of $200,000 or less, he may return claims to the 
field office for settlement. If the Commander USARCS, determines that 
all claims cannot be settled for a total of $200,000, he must request 
Department of Justice authority prior to settlement of any one claim. 
The field claims office must not concede liability by paying any one 
claim of lesser value.


Sec.  536.89  Reconsideration of Federal Tort Claims Act claims.

    (a) Reconsideration of paid claims. Under the provision of 28 
U.S.C. 2672, neither an original or successor authority may reconsider 
a claim which has been paid except as expressly set forth below. 
Payment of an amount for property damage will bar payment for personal 
injury or death except for a split claim provided the provisions of 
Sec.  536.60 are followed. Supplemental payments for either property or 
injury are barred by 10 U.S.C. 2672. Accordingly, claimants will be 
informed that only one claim or payment is permitted.
    (b) Notice of right to reconsideration. Notice of disapproval or 
final offer issued by an authority listed in Sec.  536.88(b) will 
advise the claimant of a right to reconsideration to be submitted in 
writing not later than six months from the date of mailing the notice. 
Such a request will suspend the requirement to bring suit for a minimum 
of six month or until action is taken on the request. The claimant will 
be so informed. See the Attorney General's Regulations at 28 CFR 
14.9(b), posted on the USARCS Web site; for the address see Sec.  
536.2(a).
    (c) Original approval or settlement authority. (1) Reconsideration. 
An original settlement authority may reconsider the denial of, or final 
offer on, a claim brought under the FTCA upon request of the claimant 
or the legal representative.
    (2) Settlement correction. An original approval or settlement 
authority may reopen and correct action on a claim previously settled 
in whole or in part (even if a settlement agreement has been executed) 
when an error contrary to the parties' mutual understanding is 
discovered in the original action. For example: a claim was settled for 
$15,000, but the settlement agreement was typed to read ``$1,500'' and 
the error is not discovered until the file is being prepared for 
payment. If appropriate, a corrected payment will be made. An approval 
or settlement authority who has reason to believe that a settlement was 
obtained by fraud on the part of the claimant or claimant's legal 
representative will reopen action on that claim, and if the belief is 
substantiated, correct the action. The basis for correcting an action 
will be stated in a memorandum and included in the file.
    (d) A successor approval or settlement authority. (1) 
Reconsideration. A successor approval or settlement authority may 
reconsider the denial of, or final offer on, an FTCA claim upon request 
of the claimant, the claimant's authorized agent, or the claimant's 
legal representative only on the basis of fraud, substantial new 
evidence, errors in calculation, or mistake (misinterpretation) of law.
    (2) Settlement correction. A successor approval or settlement 
authority may reopen and correct a predecessor's action on a claim that 
was previously settled in whole or in part for the same reasons that an 
original authority may do so.
    (e) Requirement to forward a request for reconsideration. When full 
relief is not granted, forward all requests for reconsideration of an 
ACO's denial or final offer to the Commander USARCS for action. Include 
all investigative material and legal analyses generated by the request.
    (f) Action prior to forwarding. A request for reconsideration 
should disclose fully the legal and/or factual bases that the claimant 
has asserted as grounds for relief and provide appropriate supporting 
documents or evidence. Following completion of any investigation or 
other action deemed necessary for an informed disposition of the 
request, the approval or settlement authority will reconsider the claim 
and attempt to settle it, granting relief as warranted. When further 
settlement efforts appear unwarranted, the entire file with a 
memorandum of opinion will be forwarded to the Commander USARCS. The 
claimant will be informed of such transfer.
    (g) Finality of action. Action by the appropriate authority (either 
affirming the prior action or granting full or partial relief) upon a 
request for reconsideration constitutes final administrative 
disposition of a claim. No further requests for reconsideration will be 
allowed except on the basis of fraud. Attempted further requests for 
reconsideration on other grounds will not toll the six-month period set 
forth in 28 U.S.C. 2401(b).

Subpart E--Claims Cognizable Under the Non-Scope Claims Act


Sec.  536.90  Statutory authority for the Non-Scope Claims Act.

    The statutory authority for this subpart is set forth in the Act of 
October 1962, 10 U.S.C. 2737, 76 Stat. 767, commonly called the ``Non-
Scope Claims Act (NSCA).''


Sec.  536.91  Scope for claims under the Non-Scope Claims Act.

    (a) This subpart applies worldwide and prescribes the substantive 
bases and special procedural requirements for the administrative 
settlement and payment of not more than $1,000 for any claim against 
the United States for personal injury, death or damage to, or loss of, 
property caused by military personnel or civilian employees, incident 
to the use of a U.S. vehicle at any location, or incident to the use of 
other U.S. property on a government installation, which claim is not 
cognizable under any other provision of law.
    (b) For the purposes of this subpart, a ``government installation'' 
is a facility having fixed boundaries owned or controlled by the 
government, and a ``vehicle'' includes every description of carriage or 
other artificial contrivance used, or capable of being used, as means 
of transportation on land (1 U.S.C. 4).
    (c) Any claim in which there appears to be a dispute about whether 
the employee was acting within the scope of employment will be 
considered under subparts C, D, or F of this part. Only when all 
parties, including an insurer, agree that there is no ``in scope'' 
issue will the claim be considered under this subpart.


Sec.  536.92  Claims payable under the Non-Scope Claims Act.

    (a) General. A claim for personal injury, death, or damage to, or 
loss of, property, real or personal, is payable under this subpart 
when:
    (1) Caused by negligent or wrongful acts or omissions of Department 
of Defense or Department of the Army (DA) military personnel or 
civilian employees, as listed in Sec.  536.23(b):
    (i) Incident to the use of a vehicle belonging to the United States 
at any place or;
    (ii) Incident to the use of any other property belonging to the 
United States on a government installation.
    (2) The claim is not payable under any other claims statute or 
regulation available to the DA for the administrative settlement of 
claims.
    (b) Personal injury or death. A claim for personal injury or death 
is allowable only for the cost of reasonable medical,

[[Page 46290]]

hospital, or burial expenses actually incurred and not otherwise 
furnished or paid by the United States.
    (c) Property loss or damage. A claim for damage to or loss of 
property is allowable only for the cost of reasonable repairs or value 
at time of loss, whichever is less.


Sec.  536.93  Claims not payable under the Non-Scope Claims Act.

    Under this subpart, a claim is not payable that:
    (a) Results in whole or in part from the negligent or wrongful act 
of the claimant or his or her agent or employee. The doctrine of 
comparative negligence does not apply.
    (b) Is for medical, hospital, or burial expenses furnished or paid 
by the United States.
    (c) Is for any element of damage pertaining to personal injuries or 
death other than as provided in Sec.  536.93(b). All other items of 
damage, for example, compensation for loss of earnings and services, 
diminution of earning capacity, anticipated medical expenses, physical 
disfigurement and pain and suffering are not payable.
    (d) Is for loss of use of property or for the cost of substitute 
property, for example, a rental.
    (e) Is legally recoverable by the claimant under an indemnifying 
law or indemnity contract. If the claim is in part legally recoverable, 
the part recoverable by the claimant is not payable.
    (f) Is a subrogated claim.
    (g) In some circumstances some claims may be partially payable. See 
DA Pam 27-162, paragraph 5-4 for more information on claims that may be 
partially payable.


Sec.  536.94  Settlement authority for claims under the Non-Scope 
Claims Act.

    (a) Settlement authority. The following are delegated authority to 
pay up to $1,000 in settlement of each claim arising out of one 
incident and to disapprove a claim presented in any amount under this 
subpart:
    (1) The Judge Advocate General (TJAG);
    (2) The Assistant Judge Advocate General (TAJAG);
    (3) The Commander USARCS;
    (4) The Judge Advocate (JA) or Staff Judge Advocate (SJA) or chief 
of a command claims service; and
    (5) The head of an area claims office (ACO).
    (b) Approval authority. The head of a claims processing office 
(CPO) with approval authority is delegated authority to approve and 
pay, in full or in part, claims presented for $1,000 or less and to 
compromise and pay, regardless of amount claimed, an agreed award of 
$1,000 or less.
    (c) Further guidance. Authority to further delegate payment 
authority is set forth in Sec.  536.3(g)(1) of this part. For further 
discussions also related to approval, settlement and payment authority 
see also paragraphs 2-69 and 2-71 of DA Pam 27-162.


Sec.  536.95  Reconsideration of Non-Scope Claims Act claims.

    The provisions of Sec.  536.89 addressing reconsideration apply and 
are incorporated herein by reference. If the claim is not cognizable 
under the Federal Tort Claims Act, appellate procedures under the 
Military Claims Act or NGCA apply.

Subpart F--Claims Cognizable Under the National Guard Claims Act


Sec.  536.96  Statutory authority for the National Guard Claims Act.

    The statutory authority for this subpart is contained in the Act of 
September 1960 (32 U.S.C. 715, 74 Stat. 878), commonly referred to as 
the ``National Guard Claims Act'' (NGCA), as amended by Public Law 87-
212, (75 Stat. 488), September 1961; Public Law 90-486, (82 Stat. 756), 
August 1968; Public Law 90-521, (82 Stat. 874), September 1968; Public 
Law 90-525, (82 Stat. 877), September 1968; Public Law 91-312, (84 
Stat. 412), July 1970; Public Law 93-336, (88 Stat. 291), July 1974; 
and Public Law 98-564, (98 Stat. 2918), October 1984.


Sec.  536.97  Scope for claims under National Guard Claims Act.

    This subpart applies worldwide and prescribes the substantive bases 
and special procedural regulations for the settlement of claims against 
the United States for death, personal injury, damage to, or loss or 
destruction of property.
    (a) Soldiers of the Army National Guard (ARNG) can perform military 
duty in an active duty status under the authority of Title 10 of the 
United States Code, in a full-time National Guard duty or inactive-duty 
training status under the authority of Title 32 of the United States 
Code, or in a state active duty status under the authority of a state 
code.
    (1) When ARNG soldiers perform active duty, they are under federal 
command and control and are paid from federal funds. For claims 
purposes, those soldiers are treated as active duty soldiers. The NGCA, 
32 U.S.C. 715, does not apply.
    (2) When ARNG soldiers perform full-time National Guard duty or 
inactive-duty training, they are under state command and control and 
are paid from federal funds. The NGCA does apply, but as explained in 
paragraph (c) of this section it is seldom used.
    (3) When ARNG soldiers perform state active duty, they are under 
state command and control and are paid from state funds. Federal claims 
statutes do not apply, but state claims statutes may apply.
    (b) The ARNG also employs civilians, referred to as technicians and 
employed under 32 U.S.C. 709. Technicians are usually, but not always, 
ARNG soldiers who perform the usual 15 days of annual training (a 
category of full-time duty) and 48 drills (inactive-duty training) per 
year.
    (c) NGCA coverage applies only to ARNG soldiers performing full-
time National Guard duty or inactive-duty training and to technicians. 
However, since the NGCA's enactment in 1960, Congress has also extended 
Federal Tort Claims Act (FTCA) coverage to these personnel.
    (1) In 1968, technicians, who were state employees formerly, were 
made federal employees. Along with federal employee status came FTCA 
coverage. Technicians no longer have any state status, albeit they are 
hired, fired, and administered by a state official, the Adjutant 
General, acting as the agent of the federal government.
    (2) In 1981, Congress extended FTCA coverage to ARNG soldiers 
performing full-time National Guard duty or inactive-duty training 
(such as any training or other duty under 32 U.S.C. 316, 502-505). 
Unlike making technicians federal employees, this extension of coverage 
did not affect their underlying status as state military personnel.
    (d) Claims arising from the negligent acts or omissions of ARNG 
soldiers performing full-time National Guard duty or inactive-duty 
training, or of technicians, will be processed under the FTCA. 
Therefore, the NGCA is generally relevant only to claims arising from 
noncombat activities or outside the United States. Additionally, claims 
by members of the National Guard may be paid for property loss or 
damage incident to service if the claim is based on activities falling 
under this subpart and is not payable under AR 27-20, chapter 11.


Sec.  536.98  Claims payable under the National Guard Claims Act.

    The provisions of Sec.  536.75 apply to claims arising under this 
subpart.

[[Page 46291]]

Sec.  536.99  Claims not payable under the National Guard Claims Act.

    The provisions of Sec.  536.76 apply to claims arising under this 
subpart.


Sec.  536.100  Applicable law for claims under the National Guard 
Claims Act.

    The provisions of Sec.  536.77 apply to claims arising under this 
subpart.


Sec.  536.101  Settlement authority for claims under the National Guard 
Claims Act.

    The provisions of Sec.  536.78 apply to claims arising under this 
subpart.


Sec.  536.102  Actions on appeal under the National Guard Claims Act.

    The provisions of Sec.  536.79 apply to claims arising under this 
subpart.

Subpart G--Claims Cognizable Under International Agreements


Sec.  536.103  Statutory authority for claims cognizable under 
international claims agreements.

    The authority for claims presented or processed under this subpart 
is set forth in the following federal laws and bi- or multinational 
agreements:
    (a) 10 U.S.C. 2734a and 10 U.S.C. 2734b (the International 
Agreements Claims Act) as amended, for claims arising overseas under 
international agreements.
    (b) Various international agreements, such as the North Atlantic 
Treaty Organization (NATO) Status of Forces Agreement (SOFA) and the 
Partnership for Peace (PFP) SOFA.


Sec.  536.104  Current agreements in force.

    Current listings of known agreements in force are also posted on 
the USARCS Web site; for the address see Sec.  536.2(a).


Sec.  536.105  Responsibilities generally/international agreements 
claims.

    (a) The Commander USARCS is responsible for:
    (1) Providing policy guidance to command claims services or other 
responsible judge advocate (JA) offices on SOFA or other treaty 
reimbursement programs implementing 10 U.S.C. 2734a and 2734b.
    (2) Monitoring the reimbursement system to ensure that programs for 
the proper verification and certification of reimbursement are in 
place.
    (3) Monitoring funds reimbursed to or by foreign governments.
    (b) Responsibilities in the continental United States (CONUS)--The 
responsibility for implementing these agreements within the United 
States has been delegated to the Secretary of the Army (SA). The SA, in 
turn, has delegated that responsibility to the Commander USARCS, who is 
in charge of the receiving State office for the United States, as 
prescribed in DODD 5515.8. The Commander USARCS is responsible for 
maintaining direct liaison with sending State representatives and 
establishing procedures designed to carry out the provisions of this 
subpart.


Sec.  536.106  Definitions for international agreements claims.

    (a) ``Force and civilian component of force.'' Members of the 
sending State's armed forces on temporary or permanent official duty 
within the receiving State, civilian employees of the sending State's 
armed forces, and those individuals acting in an official capacity for 
the sending State's armed forces. However, under provisions of the 
applicable SOFAs the sending State and the receiving State may agree to 
exclude from the definition of ``force'' certain individuals, units or 
formations that would otherwise be covered by the SOFA. Where such an 
exclusion has been created, this subpart will not apply to claims 
arising from actions or omission by those individuals, units or 
formations. ``Force and civilian component of force'' also includes 
claims arising out of acts or omissions made by military or civilian 
personnel, regardless of nationality, who are assigned or attached to, 
or employed by, an international headquarters established under the 
provisions of the Protocol on the Status of International Military 
Headquarters Set Up Pursuant to the North Atlantic Treaty, dated August 
28, 1952, such as Supreme Allied Command, Atlantic.
    (b) Types of claims under agreements. (1) Intergovernmental claims. 
Claims of one contracting party against any other contracting party for 
damage to property owned by its armed services, or for injury or death 
suffered by a member of the armed services engaged in the performance 
of official duties, are waived. Claims above a minimal amount for 
damage to property owned by a governmental entity other than the armed 
services may be asserted. NATO SOFA, Article VIII, paragraph 1-4; 
Singapore SOFA, Article XVI, paragraph 2-3.
    (2) Third-party scope claims. Claims arising out of any acts or 
omissions of members of a force or the civilian component of a sending 
State done in the performance of official duty or any other act, 
omission, or occurrence for which the sending State is legally 
responsible shall be filed, considered and settled in accordance with 
the laws and regulations of the receiving State with respect to claims 
arising from the activities of its own armed service; see, for example, 
NATO SOFA, Article VIII, paragraph 5.
    (3) Ex gratia claims. Claims arising out of tortious acts or 
omissions not done in the performance of official duties shall be 
considered by the sending State for an ``ex gratia'' payment that is 
made directly to the injured party; see, for example, NATO SOFA, 
Article VIII, paragraph 6.


Sec.  536.107  Scope for international agreements claims arising in the 
United States.

    This section sets forth procedures and responsibilities for the 
investigation, processing, and settlement of claims arising out of any 
acts or omissions of members of a foreign military force or civilian 
component present in the United States or a territory, commonwealth, or 
possession thereof under the provisions of cost sharing reciprocal 
international agreements which contain claims settlement provisions 
applicable to claims arising in the United States. Article VIII of the 
NATO SOFA has reciprocal provisions applying to all NATO member 
countries; the Partnership for Peace (PFP) Agreement has similiar 
provisions, as do the Singapore and Australian SOFAs.


Sec.  536.108  Claims payable under international agreements (for those 
arising in the United States).

    (a) Within the United States, Art. VIII, NATO SOFA applies to 
claims arising within the North Atlantic Treaty Area, which includes 
CONUS and its territories and possessions north of the Tropic of Cancer 
(23.5 degrees north latitude). This excludes Puerto Rico, the Virgin 
Islands, and parts of Hawaii. Third-party scope claims are payable 
under subpart D or, if the claim arises incident to noncombat 
activities, under subpart C of this part. Maritime claims are payable 
under subpart H of this part. The provisions of these subparts on what 
claims are payable apply equally here. The members of the foreign force 
or civilian component must be acting in pursuance of the applicable 
treaty's objectives.
    (b) Within the United States, third-party ex gratia claims are 
payable only by the sending State and are not payable under subpart E 
of this part.


Sec.  536.109  Claims not payable under international agreements (for 
those arising in the United States).

    The following claims are not payable:
    (a) Claims arising from a member of a foreign force or civilian 
component's acts or omissions that do not accord with the objectives of 
a treaty

[[Page 46292]]

authorizing their presence in the United States.
    (b) Claims arising from the acts or omissions of a member of a 
foreign force or civilian component who has been excluded from SOFA 
coverage by agreement between the sending State and the United States.
    (c) Third-party scope claims arising within the United States that 
are not payable under subparts C, D, or H of this part are listed as 
barred under those subparts. As sending State forces are considered 
assimilated into the U.S. Armed Services for purposes of the SOFAs, 
their members are also barred from receiving compensation from the 
United States when they are injured incident to their service, Daberkow 
v. United States, 581 F.2d 785 (9th Cir. 1978).


Sec.  536.110  Notification of incidents arising under international 
agreements (for claims arising in the United States).

    To enable USARCS to properly discharge its claims responsibilities 
under the applicable SOFAs, it must be notified of all incidents, 
including off-duty incidents, in which members of a foreign military 
force or civilian component are involved. Any member or employee of the 
U.S. armed services who learns of an incident involving a member of a 
foreign military force or civilian component resulting in personal 
injury, death, or property damage will immediately notify the judge 
advocate (JA) or legal officer at the installation or activity to which 
such person is assigned or attached. The JA or legal officer receiving 
such notification will in turn notify the Commander USARCS. If the 
member is neither assigned nor attached to any installation or activity 
within the United States, the Commander USARCS, will be notified.


Sec.  536.111  Investigation of claims arising under international 
agreements (for those claims arising in the United States).

    Responsibility for investigating an incident rests upon the area 
claims office (ACO) or claims processing office (CPO) responsible for 
the geographic area in which the incident occurred. The Commander 
USARCS, an ACO, and a CPO are authorized to designate the legal office 
of the installation at which the member of the foreign force or 
civilian component is attached, including the legal office of another 
armed force, to carry out the responsibility to investigate. The 
investigation will comply with the responsible Service's implementing 
claims regulation. When the member is neither assigned nor attached 
within the United States, the Commander USARCS will furnish assistance.


Sec.  536.112  Settlement authority for claims arising under 
international agreements (for those claims arising in the United 
States).

    Settlement authority is delegated to the Commander USARCS, except 
for settlement amounts exceeding the Commander's authority as set forth 
in subparts C, D, or H of this part, or in those cases where settlement 
is reserved to a higher authority. Pursuant to the applicable SOFA, the 
Commander USARCS will report the proposed settlement to the sending 
State office for concurrence or objection. See, for example, NATO SOFA, 
Article VIII.


Sec.  536.113  Assistance to foreign forces for claims arising under 
international agreements (as to claims arising in the United States).

    All claims arising from activities of members of NATO, Partnership 
for Peace, Singaporean, or Australian forces in the United States are 
processed in the same manner as those arising from activities of U.S. 
government personnel. All JAs and legal offices will provide assistance 
similar to that provided to U.S. armed services personnel.


Sec.  536.114  Scope for claims arising overseas under international 
agreements.

    (a) This section sets forth guidance on claims arising from any act 
or omission of soldiers or members of the civilian component of the 
U.S. armed services done in the performance of official duty or arising 
from any other act or omission or occurrence for which the U.S. armed 
services are responsible under an international agreement. Claims 
incidents arising in countries for which the SOFA requires the 
receiving State to adjudicate and pay the claims in accordance with its 
laws and regulations are subject to partial reimbursement by the United 
States.
    (b) Claims by foreign inhabitants based on acts or omissions 
outside the scope of official duties are cognizable under subpart J of 
this part. Claims arising from nonscope acts or omissions by third 
parties who are not foreign inhabitants are cognizable under subpart E 
but not under subparts C or F of this part.


Sec.  536.115  Claims procedures for claims arising overseas under 
international agreements.

    (a) SOFA provisions that call for the receiving State to adjudicate 
claims have been held to be the exclusive remedy for claims against the 
United States, Aaskov v. Aldridge, 695 F. Supp. 595 (D.D.C. 1988); 
Dancy v. Department of Army, 897 F. Supp. 612 (D.D.C. 1995).
    (b) SOFA provisions that call for the receiving State to adjudicate 
claims against the United States usually refer to claims by third 
parties brought against members of the force or civilian component. 
This includes claims by tourists or business travelers as well as 
inhabitants of foreign countries. Depending on how the receiving State 
interprets the particular SOFA's class of proper claimants, the 
receiving State may also consider claims by U.S. soldiers, civilian 
employees, and their family members. Chiefs of command claims services 
or other Army JA offices responsible for claims that arise in countries 
bound by SOFA or other treaty provisions requiring a receiving State to 
consider claims against the United States will ensure that all claims 
personnel know the receiving State's policy on which persons or classes 
of persons are proper claimants under such provisions. When a claim is 
filed both with the receiving State and under either the Military 
Claims Act (MCA) or Foreign Claims Act (FCA), the provisions of Sec.  
536.76(h) of this part and DA Pam 27-162, paragraph 3-4a apply.
    (c) When SOFA provisions provide for receiving State claims 
consideration, the time limit for filing such claims may be much 
shorter than the two years otherwise allowed under the FCA or MCA. For 
example, receiving State claims offices in Germany require that a claim 
be filed under the SOFA within three months of the date that the 
claimant is aware of the U.S. involvement. If the filing period is 
about to expire for claims arising in Germany, have the claimant fill 
out a claim form, make two copies, and date-stamp each copy as received 
by a sending State claims office. Return the date-stamped original of 
the claim to the claimant with instructions to promptly file with the 
receiving State claims office. Keep one date-stamped copy as a 
potential claim. Forward one date-stamped copy of the claim to the U.S. 
Army Claims Service Europe (USACSEUR). This may toll the applicable 
German statute of limitations. Additionally, many receiving State 
claims offices do not require claimants to demand a sum certain. All 
claims personnel must familiarize themselves with the applicable 
receiving State law and procedures governing SOFA claims.
    (d) All foreign inhabitants who file claims against the United 
States that fall within the receiving State's responsibility, such as 
claims based on acts or omissions within the scope of U.S. Armed Forces 
members' or civilian employees' duties, must file the claim

[[Page 46293]]

with the appropriate receiving State office. Those U.S. inhabitants 
whose claims would be otherwise cognizable under the Military Claims 
Act (subpart C of this part) and whom the receiving State deems proper 
claimants under the SOFA must also file with the receiving State.
    (e) A claim filed with, and considered by, a receiving State under 
a SOFA or other international agreement claims provision may be 
considered under other subparts of this part only if the receiving 
State denied the claim on the basis that it was not cognizable under 
the treaty or agreement provisions. See DA Pam 27-162, paragraph 3-
4a(2), for conditions of waiver of the foregoing requirement. See also 
Sec. Sec.  536.76(h) and 536.138(j) of this part. When a claimant has 
filed a claim with a receiving State and received payment, or the claim 
has been denied on the merits, such action will be the claimant's final 
and exclusive remedy and will bar any further claims against the United 
States.


Sec.  536.116  Responsibilities as to claims arising overseas under 
international agreements.

    (a) Command claims services or other responsible JA offices within 
whose jurisdiction SOFA or other treaty provisions provide for a claim 
reimbursement system, and where DA has been assigned single-service 
responsibility for the foreign country seeking reimbursement (see Sec.  
536.17) are responsible for:
    (1) Establishing programs for verifying, certifying, and 
reimbursing claims payments. Such service or JA office will provide a 
copy of its procedures implementing the program to the Commander 
USARCS.
    (2) Providing the Commander USARCS with budget estimates for 
reimbursements in addition to the reports required by AR 27-20, 
paragraph 13-7.
    (3) Providing the Commander USARCS each month in which payments are 
made, with statistical information on the number of individual claims 
reimbursed, the total amount paid by the foreign government, and the 
total amount reimbursed by the United States.
    (4) Providing the Commander USARCS with a quarterly report showing 
total reimbursements paid during the quarter for maneuver damage and 
tort claims classified according to major categories of damage 
determined by the Commander USARCS, and an update on major issues or 
activities that could affect the reimbursement system's operation or 
funding.
    (b) Command claims services or other responsible Army JA offices 
will ensure that all claims personnel within their areas of 
responsibility:
    (1) Receive annual training on the receiving State's claims 
procedures, including applicable time limitations, procedures and the 
responsible receiving State claims offices' locations.
    (2) Screen all new claims and inquiries about claims to identify 
those claimants who must file with the receiving State.
    (3) Ensure that all such claimants are informed of this requirement 
and the applicable time limitation.
    (4) Ensure that all applicable SOFA claims based on incidents 
occurring in circumstances that bring them within the United States' 
primary sending State jurisdiction are fully investigated.

Subpart H--Maritime Claims


Sec.  536.117  Statutory authority for maritime claims.

    The Army Maritime Claims Settlement Act (AMCSA) (10 U.S.C. 4801-04, 
4806, as amended) authorizes the Secretary of the Army or his designee 
to administratively settle or compromise admiralty and maritime claims 
in favor of, and against, the United States.


Sec.  536.118  Related statutes for maritime claims.

    (a) The AMCSA permits the settlement of claims that would 
ordinarily fall under the Suits in Admiralty Act (SIAA), 46 U.S.C. app. 
741-752; the Public Vessels Act (PVA), 46 U.S.C. app. 781-790; or the 
Admiralty Extension Act (AEA), 46 U.S.C. app. 740. Outside the United 
States the AMCSA may be used to settle admiralty claims in lieu of the 
Military Claims Act or Foreign Claims Act. Within the United States, 
filing under the AMCSA is not mandatory for causes of action as it is 
for the SIAA or PVA.
    (b) Similar maritime claims settlement authority is exercised by 
the Department of the Navy under 10 U.S.C. 7363 and 7621-23 and by the 
Department of the Air Force under 10 U.S.C. 9801-9804 and 9806.


Sec.  536.119  Scope for maritime claims.

    The AMCSA applies worldwide and includes claims that arise on high 
seas or within the territorial waters of a foreign country. At 10 
U.S.C. 4802 it provides for the settlement or compromise of claims for:
    (a) Damage caused by a vessel of, or in the service of, the 
Department of Army (DA) or by other property under the jurisdiction of 
the DA.
    (b) Compensation for towage and salvage service, including contract 
salvage, rendered to a vessel of, or in the service of, the DA or other 
property under the jurisdiction of the DA.
    (c) Damage that is maritime in nature and caused by tortious 
conduct of U.S. military personnel or federal civilian employees, an 
agent thereof, or property under the Army's jurisdiction.


Sec.  536.120  Claims payable as maritime claims.

    A claim is cognizable under this subpart if it arises in or on a 
maritime location, involves some traditional maritime nexus or 
activity, and is caused by the wrongful act or omission of a member of 
the U.S. Army, Department of Defense (DOD) or DA civilian employee, or 
an agent thereof, while acting within the scope of employment. This 
class of claims includes, but is not limited to:
    (a) Damage to a ship, boat, barge, or other watercraft;
    (b) An injury that involves a ship, boat, barge, or other 
watercraft;
    (c) Damage to a wharf, pier, jetty, fishing net, farm facilities or 
other structures in, on, or adjacent to any body of water;
    (d) Damage or injury on land or on water arising under the AEA and 
allegedly due to operation of an Army-owned or leased ship, boat, 
barge, or other watercraft;
    (e) An injury that occurs on board an Army ship, boat, barge or 
other watercraft; and
    (f) Crash into water of an Army aircraft.


Sec.  536.121  Claims not payable as maritime claims.

    Under this subpart, claims are not payable if they:
    (a) Are listed in Sec. Sec.  536.42, 536.43, 536.44, 536.45 (except 
at (e) and (k)), and 536.46;
    (b) Are not maritime in nature;
    (c) Are not in the best interests of the United States, are 
contrary to public policy, or are otherwise contrary to the basic 
intent of the governing statute, for example, claims for property loss 
or damage or personal injury or death by inhabitants of unfriendly 
foreign countries or by individuals considered to be unfriendly to the 
United States. When a claim is considered not payable for the reasons 
stated in this section, it will be forwarded for appropriate action to 
the Commander USARCS, along with the recommendations of the responsible 
claims office.
    (d) Are presented by a national, or a corporation controlled by a 
national, of a country at war or engaged in armed

[[Page 46294]]

conflict with the United States, or any country allied with such enemy 
country, unless the appropriate settlement authority determines that 
the claimant is and, at the time of incident, was friendly to the 
United States. A prisoner of war or an interned enemy alien is not 
excluded or barred from bringing a claim for damage, loss, or 
destruction of personal property while held in the custody of the 
government if the claim is otherwise payable.
    (e) Are for damages or injuries that a receiving State should pay 
for under an international agreement. See Sec.  536.34(c).


Sec.  536.122  Limitation of settlement of maritime claims.

    (a) Within the United States the period of completing an 
administrative settlement under the AMCSA is subject to the same time 
limitation as that for beginning suit under the SIAA or PVA; that is, a 
two-year period from the date the cause of the action accrued. The 
claimant must have agreed to accept the settlement and it must be 
approved for payment by the Secretary of the Army or other approval 
authority prior to the end of such period. The presentation of a claim, 
or its consideration by the DA, neither waives nor extends the two-year 
limitation period and the claimant should be so informed, in writing, 
when the claim is acknowledged. See Sec.  536.28.
    (b) For causes of action under the AEA, filing an administrative 
claim is mandatory. However, suit is required under the two-year time 
limit applicable to the SIAA and PVA, even though the AEA provides that 
no suit shall be filed under six months after filing a claim.
    (c) For causes of action arising outside the United States, there 
is no time limitation for completing an administrative settlement.


Sec.  536.123  Limitation of liability for maritime claims.

    For admiralty claims arising within the United States under the 
provisions of the Limitation of Shipowners' Liability Act, 46 U.S.C. 
app. 181-188, in cases alleging injury or loss due to negligent 
operation of its vessel, the United States may limit its liability to 
the value of its vessel after the incident from which the claim arose. 
The act requires filing of an action in federal District Court within 
six months of receiving written notice of a claim. Therefore, USARCS, 
or the Chief Counsel, U.S. Army Corps of Engineers (COE), or his 
designee, must be notified within 10 working days of the receipt of any 
maritime claim arising in the United States or on the high seas out of 
the operation of an Army vessel, including pleasure craft owned by the 
United States. USARCS or Chief Counsel, COE will coordinate with the 
Department of Justice (DOJ) as to whether to file a limitation of 
liability action.


Sec.  536.124  Settlement authority for maritime claims.

    (a) The Secretary of the Army, the Army General Counsel as designee 
of the Secretary, or other designee of the Secretary may approve any 
settlement or compromise of a claim in any amount. A claim settled or 
compromised in a net amount exceeding $500,000 will be investigated and 
processed and, if approved by the Secretary of the Army or his or her 
designee, will be certified to Congress for final approval.
    (b) The Judge Advocate General (TJAG), The Assistant Judge Advocate 
General (TAJAG), the Commander USARCS, the Chief Counsel COE, or 
Division or District Counsel Offices are delegated authority to settle, 
such as to deny or approve payment in full or in part, any claim under 
this subpart regardless of the amount claimed, provided that any award 
does not exceed $100,000.
    (c) A Staff Judge Advocate (SJA) or chief of a command claims 
service and heads of area claims offices (ACOs) are delegated authority 
to pay up to $50,000, regardless of the amount claimed, and to 
disapprove or make a final offer on a claim presented in an amount not 
exceeding $50,000.
    (d) Authority to further delegate payment authority is set forth in 
Sec.  536.3(g)(1) of this part. For further discussion also related to 
settlement and approval authority see paragraph 2-69 of DA Pam 27-162.
    (e) Where the claimed amount or potential claim damage exceeds 
$100,000 for COE claims or $50,000 for all others, Commander USARCS 
will be notified immediately, and be furnished a copy of the claim and 
a mirror file thereafter. See Sec.  536.30 and AR 27-20, paragraph 2-
12.

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


Sec.  536.125  Statutory authority for Uniform Code of Military Justice 
(UCMJ) Claims.

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


Sec.  536.126  Purpose of UCMJ claims.

    This subpart sets forth the standards to apply and the procedures 
to follow in processing claims for the wrongful taking or willful 
damage or destruction of property by military members of the Department 
of the Army.


Sec.  536.127  Proper claimants; unknown accused--under the UCMJ.

    (a) A proper claimant under this subpart includes any individual 
(whether civilian or military), a business, charity, or state or local 
government that owns, has an ownership interest in, or lawfully 
possesses property.
    (b) When cognizable claims are presented against a unit because the 
individual offenders cannot be identified, this subpart sets forth the 
procedures for approval authorities to direct pay assessments, 
equivalent to the amount of damages sustained, against the unit members 
who were present at the scene and to allocate individual liability in 
such proportion as is just under the circumstances.


Sec.  536.128  Effect of disciplinary action, voluntary restitution, or 
contributory negligence for claims under the UCMJ.

    (a) Disciplinary action. Administrative action under Article 139, 
UCMJ, and this subpart is entirely separate and distinct from 
disciplinary action taken under other sections of the UCMJ or other 
administrative actions. Because action under both Article 139, UCMJ, 
and this subpart requires independent findings on issues other than 
guilt or innocence, a soldier's conviction or acquittal of claim-
related charges is not dispositive of liability under Article 139, 
UCMJ.
    (b) Voluntary restitution. The approval authority may terminate 
Article 139 proceedings without findings if the soldier voluntarily 
makes full restitution to the claimant.
    (c) Contributory negligence. A claim otherwise cognizable and 
meritorious is payable whether or not the claimant was negligent.


Sec.  536.129  Claims cognizable as UCMJ claims.

    Claims cognizable under Article 139, UCMJ, are limited to the 
following:
    (a) Requirement that conduct constructively violate UCMJ. In order 
to subject a person to liability under Article 139, the soldier's 
conduct must be such as would constitute a violation of one or more 
punitive Articles of the UCMJ. However, a referral of charges is not a 
prerequisite to action under this subpart.
    (b) Claims for property willfully damaged. Willful damage is damage

[[Page 46295]]

inflicted intentionally, knowingly, and purposefully without 
justifiable excuse, as distinguished from damage caused inadvertently, 
thoughtlessly or negligently. Damage, loss, or destruction of property 
caused by riotous, violent, or disorderly acts or acts of depredation, 
or through conduct showing reckless or wanton disregard of the property 
rights of others, may be considered willful damage.
    (c) Claims for property wrongfully taken. A wrongful taking is any 
unauthorized taking or withholding of property, with the intent to 
deprive, temporarily or permanently, the owner or person lawfully in 
possession of the property. Damage, loss, or destruction of property 
through larceny, forgery, embezzlement, fraud, misappropriation, or 
similar offense may be considered wrongful taking. However, mere breach 
of a fiduciary or contractual duty that does not involve larceny, 
forgery, embezzlement, fraud, or misappropriation does not constitute 
wrongful taking.
    (d) Definition of property. Article 139 provides compensation for 
loss of or damage to both personal property, whether tangible or 
intangible, and real property. Contrast this to the Personnel Claims 
Act and chapter 11 of AR 27-20, which provides compensation only for 
tangible personal property. Monetary losses may fall into the category 
of either tangible property (for example, cash), or intangible property 
(for example, an obligation incurred by a claimant to a third party as 
a result of fraudulent conduct by a soldier), although recovery for 
losses of intangible property may be limited by other provisions of 
this part, such as the exclusion of theft of services (see Sec.  
536.130(f)) or consequential damages (see Sec.  536.130(g)).
    (e) Claims cognizable under more than one statute. Claims 
cognizable under other claims statutes may be processed under this 
subpart.


Sec.  536.130  Claims not cognizable as UCMJ claims.

    Claims not cognizable under Article 139, UCMJ, and this subpart, 
include the following:
    (a) Claims resulting from negligent acts.
    (b) Claims for personal injury or death.
    (c) Claims resulting from acts or omissions of military personnel 
acting within the scope of their employment, including claims resulting 
from combat activities or noncombat activities, as those terms are 
defined in the Glossary of AR 27-20.
    (d) Claims resulting from the conduct of Reserve component 
personnel who are not subject to the UCMJ at the time of the offense.
    (e) Subrogated claims.
    (f) Claims for theft of services, even if such theft constitutes a 
violation of Article 134 of the UCMJ.
    (g) Claims for indirect, remote, or consequential damages.
    (h) Claims by entities in conflict with the United States or whose 
interests are hostile to the United States.


Sec.  536.131  Limitations on assessments arising from UCMJ claims.

    (a) Limitations on amount. (1) A special court-martial convening 
authority (SPCMCA) has authority to approve a pay assessment in an 
amount not to exceed $5,000 per claimant per incident and to deny a 
claim in any amount. If the Judge Advocate responsible for advising the 
SPCMCA decides that the SPCMCA's final action under the provisions of 
Rule for Courts-Martial 1107 in a court martial arising out of the same 
incident would be compromised, the SPCMCA may forward the Article 139 
claim to the general court-martial convening authority (GCMCA) for 
action.
    (2) A GCMCA, or designee, has authority to approve a pay assessment 
in an amount not to exceed $10,000 per claimant per incident and to 
deny a claim in any amount.
    (i) If the GCMCA or designee determines that a claim exceeding 
$10,000 per claimant per incident is meritorious, that officer will 
assess the soldier's pay in the amount of $10,000 and forward the claim 
to the Commander USARCS, with a recommendation to increase the 
assessment.
    (ii) If the head of the area claims office (ACO) (usually the 
GCMCA's Staff Judge Advocate (SJA)) decides that the GCMCA's final 
action under the provisions of Rule for Courts-Martial 1107 in a court-
martial arising out of the same incident would be compromised, that 
officer may forward the Article 139 claim to USARCS for action.
    (3) Only TJAG, TAJAG, the Commander USARCS, or designee has 
authority to approve assessments in excess of $10,000 per claimant per 
incident.
    (b) Limitations on type of damages. Property loss or damage 
assessments are limited to direct damages. This subpart does not 
provide redress for indirect, remote, or consequential damages.


Sec.  536.132  Procedure for processing UCMJ claims.

    (a) Time limitations on submission of a claim. A claim must be 
submitted within 90 days of the incident that gave rise to it, unless 
the SPCMCA acting on the claim determines there is good cause for 
delay. Lack of knowledge of the existence of Article 139, or lack of 
knowledge of the identity of the offender, are examples of good cause 
for delay.
    (b) Form and presentment of a claim. The claimant or authorized 
agent may present a claim orally or in writing. If presented orally, 
the claim must be reduced to writing, signed, and seek a definite sum 
in U.S. dollars within 10 days after oral presentment.
    (c) Action upon receipt of a claim. Any officer receiving a claim 
will forward it within two working days to the SPCMCA exercising 
jurisdiction over the soldier or soldiers against whom the claim is 
made. If the claim is made against soldiers under the jurisdiction of 
two or more convening SPCMCAs who are under the same GCMCA, forward the 
claim to that GCMCA. That GCMCA will designate one SPCMCA to 
investigate and act on the claim as to all soldiers involved. If the 
claim is made against soldiers under the jurisdiction of more than one 
SPCMCA at different locations and not under the same GCMCA, forward the 
claim to the SPCMCA whose headquarters is located nearest the situs of 
the alleged incident. That SPCMCA will investigate and act on the claim 
as to all soldiers involved. If a claim is brought against a member of 
one of the other military services, forward the claim to the commander 
of the nearest major command of that service equivalent to a major Army 
command (MACOM).
    (d) Action by the special court-martial convening authority. (1) If 
the claim appears to be cognizable, the SPCMCA will appoint an 
investigating officer within four working days of receipt of a claim. 
The investigating officer will follow the procedures of this subpart 
supplemented by DA Pam 27-162, chapter 9, and AR 15-6, chapter 4, which 
applies to informal investigations. The SPCMCA may appoint the claims 
officer of a command (if the claims officer is a commissioned officer) 
as the investigating officer. In cases where the special court-martial 
convening authority is an inactive duty soldier of the United States 
Army Reserve, the appointment of an investigating officer will be made 
within 30 calendar days.
    (2) If the claim is not brought against a person who is a member of 
the Armed Forces of the United States at the time the claim is 
received, or if the claim does not appear otherwise cognizable under 
Article 139, UCMJ, the SPCMCA

[[Page 46296]]

may refer it for legal review (see paragraph (g) of this section) 
within four working days of receipt. If after legal review the SPCMCA 
determines that the claim is not cognizable, final action may be taken 
disapproving the claim (see paragraph (h) of this section) without 
appointing an investigating officer. In claims where the special court-
martial convening authority is an inactive duty soldier of the United 
States Army Reserve, the request for a legal review will be made within 
30 calendar days.
    (e) Expediting payment through Personnel Claims Act and Foreign 
Claims Act procedures. When assessment action on a particular claim 
will be unduly delayed, the claims office supporting the SPCMA may 
consider the claim under the Personnel Claims Act, 31 U.S.C. 3721, and 
chapter 11 of AR 27-20, or under the Foreign Claims Act, 10 U.S.C. 
2734, and subpart J of this part, as long as it is otherwise cognizable 
under that authority. If the Article 139 claim is later successful, the 
claims office will inform the claimant of the obligation to repay to 
the government any overpayment received under these statutes.
    (f) Action by the investigating officer. The investigating officer 
will notify the soldier against whom the claim is made.
    (1) If the soldier wishes to make voluntary restitution, the 
investigating officer may, with the SPCMCA's concurrence, delay 
proceedings until the end of the next pay period to permit restitution. 
If the soldier makes payment to the claimant's full satisfaction, the 
SPCMCA will dismiss the claim.
    (2) In the absence of full restitution, the investigating officer 
will determine whether the claim is cognizable and meritorious under 
the provisions of Article 139, UCMJ, and this subpart, and the amount 
to be assessed against each offender. This amount will be reduced by 
any restitution the claimant accepts from an offender in partial 
satisfaction. Within 10 working days, or such time as the SPCMCA may 
determine, the investigating officer will submit written findings and 
recommendations to the SPCMCA.
    (3) If the soldier is absent without leave and cannot be notified, 
a claims office may process the Article 139 claim in the soldier's 
absence. If an assessment is approved, forward a copy of the claim and 
the memorandum authorizing pay assessment by transmittal letter to the 
servicing Defense Accounting Office (DAO) for offset against the 
soldier's pay. If the soldier is dropped from the rolls, the servicing 
DAO will forward the assessment documents to: Commander, Defense 
Finance and Accounting Service (DFAS), ATTN: Military Pay Operations, 
8899 E. 56th Street, Indianapolis, IN 46249.
    (g) Legal review. The SPCMCA will refer the claim for legal review 
to its servicing legal office upon either completion of the 
investigating officer's report or the SPCMCA's determination that the 
claim is not cognizable (see paragraph (d)(2) of this section).
    (1) Within five working days or such time as the SPCMCA determines, 
that office will furnish a written opinion as to:
    (i) Whether the claim is cognizable under the provisions of Article 
139, UCMJ, and this subpart.
    (ii) Whether the findings and recommendations are supported by a 
preponderance of the evidence.
    (iii) Whether the investigation substantially complies with the 
procedural requirements of Article 139, UCMJ; this subpart; DA Pam 27-
162, chapter 9; and AR 15-6, chapter 4.
    (iv) Whether the claim is clearly not cognizable (see paragraph 
(d)(2) of this section) and final denial action can be taken without 
appointing an investigating officer.
    (2) If the investigating officer's recommended assessment does not 
exceed $5,000, the claims judge advocate (CJA) or claims attorney will, 
upon legal review, forward the claim to the SPCMCA for final action.
    (3) If the investigating officer's recommended assessment is more 
than $5,000, the CJA or claims attorney will, upon legal review, 
forward the claim file to the head of the ACO, who will also conduct a 
legal review within five working days.
    (i) If the recommended assessment does not exceed $10,000, the head 
of the ACO will forward the claim file to the GCMCA for final action.
    (ii) If the recommended assessment exceeds $10,000, the head of the 
ACO will forward the claim file to the GCMCA for approval of an 
assessment up to $10,000 and for a recommendation of an additional 
assessment. The head of the ACO will then forward the claims file and 
the GCMCA's recommendation to the Commander USARCS for approval.
    (h) Final action. After consulting with the legal advisor, the 
approval authority will disapprove or approve the claim in an amount 
equal to, or less than, the amount of the assessment limitation. The 
approval authority is not bound by the findings or recommendations of 
the investigating officer; AR 15-6, paragraph 2-3a. The approval 
authority will notify the claimant, and any soldier subject to that 
officer's jurisdiction, of the determination and the right of any party 
to request reconsideration (see Sec.  536.133). A copy of the 
investigating officer's findings and recommendation will be enclosed 
with the notice. The approval authority will then suspend action on the 
claim for 10 working days pending receipt of a request for 
reconsideration, unless the approval authority determines that this 
delay will result in substantial injustice. If after this period the 
approval authority determines that an assessment is still warranted, 
the approval authority will direct the appropriate DAO to withhold such 
amount from the soldier's pay account (see Sec.  536.131(a)). For any 
soldier not subject to the approval authority's jurisdiction, the 
approval authority will forward the claim to the commander who 
exercises SPCMCA jurisdiction over the soldier for assessment. The 
receiving SPCMCA is bound by the determination of the approval 
authority.
    (i) Assessment. Subject to any limitations set forth in appropriate 
regulations, the servicing DAO will withhold the amount directed by the 
approval authority and pay it to the claimant. The assessment is not 
subject to appeal and is binding on any finance officer. If the 
servicing DAO cannot withhold the required amount because it does not 
have custody of the soldier's pay record, the record is missing, or the 
soldier is in a no pay due status, that office will promptly notify the 
approval authority of this fact in writing.
    (j) Remission of indebtedness. 10 U.S.C. 4837, which authorizes the 
remission and cancellation of indebtedness of an enlisted person to the 
United States or its instrumentalities, is not applicable and may not 
be used to remit and cancel indebtedness determined as a result of 
action under Article 139, UCMJ.


Sec.  536.133  Reconsideration of UCMJ claims.

    (a) General. Although Article 139, UCMJ, does not provide for a 
right of appeal, either the claimant or a soldier whose pay is assessed 
may request the approval authority (SPCMCA or GCMCA, depending on the 
amount assessed) or successor in command to reconsider the action. 
Either party must submit such a request for reconsideration in writing 
and clearly state the factual or legal basis for the relief requested. 
The approval authority may direct that the matter be reinvestigated.
    (b) Reconsideration by the original approval authority. The 
original approval authority may reconsider the action at any time while 
serving as the approval authority for the claim in

[[Page 46297]]

question, even after the transfer of the soldier whose pay was 
assessed. The original approval authority may modify the action if it 
was incorrect, subject to paragraph (d) of this section. However, the 
approval authority should modify the action only because of fraud, 
substantial new evidence, errors in calculation, or mistake of law.
    (c) Reconsideration by a successor in command. Subject to paragraph 
(d) of this section, a successor in command may modify an action only 
because of fraud, substantial new evidence, errors in calculation, or 
mistake of law apparent on the face of the record.
    (d) Legal review and action. Prior to modifying the original 
action, the approval authority will have the servicing claims office 
render a legal opinion and fully explain the basis for modification as 
part of the file. If the legal review agrees that a return of the 
assessed pay is appropriate, the approval authority should request in 
writing that the claimant return the money, setting forth in the letter 
the basis for the request. There is no authority for repayment from 
appropriated funds.
    (e) Disposition of files. After completing action on 
reconsideration, the approval authority will forward the 
reconsideration action to the servicing claims office, which will then 
file the action per Sec.  536.132(h).


Sec.  536.134  Additional claims judge advocate and claims attorney 
responsibilities (for UCMJ claims).

    In addition to the duties set forth in this subpart, the CJA or 
claims attorney is responsible for forwarding copies of completed 
Article 139 actions to USARCS, maintaining a log, monitoring the time 
requirements of pending Article 139 actions, and publicizing the 
Article 139 program to commanders, soldiers, and the community.

Subpart J--Claims Cognizable Under the Foreign Claims Act


Sec.  536.135  Statutory authority for the Foreign Claims Act.

    (a) The statutory authority for this subpart is the Act of August 
10, 1956, 10 U.S.C. 2734 (70 Stat. 154), commonly referred to as the 
Foreign Claims Act (FCA), as amended by Public Law 86-223, September 
1959 (73 Stat. 453); Public Law 86-411, April 1960 (74 Stat. 16); 
Public Law 90-521, September 1968 (82 Stat. 874); Public Law 91-312, 
July 1970 (84 Stat. 412); Public Law 93-336, July 1974 (88 Stat. 292); 
Public Law 96-513, Title V, section 511 (95), December 1980 (94 Stat. 
2928). It is posted on the USARCS Web site; for the address see Sec.  
536.2(a).
    (b) Claims arising from the acts or omissions of the U.S. Armed 
Forces in the Marshall Islands or the Federated States of Micronesia 
are settled in accordance with Art. XV, Non-contractual Claims, of the 
U.S.-Marshall Islands and Micronesian Status of Forces Agreement (the 
``SOFA'') (posted on the USARCS Web site; for the address see Sec.  
536.2(a)). This is pursuant to the ``agreed upon minutes'' that are 
appended to the SOFA, pursuant to Section 323 of the Compact of Free 
Association between the U.S. and the Marshall Islands and the Federated 
States of Micronesia, enacted by Public Law 99-239, January 14, 1986. 
(The Compact may be viewed at http://www.fm/jcn/compact/relindex.html). 
The ``agreed upon minutes'' state that ``all claims within the scope of 
paragraph 1 of Article XV [Claims], [of the Compact] * * * shall be 
processed and settled exclusively pursuant to the Foreign Claims Act, 
10 U.S.C. 2734, and any regulations promulgated in implementation 
thereof.'' Therefore, Title I, Article 178 of the Compact, regarding 
claims processing, is not applicable to claims arising from the acts or 
omissions of the U.S. armed forces, but only to other federal agencies. 
Those agencies are required to follow the provisions of the Federal 
Tort Claims Act, 28 U.S.C. 2672.


Sec.  536.136  Scope for claims arising under the Foreign Claims Act.

    (a) Application. This subpart, which is applicable outside the 
United States, its commonwealths, territories and possessions, 
including areas under the jurisdiction of the United States, implements 
the FCA and prescribes the substantive basis and special procedural 
requirements for settlement of claims of inhabitants of a foreign 
country, or of a foreign country or a political subdivision thereof, 
against the United States for personal injury, death, or property 
damage caused by service members or civilian employees, or claims that 
arise incident to noncombat activities of the armed forces.
    (b) Effect of Military Claims Act (MCA). Claims arising in foreign 
countries will be settled under the MCA if the injured party is an 
inhabitant of the U.S., for example, a member of the U.S. armed forces, 
a U.S. civilian employee, or a family member of either category. In a 
wrongful death case, if the decedent is an inhabitant of a foreign 
country, even though his survivors are U.S. inhabitants, the FCA will 
apply. See Sec.  536.74(c).
    (c) Effect of Army Maritime Claims Settlement Act (AMCSA) (10 
U.S.C. 4801, 4802 and 4808). A maritime claim may be settled under the 
FCA.


Sec.  536.137  Claims payable under the Foreign Claims Act.

    (a) A claim for death, personal injury, or loss of or damage to 
property may be allowed under this subpart if the alleged damage 
results from noncombat activity or a negligent or wrongful act or 
omission of soldiers or civilian employees of the U.S. armed forces, as 
enumerated in Sec.  536.23(b), regardless of whether the act or 
omission was made within the scope of their employment. This includes 
non-U.S. citizen employees recruited elsewhere but employed in a 
country of which they are not a citizen. However, a claim generated by 
non-U.S. citizen employees in the country in which they were recruited 
and are employed will be payable only if the act or omission was made 
in the scope of employment. But claims arising from the operation of 
U.S. armed forces vehicles or other equipment by such employees may be 
paid, even though the employees are not acting within the scope of 
their employment, provided the employer or owner of the vehicle or 
other equipment would be liable under local law in the circumstances 
involved.
    (b) Claims generated by officers or civilian employees of the 
American Battle Monuments Commission (36 U.S.C. 2110), acting within 
the scope of employment, will be paid from American Battle Monuments 
Commission appropriations.
    (c) Claims for the loss of, or damage to, property that may be 
settled under this subpart include the following:
    (1) Real property used and occupied under lease, express, implied, 
or otherwise. See Sec.  536.34(m) of this part and paragraph 2-15m of 
DA Pam 27-162.
    (2) Personal property bailed to the government under an agreement, 
express or implied, unless the owner has expressly assumed the risk of 
damage or loss.


Sec.  536.138  Claims not payable under the Foreign Claims Act

    A claim is not payable if it:
    (a) Results wholly from the negligent or wrongful act of the 
claimant or agent;
    (b) Is purely contractual in nature;
    (c) Arises from private or domestic obligations as distinguished 
from government transactions;
    (d) Is based solely on compassionate grounds;
    (e) Is a bastardy claim for child support expenses;
    (f) Is for any item whose acquisition, possession, or 
transportation is in

[[Page 46298]]

violation of Department of the Army (DA) or Department of Defense (DOD) 
directives, such as illegal war trophies.
    (g) Is for rent, damage, or other payments involving the 
acquisition, use, possession, or disposition of real property or 
interests therein by and for the DA. See Sec.  536.34(m) of this part 
and paragraph 2-15m of DA Pam 27-162.
    (h) Is not in the best interest of the United States, is contrary 
to public policy, or otherwise contrary to the basic intent of the 
governing statute (10 U.S.C. Sec.  2734); for example, claims for 
property loss or damage, or personal injury or death caused by 
inhabitants of unfriendly foreign countries or by individuals 
considered to be unfriendly to the United States.
    (i) Is presented by a national, or a corporation controlled by a 
national, of a country at war or engaged in armed conflict with the 
United States, or any country allied with such enemy country unless the 
appropriate settlement authority determines that the claimant is, and 
at the time of the incident was friendly to the United States. A 
prisoner of war or an interned enemy alien is not excluded from filing 
a claim for damage, loss, or destruction of personal property within 
the federal government's custody if the claim is otherwise payable.
    (j) Is for damages or injury, the claim for which a receiving State 
should adjudicate and pay pursuant to an international agreement, 
subject to waiver by the Commander USARCS. See DA Pam 27-162, paragraph 
3-4a(2), for a discussion of the conditions of waiver.
    (k) Is listed in Sec. Sec.  536.45 and 536.46, except for the 
exclusions listed in Sec. Sec.  536.45(e), (h) and (k). Additionally, 
the exclusions set forth in Sec. Sec.  536.45(a) and (b) do not apply 
to a claim arising incident to noncombat activities.
    (l) Is brought by a subrogee.
    (m) Is covered by insurance on the involved U.S. Armed Forces' 
vehicle or the tortfeasor's privately owned vehicle (POV), in 
accordance with requirements of a foreign country, unless the claim 
exceeds the coverage or the insurer is insolvent. See Sec.  536.139(c).
    (n) Is payable under subpart C of this part or AR 27-20, chapter 
11.
    (o) Is brought by or on behalf of a member of a foreign military 
force for personal injury or death arising incident to service, or 
pursuant to combined military operations. Combined military operations 
include exercises and United Nations and North Atlantic Treaty 
Organization (NATO) peacekeeping and humanitarian missions. Derivative 
claims arising from these incidents are also excluded.


Sec.  536.139  Applicable law for claims under the Foreign Claims Act.

    (a) Venue of incident and domicile of claimant. In determining an 
appropriate award, apply the law and custom of the country in which the 
incident occurred to determine which elements of damages are payable 
and which individuals are entitled to compensation. However, where the 
claimant is an inhabitant of another foreign country and only 
temporarily within the country in which the incident occurred, the 
quantum of certain elements of damages, such as lost wages and future 
medical care, may be calculated based on the law and economic 
conditions in the country of the claimant's permanent residence. Where 
the decedent is the subject of a wrongful death case, the quantum will 
be determined based on the country of the decedent's permanent 
residence regardless of the fact that his survivors live in the U.S. or 
a different foreign country than the decedent. See Sec.  536.77 for 
further damages guidance.
    (b) Other guidance. The guidance set forth in Sec. Sec.  536.77(b) 
through (d) as to allowable elements of damages is generally 
applicable. Where moral damages, as defined in DA Pam 27-162, paragraph 
2-53c(4), are permitted, such damages are payable. In some countries it 
is customary to get a professional appraisal to substantiate certain 
claims and pass this cost on to the tortfeasor. The Commander USARCS or 
the chief of a command claims service may, as an exception to policy, 
permit the reimbursement of such costs in appropriate cases. Where 
feasible, claimants should be discouraged from incurring such costs.
    (c) Deductions for insurance. (1) Insurance coverage recovered or 
recoverable will be deducted from any award. In that regard, every 
effort will be made to monitor the insurance aspect of the case and 
encourage direct settlement between the claimant and the insurer of the 
tortfeasor.
    (2) When efforts under paragraph (c)(1) of this section are of no 
avail, or when it otherwise is determined that an insurance settlement 
will not be reasonably available for application to the award, no award 
will be made until the chief of the command claims service or the 
Commander USARCS, has first granted consent. In such cases, an 
assignment of the insured's rights against the insurer will be obtained 
and, in appropriate cases, reimbursement action will be instituted 
against the insurer under applicable procedures.
    (3) If an insurance settlement is not available due to the 
insurer's insolvency or bankruptcy, a report on the bankruptcy will be 
forwarded to the Commander USARCS without delay, setting forth all 
pertinent information, including the alleged reasons for the bankruptcy 
and the facts concerning the licensing of the insurer.
    (d) Deductions for amounts paid by tortfeasor. Settlement 
authorities will deduct from the damages any direct payments by a 
member or civilian employee of the U.S. armed forces for damages (other 
than solatia).


Sec.  536.140  Appointment and functions of Foreign Claims Commissions.

    (a) Claims cognizable under this subpart will be referred to the 
command responsible for claims arising within its geographic area of 
responsibility, including claims transferred by agreement between the 
services involved. The senior judge advocate of a command having a 
command claims service, or his delegee, will appoint a sufficient 
number of Foreign Claims Commissions (FCCs) to dispose of the claims. 
If there is no command claims service, the responsible commander may 
ask the Commander USARCS for permission to establish one. Otherwise, 
the Commander USARCS will appoint a sufficient number of FCCs from 
personnel furnished by the command involved. See Sec.  576.3(d) of this 
chapter for more information about command claims services.
    (b) The Commander USARCS will appoint all other FCCs to act on all 
other claims, regardless of where such claims arose, unless they arose 
in a country for which single-service responsibility has been assigned 
to another service. FCCs appointed by the Commander USARCS at units 
based in the continental United States (CONUS) may act on any claim 
arising out of such unit's operations. Any FCC operating in, or 
adjudicating claims arising out of, a geographical area within a 
command claims service's jurisdiction, will comply with that service's 
legal and procedural rules.
    (c) An FCC may operate as an integral part of a command claims 
service, which will determine the cases to be assigned to it, furnish 
necessary administrative services, and establish and maintain its 
records. Where an FCC does not operate as part of a command claims 
service, it may operate as part of the office or a division, corps or 
higher command staff judge advocate (SJA), which will perform the 
foregoing functions.
    (d) An appointing authority who appoints or relieves an FCC whom he 
or she has appointed will forward one copy of each order addressing an 
FCC's appointment, relief, or change of responsibility to the Commander

[[Page 46299]]

USARCS. Upon receipt of an initial appointing order, the Commander 
USARCS will assign an office code number to the FCC. Without such a 
number the FCC has no authority to approve or pay claims. See AR 27-20, 
paragraph 13-1.
    (e) Normally, the FCC is responsible for the investigation of all 
claims referred to it, using both the procedures set forth in subpart B 
of this part and any local procedures established by the appointing 
authority or command claims service responsible for the geographical 
area in which the claim arose. Chiefs of a command claims service may 
request assistance on claims investigation within their geographical 
areas from units or organizations other than the FCC. The Commander 
USARCS may make the same request for any claim referred to an FCC 
appointed under his or her authority.
    (f) When an FCC intends to deny a claim, or offer an award less 
than the amount claimed, it will notify in writing the claimant, the 
claimant's authorized agent, or legal representative of the intended 
action on the claim and the legal and factual bases for that action. If 
the FCC proposes a partial award, a settlement agreement should be 
enclosed with the notice. Claimants will be advised that they may 
either accept the FCC action by returning the signed settlement 
agreement or, if dissatisfied with the FCC's action, they may submit a 
request for reconsideration stating the factual or legal reasons why 
they believe the FCC's proposed action is incorrect. This notice serves 
to give the claimant an opportunity to request reconsideration of the 
FCC action and state the reasons for the request before final action is 
taken on the claim. When the FCC intends to award the amount claimed, 
or recommend an award equal to the amount claimed to a higher 
authority, this procedure is not necessary. However, a settlement 
agreement is required for all awards, full or partial. See Sec.  
536.63(a).
    (1) This notice should be given at least 30 days before the FCC 
takes final action, except on small claims processed pursuant to Sec.  
536.33. The notice should be mailed via certified or registered mail to 
the claimant. The claimant should be informed that any request for 
reconsideration should be addressed to the FCC that took final action, 
and that all materials the claimant wishes the FCC to consider should 
be included with the request for reconsideration.
    (2) An FCC may alter its initial decision based on the claimant's 
response or proceed with the intended action. If the claimant's 
response raises a general policy issue, the FCC may request an advisory 
opinion from the Commander USARCS or the chief of the command claims 
service while retaining the claim for final action at its level.
    (3) Upon completing of its evaluation of the claimant's response, 
the FCC will notify the claimant of its final decision and advise the 
claimant that its action is final and conclusive as a matter of law (10 
U.S.C. 2735), unless the final decision is a recommendation for payment 
above its authority. In that case, the FCC will forward any response 
submitted by the claimant along with its claims memorandum of opinion 
to the approval authority, and will notify the claimant accordingly.
    (4) When an FCC determines that a claim is valued at more than 
$50,000 or all claims arising out of a single incident are valued at 
more than $100,000, the file will be transferred to the Commander 
USARCS for further action; see Sec.  536.143(d)(2). Upon request of the 
Commander USARCS, the FCC may negotiate a settlement, the amount of 
which exceeds the FCC's authority; however, prior approval by a higher 
authority is required.
    (5) Every reasonable effort should be made to negotiate a mutually 
agreeable settlement on meritorious claims. When an agreement can be 
reached, the notice and response provisions above are not necessary. If 
the FCC recommends an award in excess of its monetary authority, the 
settlement agreement should indicate that its recommendation is 
contingent upon approval by higher authority.
    (g) The chief of an overseas command claims service may delegate to 
a one-member FCC the responsibility for the receipt, processing, and 
investigation of any claim, regardless of amount, except those required 
to be referred to a receiving State office for adjudication under the 
provisions of a treaty concerning the status of U.S. forces in the 
country in which the claim arose. If, after investigation, it appears 
that action by a three-member FCC is appropriate, the one-member FCC 
should send the claim to the appropriate three-member FCC with a 
complete investigation report, including a discussion of the applicable 
local law and a recommendation for disposition.


Sec.  536.141  Composition of Foreign Claims Commissions.

    (a) Normally, an FCC will be composed of either one or three 
members. Alternate members of three-member FCCs may be appointed when 
circumstances require, and may be substituted for regular members on 
specific cases by order of the appointing authority. The appointing 
orders will clearly designate the president of a three-member FCC. Two 
members of a three-member FCC will constitute a quorum, and the FCC's 
decision will be determined by majority vote.
    (b) Upon approval by the Commander USARCS and the appropriate 
authority of another uniformed service, the membership may be composed 
of one or more members of another uniformed service. If another service 
has single-service responsibility over the foreign country in which the 
claim arose, that service is responsible for the claim. If requested, 
the Commander USARCS may furnish a JAG officer or claims attorney to be 
a member of another service's FCC.


Sec.  536.142  Qualification of members of Foreign Claims Commissions.

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


Sec.  536.143  Settlement authority of Foreign Claims Commissions.

    (a) In order to determine whether the claim will be considered by a 
one-member or three-member FCC, the claimed amount will be converted to 
the U.S. dollar equivalent (based on the annual Foreign Currency 
Fluctuation Account exchange rate, where applicable). However, the 
FCC's jurisdiction to approve is determined by the conversion rate on 
the date of final action. Accordingly, if the value of the U.S. dollar 
has decreased, the FCC will forward the recommendation to a higher 
authority, if necessary.
    (b) Payment will be made in the currency of the country in which 
the incident occurred or in which the claimant resided at the time of 
the incident, unless the claimant requests payment in U.S. dollars or 
another currency and such request is approved by the chief of a command 
claims service or the Commander USARCS.

[[Page 46300]]

However, if the claimant resides in another foreign country at the time 
of payment, payment in an amount equivalent to that which would have 
been paid under the preceding sentence may be made in the currency of 
that third country without the approval of the Commander USARCS.
    (c) A one-member FCC may consider and pay claims presented in any 
amount provided a mutually agreed settlement may be reached in an 
amount not exceeding the FCC's monetary authority. A one-member FCC may 
deny any claim when the claimed amount does not exceed its monetary 
authority. Unless otherwise restricted by the appointing authority, a 
one-member FCC who is a JA or claims attorney has $15,000 monetary 
authority, while any other one-member commission has $5,000 monetary 
authority.
    (d) A three-member FCC, unless otherwise restricted by the 
appointing authority, may take the following actions on a claim that is 
properly before it:
    (1) Disapprove a claim presented in any amount. After following the 
procedures in Sec.  536.140, including reconsideration, the disapproval 
is final and conclusive under 10 U.S.C. 2735. The FCC will inform the 
appointing authority of its action. After it takes final action and 
disapproves a claim presented in any amount over $50,000, the FCC will 
forward to the appointing authority the written notice to the claimant 
required by Sec.  536.140(f), any response from the claimant, and its 
notice of final action on the claim.
    (2) Approve and pay meritorious claims presented in any amount. (i) 
Claims paid in full or in part for an amount not exceeding $50,000 will 
be paid after any reconsideration as set forth in Sec.  536.140. This 
action is final and conclusive under 10 U.S.C. 2735.
    (ii) Claims valued at an amount exceeding $50,000, or multiple 
claims arising from the same incident valued at more than $100,000, 
will be forwarded through the appointing authority with a memorandum of 
opinion to the Commander USARCS for action; see DA Pam 27-162, 
paragraph 2-60. The memorandum of opinion will discuss the amount for 
which the claimant will settle and include the recommendation of the 
FCC.
    (e) The Judge Advocate General (TJAG), The Assistant Judge Advocate 
General (TAJAG) and the Commander USARCS, or his or her designee 
serving at USARCS, may approve and pay, in whole or in part, any claim 
as long as the amount of the award does not exceed $100,000; may 
disapprove any claim, regardless of either the amount claimed or the 
recommendation of the FCC forwarding the claim; or, if a claim is 
forwarded to USARCS for approval of payment in excess of $50,000, refer 
the claim back to the FCC or another FCC for further action.
    (f) Payments in excess of $100,000 will be approved by the 
Secretary of the Army, the Army General Counsel as the Secretary's 
designee, or other designee of the Secretary.
    (g) Following approval where required and receipt of an agreement 
by the claimant accepting the specific sum awarded by the FCC, the 
claim will be processed for payment in the appropriate currency. The 
first $100,000 of any award will be paid from Army claims funds. The 
excess will be reported to the Financial Management Service, Department 
of Treasury, with the documents listed in DA Pam 27-162, paragraph 2-
81.
    (h) If the settlement authority upholds a final offer or authorizes 
an award on appeal from a denial of a claim, the notice of the 
settlement authority's action will inform the claimant that he or she 
must accept the award within 180 days of the date of mailing of the 
notice of the settlement authority's action or the award will be 
withdrawn, the claim will be deemed denied, and the file will be closed 
without future recourse.


Sec.  536.144  Reopening a claim after final action by a Foreign Claims 
Commission.

    (a) Original approval or settlement authority (including TAJAG, 
TJAG, Secretary of the Army, or the Secretary's designees). (1) An 
original settlement authority may reconsider the denial of, or final 
offer on a claim brought under the FCA upon request of the claimant or 
the claimants authorized agent. In the absence of such a request, the 
settlement authority may reconsider a claim on its own initiative.
    (2) An original approval or settlement authority may reopen and 
correct action on an FCA claim previously settled in whole or in part 
(even if a settlement agreement has been executed) when it appears that 
the original action was incorrect in law or fact based on the evidence 
of record at the time of the action or subsequently received. For 
errors in fact, the new evidence must not have been discoverable at the 
time of final action by either the Army or the claimant through the 
exercise of reasonable diligence. Corrective action may also be taken 
when an error contrary to the parties' mutual understanding is 
discovered in the original action. If it is determined that the 
original action was incorrect, the action will be modified, and if 
appropriate, a supplemental payment made. The basis for a change in 
action will be stated in a memorandum included in the file. For 
example, a claim was settled for $15,000, but the settlement agreement 
was typed to read ``$1,500'' and the error is not discovered until the 
file is being prepared for payment. If appropriate, a corrected payment 
will be made. A settlement authority who has reason to believe that a 
settlement was obtained by fraud on the part of the claimant or the 
claimant's legal representative, will reopen action on that claim and, 
if the belief is substantiated, correct the action. The basis for 
correcting an action will be stated in a memorandum and included in the 
file.
    (b) A successor approval or settlement authority (including TAJAG, 
TJAG, Secretary of the Army, or the Secretary's designees). (1) 
Reconsideration. A successor approval or settlement authority may 
reconsider the denial of, or final offer on, an FCA claim upon request 
of the claimant or the claimant's authorized agent only on the basis of 
fraud, substantial new evidence, errors in calculation, or mistake 
(misinterpretation) of law.
    (2) Settlement correction. A successor approval or settlement 
authority may reopen and correct a predecessor's action on a claim that 
was previously settled in whole or in part for the same reasons that an 
original authority may do so.
    (c) Time requirement for filing request for reconsideration. 
Requests postmarked more than five years from the date of mailing of 
final notice will be denied based on the doctrine of laches.
    (d) Finality of action. Action by the appropriate authority (either 
affirming the prior action or granting full or partial relief) is final 
under the provisions of 10 U.S.C. 2735. Action upon request for 
reconsideration constitutes final administrative disposition of a 
claim. No further requests for reconsideration will be allowed except 
on the basis of fraud.


Sec.  536.145  Solatia payment.

    Payment of solatia in accordance with local custom as an expression 
of sympathy toward a victim or his or her family is common in some 
overseas commands. Solatia payments are known to be a custom in the 
Federated States of Micronesia, Japan, Korea, and Thailand. In other 
countries, the FCC should consult the command claims service or 
Commander USARCS for guidance. Such payments are not to be made from 
the claims expenditure allowance. These payments are made from local 
operation and maintenance

[[Page 46301]]

funds. This applies even where a command claims service is directed to 
administer the command's solatia program. See, for example, United 
States Forces Korea Regulation 526-11 regarding solatia amounts and 
procedures.

Subpart K--Nonappropriated Fund Claims


Sec.  536.146  Claims against nonappropriated fund employees--
generally.

    This subpart sets forth the procedures to follow in the settlement 
and payment of claims generated by the acts or omissions of the 
employees of nonappropriated fund (NAF) activities. NAF activities 
include NAF or Army and Air Force Exchange Service (AAFES) facilities, 
post exchanges, bowling centers, officers and noncommissioned officers' 
clubs, and other facilities located on land or situated in a building 
used by an activity that employs personnel compensated from NAFs.


Sec.  536.147  Claims by NAFI employees for losses incident to 
employment.

    Claims by employees for the loss of or damage to personal property 
incident to employment will be processed in the manner prescribed by AR 
27-20, chapter 11 and will be paid from NAFs in accordance with Sec.  
536.152.


Sec.  536.148  Claims generated by the acts or omissions of NAFI 
employees.

    (a) Processing. Claims arising out of acts or omissions of 
employees of NAFI activities will be processed and settled in the 
manner specified for similar claims against the United States, except 
that payment will be made from NAFs in accordance with AR 215-1 
(Morale, Welfare, and Recreation Activities and Nonappropriated Fund 
Instrumentalites) and Sec.  536.152 of this part.
    (b) Procedural requirements. Procedural requirements of this part's 
pertinent subparts, as stated below, will be followed except as 
provided in Sec. Sec.  536.151 and 536.152. However, when the 
Nonappropriated Fund Instrumentality (NAFI) is protected by a 
commercial insurer (for example, flying and parachute activities), the 
claim will be referred to the insurer as outlined in Sec.  536.148(d). 
See Department of Defense Directive (DODD) 5515.6, dated November 3, 
1956, posted on the USARCS Web site (see Sec.  536.2(a)).
    (1) Claims arising within the United States, its territories, 
commonwealths, or possessions. Such claims will be processed in the 
manner prescribed by subparts C, D, E, F, H or J of this part, as 
appropriate.
    (2) Claims arising outside the United States, its territories, 
commonwealths, or possessions. Such claims will be processed in 
accordance with the provisions of applicable Status of Forces 
Agreements (SOFAs) or in the manner prescribed by subparts C, D, E, F, 
H or J of this part, as appropriate.
    (b) Reporting and investigation. Such claims will be investigated 
in accordance with AR 215-1 and subpart B of this part.
    (1) Reporting. Personal injury, death, or property damage resulting 
from vehicular collisions, falls, falling objects, assaults, or 
accidents of similar nature will be reported immediately to the person 
in charge of the NAFI or activity at which it occurred. The report 
should be made by the employee who initially received notice of the 
incident, even if the individual involved denies sustaining personal 
injury or property damage. Upon receipt of the report of the incident, 
the person in charge of the NAF activity concerned will transmit the 
report to the area claims office (ACO) or claims processing office 
(CPO) for investigation.
    (2) Investigation. Claims arising out of acts or omissions of 
employees of NAF activities will be investigated in the manner set 
forth in subpart B of this part. A determination as to whether the 
claim is cognizable under this section will be made as soon as 
practicable.
    (c) Customer complaints. AAFES-generated complaints will be handled 
in accordance with Exchange Service Manual 57-2. NAFI-generated 
complaints will be handled in accordance with AR 215-1, chapter 3. 
Complaints generated by appropriated funds laundry and dry-cleaning 
operations will be handled in accordance with AR 210-130, chapter 2. 
Complaints generated by refunds of sales proceeds will be handled in 
accordance with Exchange Operating Procedures (EOP) 57-2.
    (d) Commercial insurance. Certain NAFI activities (such as flying 
and parachute activities, and all AAFES concessionaires) may have 
private commercial insurance.
    (1) A claims investigation under subpart B of this part will not be 
conducted except when the claim's estimated value may exceed the 
insurance policy limits. In that event, the Commander USARCS, will be 
notified immediately and an investigation will be conducted with a view 
to determining whether the United States may be liable under subparts 
C, D, F, H or J of this part. Otherwise, the ACO or CPO will refer the 
claim to the insurer and furnish copies to the USARCS AAO, as required 
in AR 27-20, paragraph 2-12. Assistance will be furnished to the 
insurer as needed. Copies of any other required investigations may be 
furnished to the insurer.
    (2) The claim will be reviewed at key intervals to ensure that 
progress is being made, negotiations are properly conducted, and the 
file is closed. The Commander USARCS will be advised of any problems.
    (3) If requested by either the insurer or NAFI officials, the 
appropriate claims authority will assist in or conduct negotiations.
    (4) Where NAFI vehicles are required to be covered by insurance in 
foreign countries, the insurer will process the claim. However, if the 
policy coverage limit is exceeded or the insurer is insolvent, the 
claim may be processed under subpart G, Sec. Sec.  536.114 through 
536.116 (Claims arising overseas) or, if subpart G does not apply, 
under subparts C or J of this part. See Sec.  536.139(c) for additional 
guidance.


Sec.  536.149  Identification of persons whose actions may generate 
liability.

    Claims resulting from the acts or omissions of members of the 
classes of persons listed below may be processed under this section. An 
ACO or a CPO authority will ask the Commander USARCS, for an advisory 
opinion prior to settling any claim where the person whose conduct 
generated the claim does not clearly fall within one of the following 
categories:
    (a) Civilian employees of NAFI activities whose salaries are paid 
from NAFs.
    (b) Active duty military personnel while performing off-duty part-
time work for which they are compensated from NAFIs, not to include 
members who are acting in their capacity as an officer or other 
official of the NAFI.
    (c) Volunteers serving in an official capacity in furtherance of 
the business of the United States, limited to those categories set 
forth in DA Pam 27-162, paragraph 2-45d.


Sec.  536.150  Claims payable from appropriated funds.

    Claims payable from appropriated funds (APFs) will be processed 
under the appropriate subpart. Appropriated fund payable claims include 
those resulting from:
    (a) Acts or omissions of military personnel while performing 
assigned military duties in connection with NAFI activities.
    (b) Acts or omissions of civilian employees paid from appropriated 
funds in connection with NAFI activities.

[[Page 46302]]

    (c) Negligent maintenance of an appropriated funds facility used by 
a NAFI activity but for which the Department of Defense or Department 
of the Army (DA) command concerned is responsible and has been notified 
of the deficiency by the NAF. Where liability is determined to exist 
for both a NAFI and an appropriated fund activity, liability will be 
apportioned between the two activities.
    (d) Temporary use of a NAFI facility by an appropriated fund 
activity.
    (e) Operation of government owned or rented vehicles on authorized 
missions for NAFI activities where the driver is a DA soldier or 
civilian employee and is paid from APFs.


Sec.  536.151  Settlement authority for claims generated by acts or 
omissions of NAFI employees.

    (a) Settlement. Claims cognizable under this section and processed 
under subparts C, D, E, G, H or J of this part will be settled by 
claims authorities authorized to settle claims under those subparts 
subject to the same monetary and denial authority limitations, except 
that The Judge Advocate General (TJAG), The Assistant Judge Advocate 
General (TAJAG), and the Commander USARCS may settle such claims 
without regard to monetary limitations. However, the approval of the 
Attorney General or Assistant General Counsel may be required for an 
apportioned amount to be paid from APFs when subpart D of this part 
procedures are used and the amount to be paid from APFs exceeds 
$200,000. Similarly, approval of TAJAG, the Attorney General or the 
Assistant General Counsel is required when using procedures under 
subparts C, F, H, or J of this part and an apportioned amount to be 
paid from APFs exceeds the limits set for the Commander, USARCS.
    (b) Finality of settlement. A determination made by a claims 
settlement authority on a claim processed under subpart D of this part 
is subject to suit. A claim processed under subparts C or F of this 
part may be appealed. Claims processed under subparts C, D, E, H, or J 
of this part, or AR 27-20, chapter 11 may be reconsidered in accordance 
with the sections addressing reconsideration in those subparts (or 
paragraphs in the case of Chapter 11).


Sec.  536.152  Payment of claims generated by acts or omissions of NAFI 
employees.

    (a) The settlement or approval authority will forward the 
appropriate payment documents to the office listed in DA Pam 27-162, 
paragraph 2-80h, for payment.
    (b) Reimbursement to a foreign country of the United States' pro 
rata share of a claim paid pursuant to an international agreement will 
be made from NAFs.


Sec.  536.153  Claims involving tortfeasors other than nonappropriated 
fund employees: NAFI contractors.

    AAFES concessionaires and NAFI contractors, such as entertainment 
performers or groups, carnival operators, and fireworks displayers are 
considered independent contractors and claims arising from their 
activities should be disposed of as set forth in DA Pam 27-162, 
paragraph 2-15f. If a dispute arises as to the availability of 
liability or workers compensation insurance the claims should be 
referred to AAFES Dallas (see address in Sec.  536.30(e)(4)) or the 
Central Insurance Fund, U.S. Army Community and Family Support Agency 
as applicable.


Sec.  536.154  Claims involving tortfeasors other than nonappropriated 
fund employees: NAFI risk management program (RIMP) claims.

    The risk management program (RIMP) is administered by the U.S. Army 
Community and Family Support Center under the provisions of AR 215-1 
and AR 608-10 (Family Child Care Provider Claims). Providers in order 
to encourage authorized personnel, that is, military and civilian 
employees, to use the family child care program and sports equipment, 
such claims are processed in a manner similar to NAFI claims in 
Sec. Sec.  536.146 through 536.152 of this subpart. Certain claims are 
payable from nonappropriated funds even though the U.S. is not liable 
under the FTCA or the MCA as the tortfeasor is not an appropriated fund 
or nonappropriated fund employee.


Sec.  536.155  Claims payable involving tortfeasors other than 
nonappropriated fund employees.

    (a) Non-NAFI RIMP claims can arise from the activities of:
    (1) Members of NAFIs or authorized users of NAFI sports equipment 
or devices for recreational purposes, while using such property, except 
real property, in the manner and for the purposes authorized by DA 
regulations and the charter, constitution, and bylaws of the particular 
NAF activity.
    (2) Family child care providers, authorized members of the 
provider's household and approved substitute providers while care under 
the family child care program is being provided in the manner 
prescribed in AR 608-10, except as excluded below. Such claims are 
generally limited to injuries to, or death of, children receiving care 
under the family child care program that are caused by the negligence 
of authorized providers. Claims arising from the transportation of such 
children in motor vehicles and claims involving loss of or damage to 
property are not cognizable.
    (b) An ACO or a CPO will ask the Commander USARCS for an advisory 
opinion prior to settling any non-NAFI RIMP claim where the person 
whose conduct generated liability does not fall clearly within the 
categories listed above. Such authorities may also ask, through the 
Commander USARCS, for an advisory opinion from the U.S. Army Community 
and Family Support Center prior to settling any claim arising under 
paragraph (a)(2) of this section, where it is not clear that the 
injured or deceased child was receiving care within the scope of the 
family child care program.
    (c) Where liability has been determined to exist for both non-NAFI 
RIMP and APF activities, liability will be apportioned between the two 
activities.
    (d) The total payment for all claims (including derivative claims), 
arising as a result of injury to, or death of, any one person is 
limited to $500,000 for each incident. Continuous or repeated exposure 
to substantially the same or similar harmful activity or conditions is 
treated as one incident for purposes of determining the limits of 
liability.


Sec.  536.156  Procedures for claims involving tortfeasors other than 
nonappropriated fund employees.

    (a) Reporting. Non-NAFI RIMP claims (regardless of the amount 
claimed) and incidents that could give rise to non-NAFI RIMP claims 
will be reported to USARCS and the Army Central Insurance Fund 
immediately.
    (b) Investigation. ACOs and CPOs are responsible for the 
investigation of non-NAFI RIMP claims. Such investigation will be 
closely coordinated with program managers responsible for the activity 
generating the claim. Close coordination with USARCS is also required, 
and USARCS will maintain mirror files containing the investigative 
materials of all actual and potential claims.
    (c) Payment. Non-NAFI RIMP claims will be transmitted for payment 
to: The Army Central Insurance Fund, ATTN: CFSC-FM-I, 4700 King Street, 
Alexandria, VA 22302-4406.
    (d) Commercial insurance. The provisions of Sec.  536.148(d) also 
apply to claims arising under this section, except that in claims 
involving family child care providers, a claims investigation will be 
conducted regardless of whether commercial insurance exists.

[[Page 46303]]

Sec.  536.157  Settlement/approval authority for claims involving 
tortfeasors other than nonappropriated fund employees.

    (a) Settlement authority. TJAG, TAJAG, and the Commander USARCS are 
authorized to approve in full or in part, or deny a non-NAFI RIMP 
claim, regardless of the amount claimed, except where an apportioned 
amount to be paid from APFs exceeds their monetary authority and the 
action of the Attorney General or Assistant General Counsel is required 
as set forth in Sec.  536.151(a).
    (b) Approval authority. (1) The staff judge advocate, Commander or 
chief of a command claims service, and a head of an area claims office 
are authorized to approve in full or in part non-NAFI RIMP claims 
presented in the amount of $50,000 or less, provided the acceptance is 
in full settlement and all claims and potential claims arising out of a 
single incident do not exceed $100,000.
    (2) The above authorities are not delegated authority to deny or 
make a final offer on a claim under this section. Claims requiring such 
action will be forwarded to the Commander USARCS with an appropriate 
recommendation.
    (c) Finality of settlement. A denial or final offer on a non-NAFI 
RIMP claim is final and conclusive and is not subject to 
reconsideration or appeal.

[FR Doc. 06-6789 Filed 8-10-06; 8:45 am]
BILLING CODE 3710-08-P


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