46260 Federal Register / Vol. 71, No. 155 / Friday, August 11, 2006 / Proposed Rules 

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. 

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: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• 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 NonScope Claims Act. 

536.91 Scope for claims under the NonScope Claims Act. 

536.92 Claims payable under the NonScope Claims Act. 

536.93 Claims not payable under the NonScope 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 

§ 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. 

§ 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 § 536.80). 

(iii) Certain suits arising out of legal 

malpractice, 10 U.S.C. 1054, discussed 

at § 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 § 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 § 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 § 536.34 or 

§ 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 § 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. 

§ 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 § 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 § 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. 

§ 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 


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or above, and performing primary duties 

as a legal adviser. 

§ 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. 

§ 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. 

§ 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 § 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 § 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 singleservice 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 §§ 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 


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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. 

§ 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 § 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 § 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. 

§ 536.9 Responsibilities and operations of 

area claims offices. 

(a) Heads of ACOs. Heads of ACOs, 

including COE offices (see § 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 

§ 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 § 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 § 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 

§ 536.10(a), if indicated, the full-time 


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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 § 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. 

§ 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 § 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 § 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. 

§ 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 § 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. 


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(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. 

§ 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). 

§ 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. 

§ 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 §§ 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 § 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. 

§ 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 nonmeritous 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 


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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. 

§ 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. 

§ 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 § 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 


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site; for the address see § 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 § 536.17: See also § 536.32 for 

information on transferring claims among 

armed services branches. 

§ 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 § 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 § 536.18: See also § 536.32 for 

information on transferring claims among 

armed services branches. 

§ 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. 

§ 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. 

§ 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 

§ 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, §§ 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 §§ 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 § 536.22: See the parallel 

discussion at DA Pam 27–162, paragraph 2–

1. 

§ 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 


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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 § 536.23: See the parallel 

discussion at DA Pam 27–162, paragraph 2–

2. 

§ 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 

§ 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 


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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 § 536.24: See the parallel 

discussion at DA Pam 27–162, paragraph 2–

3. 

§ 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. 

§ 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 § 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 § 536.26: See the parallel 

discussion at DA Pam 27–162, paragraph 

2–5. 

§ 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 § 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 § 536.77(c)(1)(i)). Under 


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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 § 536.27: See the parallel 

discussion at DA Pam 27–162, paragraph 2–

6. 

§ 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 § 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. 

§ 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 § 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 


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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 § 536.29: See the parallel 

discussion at DA Pam 27–162, paragraph 2–

8. 

§ 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 

§§ 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, #6–100, Silver Spring, MD 20910–

6254, Commercial: 301–295–8115, E-Mail: 

casha@afip.osd.mil. 

(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: 

blanchp@aafes.com. 

(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: 

riskmanagement@cfsc.army.mil. 

(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 § 536.30: See the parallel 

discussion at DA Pam 27–162, paragraph 2–

9. 

§ 536.31 Opening claim files. 

A claim file will be opened when: 

(a) Information that requires 

investigation under § 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 § 536.31: See the parallel 

discussion at DA Pam 27–162, paragraph 2–

10. 

§ 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 § 536.32: See also §§ 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. 

§ 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. 

§ 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 


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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 § 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 

§ 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 § 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 singleservice 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. 


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(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 nongovernmental vehicles. See also § 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 


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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 

§ 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 § 536.34: See parallel discussion at 

DA Pam 27–162, paragraph 2–1. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 

§ 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. 

§ 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 


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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. 

§ 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, 

§ 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. 

§ 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. 

§ 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 §§ 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 § 536.43: For further discussion see 

DA Pam 27–162, paragraph 2–37. 

§ 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-toservice 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. 

§ 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 §§ 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 

§§ 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 

§ 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 § 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. 


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(k) Arises in a foreign country. This 

exclusion does not apply to subparts C, 

E, F, H, J or §§ 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 § 536.45: This topic is more fully 

discussed in DA Pam 27–162, paragraph 2–

39. 

§ 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 nonjusticiable 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 § 536.46: See parallel discussion at 

DA Pam 27–162, paragraphs 2–40 through 2–

43. 

§ 536.47 Statute of limitations. 

To be payable, a claim against the 

United States under any subpart, except 

§§ 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 § 536.26(a) and parallel 

discussion at DA Pam 27–162, 

paragraph 2–44. 

§ 536.48 Federal employee requirement. 

To be payable, a claim under any 

subpart except subpart K of this part, 

§§ 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. 

§ 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, §§ 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. 

§ 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 § 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 § 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 


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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 § 536.50: For further discussion see 

DA Pam27–162, paragraph 2–51. 

§ 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. 

§ 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. 

§ 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 § 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 § 536.53: For further discussion see 

DA Pam 27–162, paragraph 2–59. 

§ 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. 

§ 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 § 536.55: For further discussion, 

see DA Pam 27–162, paragraph 2–63. 

§ 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 


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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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 §§ 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, threemember 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 § 536.61: For further discussion see 

DA Pam 27–162, paragraph 2–71. 

§ 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, 


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see § 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 § 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 § 536.62: For further discussion see 

DA Pam 27–162, paragraph 2–72. 

§ 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 §§ 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 


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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. 

§ 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 § 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 § 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 § 536.64: For further discussion see 

DA Pam 27–162, paragraph 2–74. 

§ 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 § 536.65: See § 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. 

§ 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 


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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 § 536.66: For further discussion see 

DA Pam 27–162, paragraph 2–76. 

§ 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 

§ 536.68. 

Note to § 536.67: See also AR 27–20, 

paragraph 13–5, and DA Pam 27–162, 

paragraph 2–77. 

§ 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 § 536.62) 

stating the reasons why the request is 

invalid. 

Note to § 536.68: See also DA Pam 27–162, 

paragraph 2–78. 

§ 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. 

§ 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 courtappointed 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 § 536.70: See also § 536.63 and DA 

Pam 27–162, paragraphs 2–73 and 2–81. 

§ 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, §§ 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, 

§§ 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 § 536.71: For further discussion see 

DA Pam 27–162, paragraph 2–80. 


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§ 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 

§ 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). 

§ 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 

§ 536.23(b)) acting within the scope of 

their employment, except for nonfederalized 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 § 536.136(b). 

§ 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 § 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. 

§ 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 § 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 

§ 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 §§ 536.42, 536.43, 

536.44, 536.45, and 536.46 of this part, 

except for the exclusion listed in 

§ 536.45(k). Additionally, the exclusions 

in §§ 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. 

§ 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 


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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 § 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 

§§ 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 § 536.45(h). 

(viii) In a claim for personal injury or 

wrongful death, the total award for noneconomic 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. 


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(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 § 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 

§ 536.50(e) and DA Pam 27–162, 

paragraph 2–56a.) 

(2) Proper claimants are described in 

§ 536.27. Claims for subrogation are 

excluded. (See § 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. 

§ 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 

§ 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 


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job-related injuries (see § 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 


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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 

§ 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 § 536.2(a). 

§ 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. 

§ 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 § 536.23(b) of 

this part. 

§ 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. 

§ 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 §§ 536.41 through 536.52. 

§ 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 § 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 


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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. 

§ 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 

§ 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 

§ 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 § 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 

§ 536.90 Statutory authority for the NonScope 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).’’

§ 536.91 Scope for claims under the NonScope 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. 

§ 536.92 Claims payable under the NonScope 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 § 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, 


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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. 

§ 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 § 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. 

§ 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 § 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. 

§ 536.95 Reconsideration of Non-Scope 

Claims Act claims. 

The provisions of § 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 

§ 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. 

§ 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 fulltime National Guard duty or inactiveduty 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. 

§ 536.98 Claims payable under the 

National Guard Claims Act. 

The provisions of § 536.75 apply to 

claims arising under this subpart. 


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§ 536.99 Claims not payable under the 

National Guard Claims Act. 

The provisions of § 536.76 apply to 

claims arising under this subpart. 

§ 536.100 Applicable law for claims under 

the National Guard Claims Act. 

The provisions of § 536.77 apply to 

claims arising under this subpart. 

§ 536.101 Settlement authority for claims 

under the National Guard Claims Act. 

The provisions of § 536.78 apply to 

claims arising under this subpart. 

§ 536.102 Actions on appeal under the 

National Guard Claims Act. 

The provisions of § 536.79 apply to 

claims arising under this subpart. 

Subpart G—Claims Cognizable Under 

International Agreements 

§ 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. 

§ 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 § 536.2(a). 

§ 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. 

§ 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. 

§ 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. 

§ 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, thirdparty ex gratia claims are payable only 

by the sending State and are not payable 

under subpart E of this part. 

§ 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 


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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). 

§ 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 offduty 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 § 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 


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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 §§ 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. 

§ 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 § 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 

§ 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. 

§ 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. 

§ 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. 

§ 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 Armyowned 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. 

§ 536.121 Claims not payable as maritime 

claims. 

Under this subpart, claims are not 

payable if they: 

(a) Are listed in §§ 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 


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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 § 536.34(c). 

§ 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 

§ 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. 

§ 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. 

§ 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 

§ 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 § 536.30 and AR 27–20, 

paragraph 2–12. 

Subpart I—Claims Cognizable Under 

Article 139, Uniform Code of Military 

Justice 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 


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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 

§ 536.130(f)) or consequential damages 

(see § 536.130(g)). 

(e) Claims cognizable under more 

than one statute. Claims cognizable 

under other claims statutes may be 

processed under this subpart. 

§ 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. 

§ 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 CourtsMartial 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. 

§ 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 


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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 

§ 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 § 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. 

§ 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 


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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 § 536.132(h). 

§ 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 

§ 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 § 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, Noncontractual 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 § 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. 

§ 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 § 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. 

§ 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 § 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 § 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. 

§ 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 


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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 § 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. § 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 §§ 536.45 and 536.46, 

except for the exclusions listed in 

§§ 536.45(e), (h) and (k). Additionally, 

the exclusions set forth in §§ 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 § 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. 

§ 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 § 536.77 

for further damages guidance. 

(b) Other guidance. The guidance set 

forth in §§ 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). 

§ 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 § 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 


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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 § 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 § 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 § 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 onemember 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. 

§ 536.141 Composition of Foreign Claims 

Commissions. 

(a) Normally, an FCC will be 

composed of either one or three 

members. Alternate members of threemember 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 singleservice 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. 

§ 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. 

§ 536.143 Settlement authority of Foreign 

Claims Commissions. 

(a) In order to determine whether the 

claim will be considered by a onemember 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. 


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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 § 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 § 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 § 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. 

§ 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. 

§ 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 


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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 

§ 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. 

§ 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 § 536.152. 

§ 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 § 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 

§§ 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 

§ 536.148(d). See Department of Defense 

Directive (DODD) 5515.6, dated 

November 3, 1956, posted on the 

USARCS Web site (see § 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. AAFESgenerated 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, §§ 536.114 through 

536.116 (Claims arising overseas) or, if 

subpart G does not apply, under 

subparts C or J of this part. See 

§ 536.139(c) for additional guidance. 

§ 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. 

§ 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. 


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(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. 

§ 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). 

§ 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. 

§ 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 

§ 536.30(e)(4)) or the Central Insurance 

Fund, U.S. Army Community and 

Family Support Agency as applicable. 

§ 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 

§§ 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. 

§ 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. 

§ 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 nonNAFI 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 nonNAFI 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 § 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. 


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§ 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 

§ 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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