Proposed Rule: Claims and Accounts: Claims Against United States

Friday,
August 11, 2006
Part II
Department of
Defense
Department of the Army
32 CFR Part 536

Claims Against the United States;
Proposed Rule
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46260 Federal Register / Vol. 71, No. 155 / Friday, August 11, 2006 / Proposed Rules
DEPARTMENT OF DEFENSE concerning the Department of the Army Management and Budget review under
be published in the Federal Register. section 6(a)(3) of the Executive Order.
Department of the Army The policies and procedures covered by
H. Executive Order 13045 (Protection of
this regulation fall into that category.
32 CFR Part 536 AR 27–20 and its companion DA Pam Children From Environmental Health
27–162 will be available on the Web site Risk and Safety Risks)
RIN 0702–AA54
of the U.S. Army Publications The Department of the Army has
[Docket No. USA–2006–0022] Directorate, http://www.apd.army.mil, determined that according to the criteria
within a few months of the date of this defined in Executive Order 13045 this
Claims Against the United States Federal Register publication of 32 CFR proposed rule does not apply.
AGENCY:Department of the Army, DOD. part 536. Users are encouraged to
consult the online versions, whose I. Executive Order 13132 (Federalism)
Proposed rule; request for
ACTION:
comments. structure and paragraph numbering are
comparable. The Department of the Army has
determined that according to the criteria
SUMMARY: The Department of the Army B. Regulatory Flexibility Act defined in Executive Order 13132 this
proposes to amend its regulations to
The Department of the Army has proposed rule does not apply because it
reflect a substantial revision of AR 27–
determined that the Regulatory will not have a substantial effect on the
20, an Army publication which governs
Flexibility Act does not apply because States, on the relationship between the
the processing of claims worldwide. The
the proposed rule does not have a national government and the States, or
purpose of this revision is to make AR
significant economic impact on a on the distribution of power and
27–20 clearer and easier to use, after
substantial number of small entities responsibilities among the various
years of piecemeal amendments. This
within the meaning of the Regulatory levels of government.
rewrite also ensures that AR 27–20 is in
keeping with current statutes, legal Flexibility Act, 5 U.S.C. 601–612. Col. Dale Woodling,
opinions and Department of Justice C. Unfunded Mandates Reform Act Commander, United States Army Claims
guidance pertaining to claims Service.
processing. This updated rule will The Department of the Army has
expedite payment of meritorious claims determined that the Unfunded List of Subjects in 32 CFR Part 536
throughout the world. Mandates Reform Act does not apply
because the proposed rule does not Claims, Government employees,
DATES: Comments submitted on or Military personnel.
include a mandate that may result in
before October 10, 2006 will be
estimated costs to State, local or tribal For reasons stated in the preamble the
considered.
governments in the aggregate, or the Department of the Army proposes to
ADDRESSES: You may submit comments, private sector, of $100 million or more. revise 32 CFR part 536 to read as
identified by ‘‘32 CFR part 536, Docket follows:
No. USA–2006–0022 and or RIN 0702– D. National Environmental Policy Act
AA54’’ in the subject line, by any of the The Department of the Army has PART 536—CLAIMS AGAINST THE
following methods: determined that the National UNITED STATES
• Federal eRulemaking Portal: http:// Environmental Policy Act does not
www.regulations.gov. Follow the apply because the proposed rule does Subpart A—The Army Claims System
instructions for submitting comments. not have an adverse impact on the Sec.
• Mail: Federal Docket Management environment. 536.1 Purpose of the Army Claims System.
System Office, 1160 Defense Pentagon, 536.2 Claims authorities.
E. Paperwork Reduction Act
Washington, DC 20301–1160. 536.3 Command and organizational
Instructions: All submissions received The Department of the Army has relationships.
must include the agency name and determined that the Paperwork 536.4 Designation of claims attorneys.
docket number or Regulatory Reduction Act does not apply because 536.5 The Judge Advocate General.
Information Number (RIN) for this the proposed rule does not involve 536.6 The Army claims mission.
Federal Register document. The general collection of information from the 536.7 Responsibilities of the Commander
policy for comments and other public. USARCS.
submissions from members of the public 536.8 Responsibilities and operations of
F. Executive Order 12630 (Government command claims services.
is to make these submissions available Actions and Interference With
for public viewing on the Internet at 536.9 Responsibilities and operations of
Constitutionally Protected Property area claims offices.
http://www.regulations.gov as they are Rights) 536.10 Responsibilities and operations of
received without change, including any
The Department of the Army has claims processing offices.
personal identifiers or contact 536.11 Chief of Engineers.
information. determined that Executive Order 12630
does not apply because the proposed 536.12 Commanding General, U.S. Army
FOR FURTHER INFORMATION CONTACT: Medical Command.
rule does not impair private property
George Westerbeke (301) 677–7009, 536.13 Chief, National Guard Bureau.
rights. 536.14 Commanders of major Army
x220.
G. Executive Order 12866 (Regulatory commands.
SUPPLEMENTARY INFORMATION: 536.15 Claims policies.
Planning and Review)
A. Background 536.16 Release of information policies.

The Department of the Army has 536.17 Single-service claims responsibility
This rule was previously published. determined that according to the criteria (DODD 5515.8 and DODD 5515.9).
The Administrative Procedure Act, as defined in Executive Order 12866 this 536.18 Cross-servicing of claims.
amended by the Freedom of Information proposed rule is not a significant 536.19 Disaster claims planning.
Act requires that certain policies and regulatory action. As such, the proposed 536.20 Claims assistance visits.
procedures and other information rule is not subject to Office of 536.21 Annual claims award.
Federal Register / Vol. 71, No. 155 / Friday, August 11, 2006 / Proposed Rules 46261
Subpart B—Investigation and Processing of 536.76 Claims not payable under the 536.107 Scope for international agreements
Claims Military Claims Act. claims arising in the United States.
536.22 Claims investigative responsibility— 536.77 Applicable law for claims under the 536.108 Claims payable under international
general. Military Claims Act. agreements (for those arising in the
536.23 Identifying claims incidents both for 536.78 Settlement authority for claims United States).
and against the government. under the Military Claims Act. 536.109 Claims not payable under
536.24 Delegation of investigative 536.79 Action on appeal under the Military international agreements (for those
responsibility. Claims Act. arising in the United States).
536.25 Procedures for accepting claims. 536.80 Payment of costs, settlements, and 536.110 Notification of incidents arising
536.26 Identification of a proper claim. judgments related to certain medical under international agreements (for
536.27 Identification of a proper claimant. malpractice claims. claims arising in the United States).
536.28 Claims acknowledgment. 536.81 Payment of costs, settlements, and 536.111 Investigation of claims arising
536.29 Revision of filed claims. judgments related to certain legal under international agreements (for those
536.30 Action upon receipt of claim. malpractice claims. claims arising in the United States).
536.31 Opening claim files. 536.82 Reopening an MCA claim after final 536.112 Settlement authority for claims
536.32 Transfer of claims among armed action by a settlement authority. arising under international agreements
services branches. (for those claims arising in the United
536.33 Use of small claims procedures. Subpart D—Claims Cognizable Under the States).
536.34 Determination of correct statute. Federal Tort Claims Act 536.113 Assistance to foreign forces for
536.35 Unique issues related to 536.83 Statutory authority for the Federal claims arising under international
environmental claims. Tort Claims Act. agreements (as to claims arising in the
536.36 Related remedies. 536.84 Scope for claims under the Federal United States).
536.37 Importance of the claims Tort Claims Act . 536.114 Scope for claims arising overseas
investigation. 536.85 Claims payable under the Federal under international agreements.
536.38 Elements of the investigation. Tort Claims Act. 536.115 Claims procedures for claims
536.39 Use of experts, consultants and 536.86 Claims not payable under the arising overseas under international
appraisers. Federal Tort Claims Act. agreements.
536.40 Conducting the investigation. 536.87 Applicable law for claims under the 536.116 Responsibilities as to claims arising
536.41 Determination of liability— Federal Tort Claims Act. overseas under international agreements.
generally. 536.88 Settlement authority for claims
536.42 Constitutional torts. under the Federal Tort Claims Act. Subpart H—Maritime Claims
536.43 Incident to service. 536.89 Reconsideration of Federal Tort 536.117 Statutory authority for maritime
536.44 FECA and LSHWCA claims Claims Act claims. claims.
exclusions. 536.118 Related statutes for maritime
536.45 Statutory exceptions. Subpart E—Claims Cognizable Under the claims.
536.46 Other exclusions. Non-Scope Claims Act 536.119 Scope for maritime claims.
536.47 Statute of limitations. 536.90 Statutory authority for the Non- 536.120 Claims payable as maritime claims.
536.48 Federal employee requirement. Scope Claims Act. 536.121 Claims not payable as maritime
536.49 Scope of employment requirement. 536.91 Scope for claims under the Non- claims.
536.50 Determination of damages— Scope Claims Act. 536.122 Limitation of settlement of
applicable law. 536.92 Claims payable under the Non- maritime claims.
536.51 Collateral source rule. Scope Claims Act. 536.123 Limitation of liability for maritime
536.52 Subrogation. 536.93 Claims not payable under the Non- claims.
536.53 Evaluation of claims—general rules Scope Claims Act. 536.124 Settlement authority for maritime
and guidelines. 536.94 Settlement authority for claims claims.
536.54 Joint tortfeasors. under the Non-Scope Claims Act.
536.55 Structured settlements. 536.95 Reconsideration of Non-Scope Subpart I—Claims Cognizable Under Article
536.56 Negotiations—purpose and extent. Claims Act claims. 139, Uniform Code of Military Justice
536.57 Who should negotiate. 536.125 Statutory authority for Uniform
536.58 Settlement negotiations with Subpart F—Claims Cognizable Under the Code of Military Justice (UCMJ) claims.
unrepresented claimants. National Guard Claims Act 536.126 Purpose of UCMJ claims.
536.59 Settlement or approval authority. 536.96 Statutory authority for the National 536.127 Proper claimants; unknown
536.60 Splitting property damage and Guard Claims Act. accused—under the UCMJ.
personal injury claims. 536.97 Scope for claims under the National 536.128 Effect of disciplinary action,
536.61 Advance payments. Guard Claims Act. voluntary restitution, or contributory
536.62 Action memorandums. 536.98 Claims payable under the National negligence for claims under the UCMJ.
536.63 Settlement agreements. Guard Claims Act. 536.129 Claims cognizable as UCMJ claims.
536.64 Final offers. 536.99 Claims not payable under the 536.130 Claims not cognizable as UCMJ
536.65 Denial notice 536.66 The ‘‘Parker’’ National Guard Claims Act. claims.
denial. 536.100 Applicable law for claims under 536.131 Limitations on assessments arising
536.67 Mailing procedures. the National Guard Claims Act. from UCMJ claims.
536.68 Appeal or reconsideration. 536.101 Settlement authority for claims 536.132 Procedure for processing UCMJ
536.69 Retention of file. under the National Guard Claims Act. claims.
536.70 Preparation and forwarding of 536.102 Actions on appeal under the 536.133 Reconsideration of UCMJ claims .
payment vouchers. National Guard Claims Act. 536.134 Additional claims judge advocate
536.71 Fund sources. and claims attorney responsibilities (for
536.72 Finality of settlement. Subpart G—Claims Cognizable Under
UCMJ claims).
International Agreements
Subpart C—Claims Cognizable Under the 536.103 Statutory authority for claims Subpart J—Claims Cognizable Under the
Military Claims Act cognizable under international claims Foreign Claims Act
536.73 Statutory authority for the Military agreements. 536.135 Statutory authority for the Foreign
Claims Act. 536.104 Current agreements in force. Claims Act.
536.74 Scope for claims under the Military 536.105 Responsibilities generally/ 536.136 Scope for claims arising under the
Claims Act. international agreements claims. Foreign Claims Act.
536.75 Claims payable under the Military 536.106 Definitions for international 536.137 Claims payable under the Foreign
Claims Act. agreements claims. Claims Act.
536.138 Claims not payable under the affirmative claims are pursued against under the AMCSA are processed under
Foreign Claims Act. carriers, third-party insurers, and 10 U.S.C. 4803 and 4804 (see § 537.16
536.139 Applicable law for claims under tortfeasors. of this chapter).
the Foreign Claims Act.
(ix) Admiralty Extension Act (AEA),
536.140 Appointment and functions of § 536.2 Claims authorities.
Foreign Claims Commissions. 46 U.S.C. app. 740 (see Subpart H of this
536.141 Composition of Foreign Claims
(a) General. Claims cognizable under part).
Commissions. the following list of statutes and (x) Claims against nonappropriated
536.142 Qualification of members of authorities are processed and settled fund (NAF) activities and the risk
Foreign Claims Commissions. under DA Pam 27–162 and this part. All management program (RIMP) (see
536.143 Settlement authority of Foreign of these materials may be viewed on the Subpart K of this part), processed under
Claims Commissions. USARCS Web site, https:// Army Regulation (AR) 215–1 and AR
536.144 Reopening a claim after final action www.jagcnet.army.mil/
by a Foreign Claims Commission.
608–10.
85256F33005C2B92/(JAGCNETDocID)/ (xi) Claims by the U.S. Postal Service
536.145 Solatia payment.
HOME?OPENDOCUMENT. Select the for losses or shortages in postal accounts
Subpart K—Nonappropriated Fund Claims link ‘‘Claims Resources.’’ caused by unbonded Army personnel
536.146 Claims against nonappropriated (1) Tort Claims. (i) The Military (39 U.S.C. 411 and Department of
fund employees—generally. Claims Act (MCA), 10 United States Defense (DOD) Manual 4525.6-M).
536.147 Claims by NAFI employees for Code (U.S.C.) 2733 (see Subpart C of (2) Personnel Claims (subpart I of this
losses incident to employment. this part). The ‘‘incident-to-service’’ part and AR 27–20, chapter 11).
536.148 Claims generated by the acts or provision, applicable to both military
omissions of NAFI employees.
(i) The Personnel Claims Act (PCA),
536.149 Identification of persons whose and civilian personnel of the 31 U.S.C. 3721 (see AR 27–20, chapter
actions may generate liability. Department of Defense, is contained in 11).
536.150 Claims payable from appropriated the MCA. (ii) Redress of injuries to personal
funds. (ii) The Gonzales Act, 10 U.S.C. 1089. property, Uniform Code of Military
536.151 Settlement authority for claims This act permits individual suits against Justice (UCMJ), Article 139, 10 U.S.C.
generated by acts or omissions of NAFI health care providers for certain torts 939 (see Subpart I of this part).
employees. (see § 536.80). (3) Affirmative Claims (32 CFR part
536.152 Payment of claims generated by (iii) Certain suits arising out of legal 537).
acts or omissions of NAFI employees.
536.153 Claims involving tortfeasors other
malpractice, 10 U.S.C. 1054, discussed (i) The Federal Claims Collection Act
than nonappropriated fund employees: at § 536.81 and at DA Pam 27–162, (FCCA), 31 U.S.C. 3711–3720E.
NAFI contractors. paragraph 2–62f. (ii) The Federal Medical Care
536.154 Claims involving tortfeasors other (iv) The Federal Tort Claims Act Recovery Act (FMCRA), 42 U.S.C. 2651–
than nonappropriated fund employees: (FTCA), 28 U.S.C. 1291, 1402, 2401– 2653.
NAFI risk management program (RIMP) 2402, 2411–2412, and 2671–2680 (see (iii) Collection from third-party payers
claims. Subpart D of this part). The Westfall of reasonable costs of healthcare
536.155 Claims payable involving Act, 28 U.S.C. 2679, an integral part of services, 10 U.S.C. 1095 .
tortfeasors other than nonappropriated the FTCA, provides absolute immunity (b) Fund source authority for claims
fund employees.
from individual suit for common law under Title 10 statutes. 10 U.S.C. 2736,
536.156 Procedures for claims involving
tortfeasors other than nonappropriated torts for employees of the United States advance payments for certain property
fund employees. acting within the scope of their claims (see § 536.71).
536.157 Settlement/approval authority for employment. (c) Fund source authority for tort
claims involving tortfeasors other than (A) The legislative history of the claims paid by Financial Management
nonappropriated fund employees. FTCA. Service (FMS). 31 U.S.C. 1304, provides
Authority: 10 U.S.C. 2733; 10 U.S.C. 1089; (B) Regulations of the Attorney authority for judgments, awards and
10 U.S.C. 1054; 28 U.S.C. 1291, 2401–2402, General implementing the Federal Tort compromise settlements.
2411–2412, 2671–2680; 10 U.S.C. 2737; 32 Claims Act, 28 CFR part 14. (d) Additional authorities under Title
U.S.C. 715; 10 U.S.C. 2734a, 2734b; 10 U.S.C. (C) An Appendix to 28 CFR part 14 10.
2734;10 U.S.C. 4801, 4802, 4806; 46 U.S.C. sets forth certain delegations of (1) 10 U.S.C. 2735, establishes that
app. 740; 39 U.S.C. 411; 10 U.S.C. 939; 10 settlement authority to the Secretary of settlements (or ‘‘actions’’) under the
U.S.C. 2736; 10 U.S.C. 2735; 10 U.S.C. 2731. Veterans Affairs, the Postmaster Title 10 claims processing statutes are
General, the Secretary of Defense, the final and conclusive.
PART 536—CLAIMS AGAINST THE (2) 10 U.S.C. 2731, provides a
UNITED STATES Secretary of Transportation, and the
Secretary of Health and Human definition of the word ‘‘settle.’’
Subpart A—The Army Claims System Services. (e) Related remedies statutes. The
(v) The Non-Scope Claims Act Army frequently receives claims or
§ 536.1 Purpose of the Army Claims (NSCA), 10 U.S.C. 2737 (see Subpart E inquiries that are not cognizable under
System. of this part). the statutory and other authorities
This part sets forth policies and (vi) The National Guard Claims Act administered by the U.S. Army under
procedures that govern the (NGCA), 32 U.S.C. 715 (see Subpart F of this publication and DA Pam 27–162.
investigating, processing, and settling of this part). Every effort should be made to refer the
claims against, and in favor of, the (vii) Claims under International claim or inquiry to the proper authority
United States under the authority Agreements or the Foreign Claims Act. following the guidance in § 536.34 or
conferred by statutes, regulations, (A) International Agreements Claims § 536.36. (See also the corresponding
international and interagency Act (IACA), 10 U.S.C. 2734a and 2734b. paragraphs 2–15 and 2–17, respectively,
agreements, and Department of Defense (B) Foreign Claims Act (FCA), 10 in DA Pam 27–162). Some authorities
Directives (DODDs). It is intended to U.S.C. 2734 (see Subpart J of this part). for related remedies are used more
ensure that claims are investigated (viii) The Army Maritime Claims frequently than others. Where an
properly and adjudicated according to Settlement Act (AMCSA), 10 U.S.C. authority for a related remedy is
applicable law, and valid recoveries and 4801, 4802 and 4806. Affirmative claims frequently used, it is listed below and is
posted on the USARCS Web site (for the mailing address is: U.S. Army Claims COE commands or agencies as
address see § 536.2(a)). Service, 4411 Llewellyn Ave., Fort designated by the Commander USARCS,
(1) Tucker Act, 28 U.S.C. 1346, George G. Meade, MD 20755–5360, with concurrence of the Chief Counsel,
provides exclusive jurisdiction in the Commercial: (301) 677–7009. Office of the Chief of Engineers, for all
Court of Federal Claims over causes of (d) Command claims services. (1) claims generated within such districts,
actions alleging property loss caused by Command claims services exercise commands or agencies. The district
a Fifth Amendment ‘‘taking.’’ general supervisory authority over counsel or the attorney in charge of the
(2) Maritime authority statutes, Public claims matters arising within their command’s or agency’s legal office is
Vessels Act (PVA), 46 U.S.C. app. 781– assigned areas of operation. Command the head of the ACO.
790, Suits in Admiralty Act (SIAA), 46 claims services will: (f) Claims processing offices. Claims
U.S.C. app. 741–752, and the Rivers and (i) Effectively control and supervise processing offices (CPOs) are normally
Harbors Act, 33 U.S.C. 408 and 412. the investigation of potentially small legal offices or ACO subordinate
(3) Federal Employees Compensation compensable events (PCEs) occurring elements, designated by the Commander
Act (FECA), two excerpts: 5 U.S.C. 8116 within the command’s geographic area USARCS, a command claims service or
and 8140, providing guidance on of responsibility, in other areas for an ACO. These offices are established
personal injury and death claims by which the command is assigned claims for the investigation of all actual and
civilian employees arising within the responsibility, and during the course of potential claims arising within their
scope of their employment (see DA Pam the command’s operations. jurisdiction, on either an area, command
27–162, paragraph 2–15b) and (ii) Provide services for the processing or agency basis. There are four types of
information on certain claims by and settlement of claims for and against claims processing offices (see § 536.10):
Reserve Officers Training Corps (ROTC) the United States. (1) Claims processing offices without
cadets, respectively, (see DA Pam 27– (2) The Commander USARCS may approval authority.
162, paragraph 2–17d(2)). delegate authority to establish a (2) Claims processing offices with
(4) Longshore and Harbor Workers command claims service to the approval authority.
Compensation Act (LHWCA), 33 U.S.C. commander of a major overseas
(3) Medical claims processing offices.
901–950. command or other commands that
(4) Special claims processing offices.
(5) Claims for consequential property include areas outside the United States,
(g) Limitations on delegation of
damage by civilian employees may only its territories and possessions.
(i) When a large deployment occurs, authority under any subpart. (1) The
be considered in the Court of Federal
the Commander USARCS may designate Commander USARCS, commanders or
Claims pursuant to 28 U.S.C. 1491.
a command claims service for a limited chiefs of command claims services, or
(f) Additional materials. There are
time or purpose, such as for the the heads of ACOs or CPOs with
some additional authoritative materials
duration of an operation and for the approval authority may delegate, in
for the processing of claims, mostly of
time necessary to accomplish the writing, all or any portion of their
an administrative nature. For a complete
mission. The appropriate major Army monetary approval authority to
listing of all of the supplementary
command (MACOM) will assist the subordinate JAs or claims attorneys in
materials relevant to claims processing
Commander USARCS in obtaining their services or offices.
under this publication and DA Pam 27–
162 see Appendix B of DA Pam 27–162. resources and personnel for the mission. (2) The authority to act upon appeals
(g) Conflict of authorities. Where a (ii) In coordination with the or requests for reconsideration, to deny
conflict exists between a general Commander USARCS, the MACOM will claims (including disapprovals based on
provision of this publication and a designate the area of responsibility for substantial fraud), to grant waivers of
specific provision found in one of this each new command claims service. maximum amounts allowable, or to
publication’s subparts implementing a (3) A command claims service may be make final offers will not be delegated
specific statute, the specific provision, a separate organization with a except that the Commander USARCS
as set forth in the statute, will control. designated commander or chief. If it is may delegate this authority to USARCS
part of the command’s Office of the Staff Division Chiefs.
§ 536.3 Command and organizational Judge Advocate (SJA), the SJA will also (3) CPOs will provide copies of all
relationships. be the chief of the command claims delegations affecting them to the ACO
(a) The Secretary of the Army. The service, however, the SJA may designate and, if so directed, to command claims
Secretary of the Army (SA) heads the a field grade officer as chief of the services.
Army Claims System and acts on certain service.
claims appeals directly or through a § 536.4 Designation of claims attorneys.
(e) Area claims offices. The following
designee. may be designated as area claims offices (a) Who may designate. The
(b) The Judge Advocate General. The (ACOs): Commander USARCS, the senior JA of
SA has delegated authority to The Judge (1) An office under the supervision of a command having a command claims
Advocate General (TJAG) to assign areas the senior judge advocate (JA) of each service, the chief of a command claims
of responsibility and designate command or organization so designated service, the head of an ACO, or the
functional responsibility for claims by the Commander USARCS. The senior Chief Counsel of a COE District, may
purposes. TJAG has delegated authority JA is the head of the ACO. designate a qualified attorney other than
to the Commander USARCS to carry out (2) An office under supervision of the a JA as a claims attorney. The head of
the responsibilities assigned in § 536.7 senior JA of each command in the area an ACO may designate a claims attorney
and as otherwise lawfully delegable. of responsibility of a command claims to act as a CPO with approval authority.
(c) U.S. Army Claims Service. service so designated by the chief of that (b) Eligibility. To qualify as a claims
USARCS, a command and component of service after coordination with the attorney, an individual must be a
the Office of TJAG, is the agency Commander USARCS. The senior JA is civilian employee of the Department of
through which the SA and TJAG the head of the ACO. the Army (DA) or DOD, a member of the
discharge their responsibilities for the (3) The office of counsel of each U.S. bar of a state, the District of Columbia,
administrative settlement of claims Army Corps of Engineers (COE) district or a jurisdiction where U.S. federal law
worldwide (see AR 10–72). USARCS’ within the United States and such other applies, serving in the grade of GS–11
or above, and performing primary duties (g) Recommend action to be taken by carrying out their responsibilities as set
as a legal adviser. the SA, TJAG or the U.S. Attorney forth in §§ 536.8 and 536.9, including
General, as appropriate, on claims in claims assistance visits.
§ 536.5 The Judge Advocate General. excess of $25,000 or the threshold (s) Serve as proponent for the
TJAG has worldwide Army Staff amount then current under the FTCA, database management systems for torts,
responsibility for administrative on claims in excess of $100,000 or the personnel and affirmative claims and
settlement of claims by and against the threshold amount then current under provide standard automated claims data
U.S. government, generated by the FCA, the MCA, the NGCA, AMCSA, management programs for worldwide
employees of the U.S. Army and DOD FCCA and FMRCA and on other claims use.
components other than the Departments that have been appealed. Direct (t) Ensure proper training of claims
of the Navy and Air Force. Where the communication with Department of personnel.
Army has single-service responsibility, Justice (DOJ) and the SA’s designee is (u) Coordinate claims activities with
TJAG has responsibility for the Army. authorized. the Air Force, Navy, Marine Corps, and
See DODD 5515.9. Certain claims (h) Operate the ‘‘receiving State other DOD agencies to ensure a
responsibilities of TJAG are exercised by office’’ for claims arising in the United consistent and efficient joint service
The Assistant Judge Advocate General States, its territories, commonwealths claims program.
(TAJAG) as set forth in this part and and possessions cognizable under (v) Investigate, process and settle, and
directed by TJAG. Article VIII of the North Atlantic Treaty supervise the field office investigation
Organization (NATO) Status of Forces and processing of, medical malpractice
§ 536.6 The Army claims mission. claims arising in Army medical centers
Agreement (SOFA), Partnership for
(a) Promptly investigate potential Peace (PFP) SOFA, Article XVI of the within the United States; provide
claims incidents with a view to Singapore SOFA, and other SOFAs medical claims judge advocates
determining the degree of the Army’s which have reciprocal claims provisions (MCJAs), medical claims attorneys, and
exposure to liability, the damage as delegated by TJAG, as implemented medical claims investigators assigned to
potential, and when the third party is at by 10 U.S.C. 2734a and 2734b (Subpart such medical centers with technical
fault, whether the Army should take G of this part). guidance and direction on such claims.
action to collect for medical expenses, (i) Settle claims of the U.S. Postal (w) Coordinate support with the U.S.
lost wages and property damage. Service for reimbursement under 39 Army Medical Command (MEDCOM) on
(b) Efficiently and expeditiously U.S.C. 411 (see DOD Manual 4525.6–M). matters relating to medical malpractice
dispose of claims against the U.S. by (j) Settle claims against carriers, claims.
fairly settling meritorious claims at the warehouse firms, insurers, and other (x) Issue an accounting classification
lowest level within the claims system third parties for loss of, or damage to, to all properly designated claims
commensurate with monetary personal property of DA or DOD settlement and approval authorities.
jurisdiction delegated, or by denying soldiers or civilians incurred while the (y) Perform the investigation,
non-meritorious claims. goods are in storage or in transit at processing, and settlement of claims
(c) Develop a system that has a high government expense (AR 27–20, chapter arising in areas outside command
level of proficiency, so that litigation 11). claims service areas of operation.
and appeals can be avoided or kept to (k) Formulate and recommend (z) Maintain continuous worldwide
a minimum. legislation for Congressional enactment deployment and operational capability
of new statutes and the amendment of to furnish claims advice to any legal
§ 536.7 Responsibilities of the Commander office or command throughout the
USARCS. existing statutes considered essential for
the orderly and expeditious world. When authorized by the chain of
The Commander USARCS shall: administrative settlement of command or competent authority, issue
(a) Supervise and inspect claims noncontractual claims. such claims advice or services,
activities worldwide. (l) Perform post-settlement review of including establishing a claims system
(b) Formulate and implement claims claims. within a foreign country, interpreting
policies and uniform standards for (m) Prepare, justify, and defend claims aspects of international
claims office operations. estimates of budgetary requirements and agreements, and processing claims
(c) Investigate, process and settle administer the Army claims budget. arising from Army involvement in civil
claims beyond field office monetary (n) Maintain permanent records of disturbances, chemical accidents under
authority and consider appeals and claims for which TJAG is responsible. the Chemical Energy Stockpile Program,
requests for reconsideration on claims (o) Assist in developing disaster and other man-made or natural disasters,
denied by the field offices. maneuver claims plans designed to and other claims designated by
(d) Supervise the investigation, implement the responsibilities set forth competent authority.
processing, and settlement of claims in § 536.9(a)(12). (aa) Upon receiving both the
against, and in favor of, the United (p) Develop and maintain plans for a appropriate authority’s directive or
States under the statutes and regulations disaster or civil disturbance in those order and full fiscal authorization,
listed in § 536.2 and pursuant to other geographic areas that are not under the disburse the funds necessary to
appropriate statutes, regulations, and jurisdiction of an area claims authority administer civilian evacuation,
authorizations. and in which the Army has single- relocation, and similar initial response
(e) Designate ACOs, CPOs, and claims service responsibility or in which the efforts in response to a chemical disaster
attorneys within DA and DOD Army is likely to be the predominant arising at an Army facility.
components other than the Departments Armed Force. (bb) Respond to all inquiries from the
of the Navy and Air Force, subject to (q) Take initial action, as appropriate, President, members of Congress,
concurrence of the commander on claims arising in emergency military officials, and the general public
concerned. situations. on claims within USARCS’
(f) Designate continental United States (r) Provide assistance as available or responsibility.
(CONUS) geographic areas of claims take appropriate action to ensure that (cc) Serve as the proponent for this
responsibility. command claims services and ACOs are publication and DA Pam 27–162, both
of which set forth guidance on (6) Implement pertinent claims forth in this part and forward claims
personnel, tort, disaster and affirmative policies. exceeding such jurisdictions to the
claims, as well as claims management (7) Prepare and publish command Commander USARCS, or to the chief of
and administration. claims directives. a command claims service, as
(dd) Provide supervision for the (8) Administer the command claims appropriate, for action.
Army’s affirmative claims and carrier expenditure allowance, providing (5) Designate CPOs and request that
recovery programs, as well as other necessary data, estimates, and reports to the Commander USARCS, or the chief of
methods for recovering legal debts. USARCS on a regular basis. a command claims service, as
(ee) Provide support for the overseas (9) Perform the responsibilities of an appropriate, grant claims approval
environmental claims program as ACO (see § 536.9), as applicable, ensure authority to a CPO for claims that fall
designated by the DA. that SOFA claims are investigated within the jurisdiction of that office.
(ff) Execute other claims missions as properly and timely filed with the (6) Supervise the operations of CPOs
designated by DOD, DA, TJAG and other receiving State and adequately funded. within their area.
competent authority. (10) Serve as the United States (7) Implement claims policies and
(gg) Appoint Foreign Claims ‘‘sending State office,’’ if so designated, guidance furnished by the Commander
Commissions outside Command Claims when operating in an area covered by a USARCS.
Services’ geographic areas of SOFA. (8) Ensure that there are adequate
responsibility. (11) Supervise and provide technical numbers of qualified and adequately
(hh) Budget for and fund claims assistance to subordinate ACOs within trained CJAs or claims attorneys, RCJAs
investigations and activities; such as per the command claims service’s or attorneys, recovery claims clerks,
diem and transportation of claims geographic area of responsibility. claims examiners, claims adjudicators
personnel, claimants and witnesses; (12) Appoint FCCs. and claims clerks in all claims offices
independent medical examinations; (b) Operations of Command Claims within their areas to act promptly on
appraisals; independent expert Services. The SJA of the command shall claims.
opinions; long distance telephone calls; supervise the command claims service. (9) Budget for and fund claims
recording and photographic equipment; The command SJA may designate a field investigations and activities, such as:
use of express mail or couriers; and grade JA as the chief of the service. An Per diem and transportation of claims
other necessary expenses. adequate number of qualified claims personnel, claimants and witnesses;
personnel shall be assigned to ensure independent medical examinations;
§ 536.8 Responsibilities and operations of that claims are promptly investigated appraisals and independent expert
command claims services. opinions; long distance telephone calls;
and acted upon. With the concurrence
(a) Chiefs of command claims of the Commander USARCS, a recording and photographic equipment;
services. Chiefs of command claims command claims service may designate use of express mail or couriers; and
services shall: ACOs within its area of operations to other necessary expenses.
(1) Exercise claims settlement carry out claims responsibilities within (10) Within the United States and its
authority as specified in this part, specified geographic areas subject to territories, commonwealths and
including appellate authority where so agreement by the commander possessions, procure and disseminate,
delegated. concerned. within their areas of jurisdiction,
(2) Supervise the investigation, appropriate legal publications on state
processing, and settlement of claims § 536.9 Responsibilities and operations of or territorial law and precedent relating
against, and in favor of the United States area claims offices. to tort claims.
under the statutes and regulations listed (a) Heads of ACOs. Heads of ACOs, (11) Notify the Commander USARCS,
in § 536.2, and pursuant to other including COE offices (see § 536.3(e)(3)) of all claims and potentially
appropriate statutes, regulations, and shall: compensable events (PCEs) as required
authorizations. (1) Ensure that claims and potential by § 536.22(c); notify the chief of a
(3) Designate and grant claims claims incidents in their area of command claims service of all claims
settlement authority to ACOs. A grant of responsibility are promptly investigated and PCEs.
such authority will not be effective until in accordance with this part. (12) Develop and maintain written
coordinated with the Commander (2) Ensure that each organization or plans for a disaster or civil disturbance.
USARCS, and assigned an office code. activity (for example, U.S. Army These plans may be internal SJA office
However, the chief of a command Reserve (USAR) or Army National plans or an annex to an installation or
claims service may redesignate a CPO Guard of the United States (ARNGUS) an agency disaster response plan.
that already has an assigned office code unit, ROTC detachment, recruiting (13) Implement the Army’s Article
as an ACO without coordination with company or station, or DOD agency) 139 claims program. (See Subpart I of
the Commander USARCS. The within the area appoints a claims officer this part).
Commander USARCS, will be informed to investigate claims incidents not (14) Notify USARCS of possible
of such a designation. requiring investigation by a JA (see deployments and ensure adequate FCCs
(4) Designate and grant claims § 536.23) and ensure that this officer is are appointed by USARCS and are
approval authority to CPOs. Only CPOs adequately trained. trained.
staffed with a claims judge advocate (3) Supervise the investigation, (b) Operations of Area Claims Offices.
(CJA) or claims attorney may be granted processing, and settlement of claims (1) The ACO is the principal office for
approval authority. A grant of such against, and in favor of, the United the investigation and adjudication or
authority will not be effective until States under the statutes and regulations settlement of claims, and shall be staffed
coordinated with the Commander listed in § 536.2 and pursuant to other with qualified legal personnel under the
USARCS, and assigned an office code. appropriate statutes, regulations, and supervision of the SJA, command JA, or
(5) Train claims personnel and authorizations. COE district or command legal counsel.
monitor their operations and ongoing (4) Act as a claims settlement (2) In addition to the utilization of
claims administration. Conduct a authority on claims that fall within the unit claims officers required by
training course annually. appropriate monetary jurisdictions set § 536.10(a), if indicated, the full-time
responsibility for investigating and (6) Implement the Army’s Article 139 The existence of any special CPO must
processing claims arising within or claims program (see Subpart I of this be reported to the Commander USARCS,
related to the activities of a unit or part). and the chief of a command claims
organization located within a section of (b) Operations of claims processing service, as appropriate.
the designated area may be delegated to offices. (1) Claims processing office with (ii) Maneuver damage and claims
another command, unit, or activity by approval authority. A CPO that has been office jurisdiction. A special CPO is the
establishing a CPO at the command, granted approval authority must provide proper organization to process and
unit, or activity (see § 536.10(b)(4)). for the investigation of all potential and approve maneuver damage claims,
Normally, all CPOs will operate under actual claims arising within its assigned except when a foreign government is
the supervision of the ACO in whose jurisdiction, on an area, command, or responsible for adjudication pursuant to
area the CPO is located. Where a agency basis, and for the adjudication an international agreement (see Subpart
proposed CPO is not under the and payment of all claims presented G of this part). Personnel from the
command of the ACO parent within its monetary jurisdiction. If the maneuvering command should be used
organization, this designation may be estimated value of a claim, after to investigate claims and, at the ACO’s
achieved by a support agreement or investigation, exceeds the CPO’s discretion, may be assigned to the
memorandum of understanding between payment authority, or if disapproval is special CPO. The ACO will process
the affected commands. the appropriate action, the claim file claims filed after the maneuver
will be forwarded to the ACO unless terminates. The special CPO will
(3) Normally, claims that cannot be
otherwise specified in this part, or investigate claims arising while units
settled by a COE ACO will be forwarded
forwarded to USARCS or the command are traveling to or from the maneuver
directly to the Commander USARCS,
claims service, if directed by such within the jurisdiction of other ACOs,
with notice of referral to the Chief
service. and forward such claims for action to
Counsel, COE. However, as part of his (2) Claims processing offices without
or her responsibility for litigating suits the ACO in whose area the claims arose.
approval authority. A CPO that has not Claims for damage to real or personal
that involve civil works and military been granted claims approval authority
construction activities, the Chief property arising on private land that the
will provide for the investigation of all Army has used under a permit may be
Counsel, COE, may require that a COE potential and actual claims arising
ACO forward claims through COE paid from funds specifically budgeted
within its assigned jurisdiction on an
channels, provided that such by the maneuver for such purposes in
area, command, or agency basis. Once
requirement does not preclude the accordance with AR 405–15.
the investigation has been completed,
Commander USARCS from taking final (iii) Disaster claims and civil
the claim file will be forwarded to the
action within the time limitations set disturbance. A special CPO provided for
appropriate ACO for action.
forth in subparts D and H of this part. Alternatively, an ACO may direct the a disaster or civil disturbance should
transfer of a claim investigation from a include a claims approving authority
§ 536.10 Responsibilities and operations with adequate investigatory,
of claims processing offices. CPO without approval authority to
another CPO with approval authority, administrative, and logistical support,
(a) Heads of CPOs. Heads of CPOs located within the ACO’s jurisdiction. including damage assessment and
will: (3) Medical claims processing offices. finance and accounting support. It will
(1) Investigate all potential and actual The MCJAs or medical claims attorneys not be dispatched prior to notification of
claims arising within their assigned at Army medical centers, other than the Commander USARCS, whose
jurisdiction, on either an area, Walter Reed Army Medical Center, may concurrence must be obtained before the
command, or agency basis. Only a CPO be designated by the SJA or head of the first claim is paid.
that has approval authority may ACO for the installation on which the (5) Supervisory requirements. The
adjudicate and pay presented claims center is located as CPOs with approval CPOs discussed in paragraphs (b)(2)
within its monetary jurisdiction. authority for medical malpractice claims through (b)(4) of this section must be
(2) Ensure that units and only. Claims for amounts exceeding a supervised by an assigned CJA or claims
organizations within their jurisdiction medical CPO’s approval authority will attorney in order to exercise delegated
have appointed claims officers for the be investigated and forwarded to the approval authority.
investigation of claims not requiring a Commander USARCS. § 536.11 Chief of Engineers.
JA’s investigation. (See § 536.22). (4) Special claims processing offices.
(i) Designation and authority. The The Chief of Engineers, through the
(3) Budget for and fund claims Commander USARCS, the chief of a Chief Counsel, shall:
investigations and activities; including, command claims service, or the head of (a) Provide general supervision of the
per diem and transportation of claims an ACO may designate special CPOs claims activities of COE ACOs.
personnel, claimants and witnesses; within his or her command for specific, (b) Ensure that each COE ACO has a
independent medical examinations; short-term purposes (for example, claims attorney designated in
appraisals; independent expert maneuvers, civil disturbances and accordance with § 536.4.
opinions; long distance telephone calls; emergencies). These special CPOs may (c) Ensure that claims personnel are
recording and photographic equipment; be delegated the approval authority adequately trained, and monitor their
use of express mail or couriers; and necessary to effect the purpose of their ongoing claims administration.
other necessary expenses. creation, but in no case will this (d) Implement pertinent claims
(4) Within CONUS, procure and delegation exceed the maximum policies.
maintain legal publications on local law monetary approval authority set forth in (e) Provide for sufficient funding in
relating to tort claims pertaining to their other subparts of this part for regular accordance with existing Army
jurisdiction. CPOs. All claims will be processed regulations and command directives for
(5) Notify the Commander USARCS of under the claims expenditure allowance temporary duty (TDY), long distance
all claims and claims incidents, as and claims command and office code of telephone calls, recording equipment,
required by § 536.22 and AR 27–20, the authority that established the office cameras, and other expenses for
paragraph 2–12. or under a code assigned by USARCS. investigating and processing claims.
(f) Procure and maintain adequate responsibilities assigned in §§ 536.9 and solely to avoid further processing time
legal publications on local law relating 536.10. and expense. All claims, regardless of
to claims arising within the United (b) Assist claims personnel in amount, should be evaluated. Congress
States, its territories, commonwealths obtaining qualified expert and technical imposed no minimum limit on payable
and possessions. advice from command units and claims nor did it intend that small non-
(g) Assist USARCS in evaluation of organizations on a nonreimbursable meritous claims be paid. Practically any
claims by furnishing qualified expert basis (although the requesting office claim, regardless of amount, may be
and technical advice from COE may be required to provide TDY subject to compromise through direct
resources, on a non-reimbursable basis funding). negotiation. A CJA or claims attorney
except for temporary duty (TDY) and (c) Assist TJAG, through the should develop expertise in assessing
specialized lab services expenses. Commander USARCS, in implementing liability and damages, including small
the functions set forth in § 536.7. property damage claims. For example, a
§ 536.12 Commanding General, U.S. Army (d) Coordinate with the ACO within property damage claim may be
Medical Command. whose jurisdiction a maneuver is compromised by deducting the cost of
(a) After consulting with the scheduled, to ensure the prompt collection, i.e., attorney fees and costs,
Commander USARCS on the selection investigation and settlement of any even where liability is certain.
of medical claims attorneys, the claims arising from it. (4) Expeditious processing at the
Commander of the U.S. Army lowest level. Claims investigation and
MEDCOM, the European Medical § 536.15 Claims policies.
adjudication should be accomplished at
Command, or other regional medical (a) General. The following policies the lowest possible level, such as the
command, through his or her SJA/ will be adhered to in processing and CPO or ACO that has monetary
Center Judge Advocate, shall ensure that adjudicating claims falling within this authority over the estimated total value
an adequate number of qualified MCJAs regulation. The Commander USARCS is of all claims arising from the incident.
or medical claims attorneys and medical authorized to publish new policies or The expeditious investigation and
claims investigators are assigned to rescind existing policies from time to settlement of claims is essential to
investigate and process medical time as the need arises. successfully fulfilling the Army’s
malpractice claims arising at Army (1) Notification. The Commander responsibilities under the claims
medical centers under the Commander’s USARCS must be notified as soon as statutes implemented by this part.
control. In accordance with an possible of both potential and actual (5) Notice to claimants of technical
agreement between TJAG and The claims which are serious incidents that errors in claim. When technical errors
Surgeon General, such personnel shall cannot be settled within the monetary are found in a claim’s filing or contents,
be used primarily to investigate and jurisdiction of a Command Claims claimants should be advised of such
process medical malpractice claims and Service or an ACO, including those errors and the need to correct the claim.
affirmative claims and will be provided which occur in the area of responsibility If the errors concern a jurisdictional
with the necessary funding and research of a CPO. On such claims, the USARCS matter, a record should be maintained
materials to carry out this function. Area Action Officer (AAO) must and the claimant should be immediately
(b) Upon request of a claims judge coordinate with the field office as to all warned that the error must be corrected
advocate or claims officer, shall provide aspects of the investigation, evaluation before the statute of limitations (SOL)
a qualified health care provider at a and determination of liability. An offer expires.
medical treatment facility (MTF) to of settlement or the assertion of an (b) Cooperative investigative
examine a claimant for his injuries even affirmative claim must be the result of environment. Any person who indicates
if the claimant is not otherwise entitled a discussion between the AAO and the a desire to file a claim against the
to care at an MTF (See AR 40–400, field office. Payment of a subrogated United States cognizable under one of
Patient Administration, paragraph 3– claim may commit the United States to the subparts of this part will be
47). liability as to larger claims. On the other instructed concerning the procedure to
hand, where all claims out of an follow. The claimant will be furnished
§ 536.13 Chief, National Guard Bureau. incident can be paid within field claim forms and, when necessary,
The Chief, National Guard Bureau authority they should be paid promptly assisted in completing claim forms, and
(NGB), shall: with maximum use of small claims may be assisted in assembling evidence.
(a) Ensure the designation of a point procedures. Claims personnel may not assist any
of contact for claims matters in each (2) Consideration under all subparts. claimant in determining what amount to
State Adjutant General’s office. Prior to denial, a claim will be claim. During claims investigation,
(b) Provide the name, address, and considered under all subparts of this every effort should be made to create a
telephone number of these points of part, regardless of the form on which the cooperative environment that engenders
contact to the Commander USARCS. claim is presented. A claim presented as the free exchange of information and
(c) Designate claims officers to a personnel claim will be considered as evidence. The goal of obtaining
investigate claims generated by ARNG a tort prior to denial. A claim presented sufficient information to make an
personnel and forward investigations to as a tort will first be considered as a objective and fair analysis should be
the Active Army ACO that has personnel claim, and if not payable, paramount. Personal contact with
jurisdiction over the area in which the then considered as a tort. If deniable, claimants or their representatives is
claims incident occurred. the claim will be denied both as a essential both during investigation and
personnel claim and as a tort. before adjudication. When settlement is
§ 536.14 Commanders of major Army (3) Compromise. DA policy seeks to not feasible, issues in dispute should be
commands. compromise claims in a manner that clearly identified to facilitate resolution

Commanders of MACOMs, through represents a fair and equitable result to of any reconsideration, appeal or
their SJAs, shall: both the claimant and the United States. litigation.
(a) Assist USARCS in monitoring This policy does not extend to frivolous (c) Claims directives and plans. (1)
ACOs and CPOs under their respective claims or claims lacking factual or legal Directives. Two copies of command
commands for compliance with the merit. A claim should not be settled claims directives will be furnished to
the Commander USARCS. ACO Freedom of Information Act (FOIA), 5 (5 U.S.C. 552 (b)) unless requested by
directives will be distributed to all DA U.S.C. 552 and the Health Insurance the subject of the record.
and DOD commands, installations and Portability and Accountability Act (iii) Records protected by the Privacy
activities within the ACO’s area of (HIPAA), 42 U.S.C. 1320d through Act.
responsibility, with an information copy 1320d–8. (iv) Records exempt from disclosure
to the Commander USARCS. (2) It is the policy of USARCS that pursuant to FOIA exemption (1)
(2) Disaster and civil preparedness unclassified attorney work product may (National security) (5 U.S.C. 552(b)),
plan. One copy of all ACOs’ disaster or be released with or without a request unless such records have been properly
civil disturbance plans or annexes will from the claimant or attorney, whenever declassified.
be furnished to the Commander such release may help settle the claim (v) Records exempt from disclosure
USARCS. or avoid unnecessary litigation. pursuant to the attorney-client privilege
(d) Interpretations. The Commander (3) A statutory exemption or privilege
under FOIA exemption (5) (5 U.S.C.
USARCS will publish written may not be waived. Similarly,
552(b)), unless the client consents to the
interpretations of this part. documents subject to such statutorily
disclosure.
Interpretations will have the same force required nondisclosure, exemption, or
privilege may not be released. Regarding (6) Records within a category for
and effect as this part.
(e) Authority to grant exceptions to other exemptions and privileges, which withholding of the record is
and deviations from this part. If, in authorities may waive such exemptions discretionary (AR 25–55, paragraph 3–
particular instances, it is considered to or privileges and direct release of the 101), such as exemptions under the
be in the best interests of the protected documents, upon balancing deliberative process or attorney work
government, the Commander USARCS all pertinent factors, including finding product privileges (exemption (5) (5
may authorize deviations from this that release of protected records will not U.S.C. 552(b)) may be released when
part’s specific requirements, except as to harm the government’s interest, will there is no foreseeable harm to
matters based on statutes, treaties and promote settlement of a claim and will government interests in the judgment of
international agreements, executive avoid unnecessary litigation, or for other the releasing authority.
orders, controlling directives of the good cause. (7) When it is determined that exempt
Attorney General or Comptroller (4) All requests for records and information should not be released, or a
General, or other publications that have information made pursuant to the FOIA, question as to its releaseability exists,
the force and effect of law. 5 U.S.C. 552, the Privacy Act of 1974, forward the request and two copies of
(f) Guidance. The Commander 5 U.S.C. 552a, or HIPAA, 42 U.S.C. the responsive documents to the
USARCS, may publish bulletins, 1320d, will be processed in accordance Commander USARCS. The Commander
manuals, handbooks and notes, and a with the procedures set forth in AR 25– USARCS, acting on behalf of TJAG (the
DA Pamphlet that provides guidance to 55 and AR 340–21, respectively as well initial denial authority), may deny
claims authorities on administrative and as 45 CFR parts 160 and 164, DODD release of records processed under the
procedural rules implementing this part. 6025.18–R, this part, and DA Pam 27– FOIA only. The Commander USARCS,
These will be binding on all Army 162. will forward to TJAG all such requests
claims personnel. (i) Any request for DOD records that processed under both the FOIA and PA.
(g) Communication. All claims either explicitly or implicitly cites the TJAG is the denial authority for Privacy
personnel are authorized to FOIA shall be processed under the Act requests (AR 340–21, paragraph 1–
communicate directly with USARCS provisions of AR 25–55. Requests for 7i).
personnel for guidance on matters of DOD records submitted by a claimant or (c) Claims assistance. In the vicinity
policy or on matters relating to the claimant’s attorney will be processed of a field exercise, maneuver or disaster,
implementation of this part. under both the FOIA and under the claims personnel may disseminate
(h) Private relief bills. The issue of a Privacy Act when the request is made information on the right to present
private relief bill is one between a by the subject of the records requested claims, procedures to be followed, and
claimant and his or her Congressional and those records are maintained in a the names and location of claims
representative. There is no established system of records. Such requests will be officers and the COE repair teams. When
procedure under which the DA sponsors processed under the FOIA time limits the government of a foreign country in
private relief legislation. Claims and the Privacy Act fee provisions. which U.S. Armed Forces are stationed
personnel shall remain neutral in all Withheld information must be exempt has assumed responsibility for the
private relief matters and shall not make from disclosure under both Acts. settlement of certain claims against the
any statement that purports to reflect (ii) Requests that cite both Acts or United States, officials of that country
the DA’s position on a private relief bill. neither Act are processed under both will be furnished as much pertinent
Acts, using the FOIA time limits and the information and evidence as security
§ 536.16 Release of information policies. Privacy Act fee provisions. For further considerations permit.
(a) Conflict of interest. Except as part guidance, see AR 25–55, paragraphs 1–
of their official duties, government 301 and 1–503. § 536.17 Single-service claims
personnel are forbidden from advising (5) The following records may not be responsibility (DODD 5515.8 and DODD
5515.9).
or representing claimants or from disclosed:
receiving any payment or gratuity for (i) Medical quality assurance records (a) Assignment for DOD claims. The
services rendered. They may not accept exempt from disclosure pursuant to 10 Army is responsible for processing DOD
any share or interest in a claim or assist U.S.C. 1102(a). claims pursuant to DODD 5515.9
in its presentation, under penalty of (ii) Records exempt from disclosure (posted on the USARCS Web site; for
federal criminal law (18 U.S.C. 203 and pursuant to appropriate balancing tests the address see § 536.2(a)).
205). under FOIA exemption (6) (clearly (b) Statutes and agreements. DOD has
(b) Release of information. (1) unwarranted invasion of personal assigned single-service responsibility for
Relevant statutes pertinent to the release privacy), exemption (7)(c) (reasonably the settlement of certain claims in
of information include the Privacy Act constitutes unwarranted invasion of certain countries, pursuant to DODD
of 1974, 5 U.S.C. 552a and 552b, the privacy), and law enforcement records 5515.8 (posted on the USARCS Web
site; for the address see § 536.2(a)) under service of the U.S. Department of Army Claims Service (USARCS),
the following statutes and agreements: Homeland Security may upon request command claims services, and area
(1) FCA (10 U.S.C. 2734); be settled under this part by a foreign claims offices (ACOs) including U.S.
(2) MCA (10 U.S.C. 2733); claims commission appointed as Army Corps of Engineers (COE) District
(3) Status of Forces Agreements (10 authorized herein, but they will be paid Offices, claims processing offices
U.S.C. 2734a and 2734b); from Coast Guard appropriations, 10 (CPOs), and unit claims officers.
(4) NATO SOFA (4 U.S.T. 1792, U.S.C. 2734. Essential to this effort is the immediate
Treaties and International Acts Series (c) SOFA claims within the United investigation of claims incidents.
(T.I.A.S.) 2846) and other similar States. Claims cognizable under the Prompt investigation depends on the
agreements; NATO PFP or Singaporean SOFAs timely reporting of claims incidents as
(5) FCCA (31 U.S.C. 3711–3720E) and arising out of the activities of aircraft well as continuous communication
FMCRCA (42 U.S.C. 2651–2653); within the United States may be between all commands or echelons
(6) Claims not cognizable under any investigated and adjudicated by the U.S. bearing claims responsibility.
other provision of law, 10 U.S.C. 2737; Air Force under a delegation from the (c) Notification to USARCS. A CPO or
and Commander USARCS. Claims exceeding an ACO receiving notice of a potentially
(7) Advance payments, 10 U.S.C. the delegated amount will be compensable event (PCE) that requires
2736. adjudicated by the USARCS. investigation will immediately refer it to
(c) Specified foreign countries. (d) Claims generated by the American the appropriate claims office. The
Responsibility for the settlement of Battle Monuments Commission. Claims Commander USARCS will be notified of
claims cognizable under the laws listed arising out of the activities of or in all major incidents involving serious
above has been assigned to military cemeteries outside the United States injury or death or those in which
departments pursuant to DODD 5515.8, managed by the American Battle property damage exceeds $50,000. A
as supplemented by executive Monuments Commission (36 U.S.C. command claims service may delegate
agreement and other competent 2110) will be investigated and to an ACO the responsibility for
directives. adjudicated by the U.S. Army. advising USARCS of serious incidents
(d) When claims responsibility has not and complying with mirror file
been assigned. When necessary to Note to § 536.18: See also § 536.32 for
information on transferring claims among requirements. A copy of the written
implement contingency plans, the armed services branches. delegation and any changes made
unified or specified commander with thereafter will be forwarded to the
authority over the geographic area in § 536.19 Disaster claims planning. Commander USARCS.
question may, on an interim basis before (d) Geographic concept of
receiving confirmation and approval All ACOs will prepare a disaster
claims plan and furnish a copy to responsibility. A command claims
from the General Counsel, DOD, assign service or an ACO in whose geographic
single-service responsibility for USARCS. See DA Pam 27–162,
paragraph 1–21 for specific area a claims incident occurs is
processing claims in countries where primarily responsible for initiating
such assignment has not already been requirements related to disaster claims
planning. investigation and processing of any
made. claim filed in the absence of a formal
Note to § 536.17: See also § 536.32 for § 536.20 Claims assistance visits. transfer of responsibility (see §§ 536.30
information on transferring claims among Members of USARCS and command through 536.36). DOD and Army
armed services branches. claims services will make claims organizations whose personnel are
assistance visits to field offices on a involved in the incident will cooperate
§ 536.18 Cross-servicing of claims. periodic basis. See DA Pam 27–162, with and assist the ACO, regardless of
(a) Where claims responsibility has paragraph 1–22 for specific where the former may be located.
not been assigned. Claims cognizable requirements related to claims Note to § 536.22: See the parallel
under the FCA or the MCA that are assistance visits. discussion at DA Pam 27–162, paragraph 2–
generated by another military § 536.21 Annual claims award.
1.
department within a foreign country for
which single-service claims The Commander USARCS will make § 536.23 Identifying claims incidents both
responsibility has not been assigned, an annual claims award to outstanding for and against the government.
may be settled by the Army upon field offices. See DA Pam 27–162, para
(a) Investigation is required when:
request of the military department 1–23 for more information on annual
(1) There is property loss or damage.
concerned. Conversely, Army claims claims awards.
(i) Property other than that belonging
may in appropriate cases be referred to Subpart B—Investigation and to the government is damaged, lost, or
another military department for Processing of Claims destroyed by an act or omission of a
settlement, DODD 5515.8, E1.2 (posted government employee or a member of
on the USARCS Web site; for the § 536.22 Claims investigative North Atlantic Treaty Association
address see § 536.2(a)). Tables listing responsibility—general. (NATO), Australian or Singaporean
claims offices worldwide are posted to (a) Scope. This subpart addresses the forces stationed or on temporary duty
the USARCS Web site at that address. investigation, processing, evaluation, within the United States.
U.S. Air Force claims offices may be and settlement of tort and tort-related (ii) Property belonging to the
identified by visiting the Web site at claims for and against the United States. government is damaged or lost by a
http://afmove.hq.af.mil/ The provisions of this subpart do not tortious act or omission not covered by
page_afclaims.asp. apply to personnel claims (AR 27–20, the report of survey system or by a
(b) Claims generated by the Coast chapter 11), or to claims under subpart carrier’s bill of lading.
Guard. Claims resulting from the G of this part, §§ 536.113 through (2) There is personal injury or death.
activities of, or generated by, Coast 536.116. (i) A civilian other than an employee
Guardsmen or civilian employees of the (b) Cooperation. Claims investigation of the U.S. government is injured or
Coast Guard while it is operating as a requires team effort between the U.S. killed by an act or omission of a
government employee or by a member training or duty under 32 U.S.C. 316, Stat. 755)), unless performing duties
of a NATO, Australian or Singaporean 502, 503, 504, 505, or engaged in solely in pursuit of a mission for a state,
force stationed or on temporary duty properly authorized community action commonwealth, territory or possession.
within the United States. (This category projects under the Federal Tort Claims (9) Persons acting in an official
includes patients injured during Act (FTCA), the Non-Scope Claims Act capacity for the DOD or DA either
treatment by a health care provider). (NSCA), or the National Guard Claims temporarily or permanently with or
(ii) Service members, active or retired, Act (NGCA), unless performing duties without compensation, including but
family members of either, or U.S. in furtherance of a mission for a state, not limited to the following:
employees, are injured or killed by a commonwealth, territory or possession. (i) Dollar-a-year personnel.
third party and receive medical care at (4) Civilian officials and employees of (ii) Members of advisory committees,
government expense. both the DOD and DA (there is no commissions, or boards.
(3) A claim is filed. practical significance to the distinction (iii) Volunteers serving in an official
(4) A competent authority or another between the terms ‘‘official’’ and capacity in furtherance of the business
armed service or federal agency requires ‘‘employee’’), including but not limited of the United States, limited to those
investigation. to the following: categories set forth in DA Pam 27–162,
(b) Determining who is a government (i) Civil service and other full-time paragraph 2–45.
employee is a matter of federal, not employees of both the DOD and DA who Note to § 536.23: See the parallel
local, law. Categories of government are paid from appropriated funds. discussion at DA Pam 27–162, paragraph 2–
employees usually accepted as (ii) Persons providing direct health 2.
tortfeasors under federal law are: care services pursuant to personal
(1) Military personnel (soldiers of the service contracts under 10 U.S.C. 1089 § 536.24 Delegation of investigative
Army, or members of other services or 1091 or where another person responsibility.
where the Army exercises single-service exercised control over the health care (a) Area Claims Office. An ACO is
jurisdiction on foreign soil; and soldiers provider’s day-to-day practice. When authorized to carry out its investigative
or employees within the United States the conduct of a health care provider responsibility as follows:
who are members of NATO or of other performing services under a personal (1) At the request of the area claims
foreign military forces with whom the service contract is implicated in a claim, authority, commanders and heads of
United States has a reciprocal claims the CJA, Medical Claims Judge Advocate Army and DOD units, activities, or
agreement and whose sending States (MCJA), or claims attorney should components will appoint a
have certified that they were acting consult with USARCS to determine if commissioned, warrant, or
within the scope of their duty) who are that health care provider can be noncommissioned officer or a qualified
serving on full-time active duty in a pay considered an employee for purposes of civilian employee to investigate a claims
status, including soldiers: coverage. incident in the manner set forth in DA
(i) Assigned to units performing active (iii) Employees of a NAF Pam 27–162 and this part. An ACO will
or inactive duty. instrumentality (NAFI) if it is an direct such investigation to the extent
(ii) Serving on active duty as Reserve instrumentality of the United States and deemed necessary.
Officer Training Corps (ROTC) thus a federal agency. To determine (2) CPOs are responsible for
instructors. whether a NAFI is a ‘‘federal agency,’’ investigating claims incidents arising
(iii) Serving as Army National Guard consider both whether it is an integral out of the activities and operations of
(ARNG) instructors or advisors. part of the Army charged with an their command or agency. An ACO may
(iv) On duty or training with other essential DA operational function and assign area jurisdiction to a CPO after
federal agencies, for example: The also what degree of control and coordination with the appropriate
National Aeronautics and Space supervision DA personnel exercise over commander to investigate claims
Administration, the Department of it. Members or users, unlike employees incidents arising in the ACO’s
State, the Navy, the Air Force, or DOD of NAFIs, are not considered designated geographic area. (See
(federal agencies other than the armed government employees; the same is true § 536.3(f)).
service to which the Soldier is attached of family child care providers. However, (3) Claims incidents involving
may also provide a remedy). claims arising out of the use of some patients arising from treatment by a
(v) Assigned as students or ordered NAFI property or from the acts or health care provider in an Army
into training at a non-federal civilian omissions of family child care providers medical treatment facility (MTF),
educational institution, hospital, may be payable from such funds under including providers defined in
factory, or other facility (excluding subpart K of this part as a matter of 536.23(b)(4)(ii), will be investigated by a
soldiers on excess leave or those for policy, even when the user is not acting claims judge advocate (CJA), medical
whom the training institution or within the scope of employment and the claims judge advocate (MCJA), or claims
organization has assumed liability by claim is not otherwise cognizable under attorney rather than by a unit claims
written agreement). any of the other authorities described in officer.
(vi) Serving on full-time duty at this part. (4) An ACO will publish and
nonappropriated fund (NAF) activities. (5) Prisoners of war and interned distribute a claims directive to all DOD
(vii) Of the United States Army enemy aliens. and Army installations and activities
Reserve (USAR) and ARNG on active (6) Civilian employees of the District including active, Army Reserve, and
duty under Title 10, U.S.C. of Columbia ARNG, including those ARNG units as well as units located on
(2) Military personnel who are United paid under ‘‘service contracts’’ from the post at which the ACO is located.
States Army Reserve soldiers including District of Columbia funds. The directive will outline each
ROTC cadets who are Army Reserve (7) Civilians serving as ROTC installation’s and activity’s claims
soldiers while at annual training, during instructors paid from Federal funds. responsibilities. It will institute a
periods of active duty and inactive duty (8) ARNG technicians employed serious claims incident reporting
training. under 32 U.S.C. 709(a) for claims system.
(3) Military personnel who are accruing on or after January 1, 1969 (b) Command claims service
soldiers of the ARNG while engaged in (Pub. L. 90–486, August 13, 1968 (82 responsibility. A command claims
service is responsible for the may be presented orally to either the in the owner’s name. As used in this
investigation and processing of claims United States or the government of the part, the term ‘‘owner’’ includes the
incidents arising in its geographic area foreign country in which the incident following:
of responsibility or for any incidents occurred, within two years, provided (1) For real property. The mortgagor,
within the authority of any foreign that it is reduced to writing not later mortgagee, executor, administrator, or
claims commission (FCC) it appoints. than three years from the date of personal representative, if he or she may
This responsibility will be carried out accrual. A claim may be transmitted by maintain a cause of action in the local
by an ACO or a CPO to the extent facsimile or telegram. However, a copy courts involving a tort to the specific
possible. A command claims service of an original claim must be submitted property, is a proper claimant. When
will publish a claims directive outlining as soon as possible. notice of divided interests in real
the geographic areas of claims (b) Where a claim is only for property property is received, the claim should if
investigative responsibilities of each of damage and it is filed under feasible be treated as a single claim and
its installations and activities, requiring circumstances where there might be a release from all interests must be
each ACO or CPO to report all serious injuries, the CJA should inquire if the obtained. This includes both the owner
claims incidents directly to the claimant desires to split the claim as and tenant where both claim.
Commander USARCS. discussed in § 536.60. (2) For personal property. A claim
(c) USARCS responsibility. USARCS (c) Normally, a claim will be may be presented by a bailee, lessee,
exercises technical supervision over all presented on a Standard Form (SF) 95 mortgagee, conditional vendor, or others
claims offices, providing guidance on (Claim for Damage, Injury, or Death). holding title for purposes of security
specific cases throughout the claims When the claim is not presented on an only, unless specifically prohibited by
process, including the method of SF 95, the claimant will be requested to the applicable subpart. When notice of
investigation. Where indicated, complete an SF 95 to ease investigation divided interests in personal property is
USARCS may investigate a claims and processing. received, the claim should if feasible be
incident that normally falls within a (d) If a claim names two claimants treated as a single claim; a release from
command claims service’s, an ACO’s, or and states only one sum certain, the all interests must be obtained. Property
a CPO’s jurisdiction. USARCS typically claimants will be requested to furnish a loss is defined as loss of actual tangible
acts through an area action officer sum certain for each. A separate sum property, not consequential damage
(AAO) who is assigned as the primary certain must be obtained prior to resulting from such loss.
point of contact with command claims payment under the Federal Tort Claims (b) Claims for personal injury or
services, ACOs or CPOs within a given Act (FTCA), Military Claims Act (MCA), wrongful death. (1) For personal injury.
geographic area. In areas outside the National Guard Claims Act (NGCA) or A claim may be presented by the injured
United States and its commonwealths, the FCA. The Financial Management person or by a duly authorized agent or
territories and possessions, where there Service will only pay an amount above legal representative or, where the
is no command claims service or ACO, the threshold amount of $2,500 for the claimant is a minor, by a parent or a
USARCS is responsible for investigation person in loco parentis. However,
FTCA, or $100,000 for the other statutes.
and for appointment of FCCs. (e) A properly filed claim meeting the determine whether the claimant is a
Note to § 536.24: See the parallel definition of ‘‘claim’’ in paragraph (a) of proper claimant under applicable state
discussion at DA Pam 27–162, paragraph 2– law or, if considered under the MCA,
this section tolls the two-year statute of
3. under § 536.77. If not, the claimant
limitations (SOL) even though the
should be so informed in the
documents required to substantiate the
§ 536.25 Procedures for accepting claims. acknowledgment letter and requested to
claim are not present, such as those
All ACOs and CPOs will institute withdraw the claim. If not withdrawn,
listed on the back of an SF 95 or in the
procedures to ensure that potential deny the claim without delay. An
Attorney General’s regulations
claimants or attorneys speak to a CJA, example is a claim filed on behalf of a
implementing the FTCA, 28 CFR 14.1–
claims attorney, investigator, or minor for loss of consortium for injury
14.11. However, refusal to provide such
examiner. On initial contact, claims to a parent where not permitted by state
documents may lead to dismissal of a
personnel will render assistance, law. Personal injury claims deriving
subsequent suit under the FTCA or from the principal injury may be
discuss all aspects of the potential denial of a claim under other subparts
claim, and determine what statutes or presented by other parties. A claim may
of this part. not be presented by a ‘‘volunteer,’’
procedures apply. Assistance will be (f) Receipt of a claim by another
furnished to the extent set forth in DA meaning one who has no legal or
federal agency does not toll the SOL. contractual obligation, yet voluntarily
Pam 27–162, paragraph 2–4. To advise Receipt of a U.S. Army claim by DOD,
claimants on the correct remedy, claims pays damages on behalf of an injured
Navy, or Air Force does toll the SOL. party and then seeks reimbursement for
personnel will familiarize themselves (g) The guidelines set forth in federal
with the remedies listed in DA Pam 27– their economic damages by filing a
FTCA case law will apply to other claim. See paragraph (f)(3) of this
162, paragraphs 2–15 and 2–17. subparts of this part in determining section.
§ 536.26 Identification of a proper claim. whether a proper claim was filed. (2) For wrongful death. A claim may
(a) A claim is a writing that contains Note to § 536.26: See the parallel be presented by the executor or
a sum certain for each claimant and that discussion at DA Pam 27–162, paragraph administrator of the deceased’s estate, or
is signed by each claimant, or by an 2–5. by any person determined to be legally
authorized representative, who must or beneficially entitled under applicable
furnish written authority to sign on a § 536.27 Identification of a proper local law. The amount allowed will be
claimant’s behalf. The writing must claimant. apportioned, to the extent practicable,
contain enough information to permit The following are proper claimants: among the beneficiaries in accordance
investigation. The writing must be (a) Claims for property loss or with the law applicable to the incident.
received not later than two years from damage. A claim may be presented by Under the MCA (subpart C of this part),
the date the claim accrues. A claim the owner of the property or by a duly only one wrongful death claim is
under the Foreign Claims Act (FCA) authorized agent or legal representative authorized (see § 536.77(c)(1)(i)). Under
subparts D and H of this part, a claim (i) Every purported transfer or entity is not a proper claimant for loss
by the insured for property damage may assignment of a claim against the United or damage to its property. A unit of local
be considered as a claim by the insurer States, or any interest, in whole or in government other than a state,
as the real party in interest provided the part, on a claim, whether absolute or commonwealth, or territory is a proper
insured has been reimbursed by the conditional; and claimant.
insurer and the insurance information is (ii) Every power of attorney or other
purported authority to receive payment Note to § 536.27: See the parallel
listed on the SF 95. The insurer should
discussion at DA Pam 27–162, paragraph 2–
be required to file a separate SF 95 for for all or part of any such claim. 6.
payment purposes even though the SOL (2) The Antiassignment Act was
has expired. Where the insurance enacted to eliminate multiple payment
§ 536.28 Claims acknowledgment.
information is not listed on the SF 95 of claims, to cause the United States to
and the insured is paid by the United deal only with original parties and to Claims personnel will acknowledge
States, the payment of the insurer is the prevent persons of influence from all claims immediately upon receipt, in
responsibility of the insured even purchasing claims against the United writing, by telephone, or in person. A
though the insurer subsequently files a States. defective claim will be acknowledged in
timely claim. To avoid this situation, (3) In general, this statute prohibits writing, pointing out its defects. Where
always inquire as to the status of any voluntary assignments of claims, with the defects render the submission
insurance prior to payment of a property the exception of transfers or jurisdictionally deficient based on the
damage claim. assignments made by operation of law. requirements discussed in DA Pam 27–
(c) By an agent or legal representative. The operation of law exception has been 162, paragraphs 2–5 and 2–6, the
A claimant’s agent or legal held to apply to claims passing to claimant or attorney will be informed in
representative who presents a claim will assignees because of bankruptcy writing of the need to present a proper
do so in the claimant’s name and sign proceedings, assignments for the benefit claim no later than two years from the
the form in such a way that indicates of creditors, corporate liquidations, date of accrual. Suit must be filed in
the agent’s or legal representative’s title consolidations, or reorganizations, and maritime claims not later than two years
or capacity. When a claim is presented where title passes by operation of law to from the date of accrual. See § 536.122.
by an agent or legal representative: heirs or legatees. Subrogated claims that In any claim for personal injury or
(1) It must contain written evidence of arise under a statute are not barred by wrongful death, an authorization signed
the agent’s or legal representative’s the Antiassignment Act. For example, by the patient, natural or legal guardian
authority to sign, such as a power of subrogated workers’ compensation or estate representative will be obtained
attorney, or claims are cognizable when presented authorizing the use of medical
(2) It must refer to or cite the statute by the insurer under subpart D or H of information, including medical records,
granting authority. this part, but not other subparts. in order to use sources other than claims
(d) Subrogation. A claim may be (4) Subrogated claims that arise personnel to evaluate the claim as
presented by the subrogee in his or her pursuant to contractual provisions may required by the Health Care Portability
own name if authorized by the law of be paid to the subrogee, if the legal basis and Accountability Act (HIPAA), 42
the place where the incident giving rise for the subrogated claim is recognized U.S.C. 1320d–1320d–8. See the parallel
to the claim occurred, under subpart D by state statute or case law, only under discussion at DA Pam 27–162,
or H of this part only. A lienholder is subpart D or H of this part. For example, paragraph 2–7.
not a proper claimant and should be an insurer that issues an insurance
distinguished from a subrogee to avoid policy becomes subrogated to the rights § 536.29 Revision of filed claims.
violation of the Antiassignment Act. See of a claimant who receives payment of (a) General. A revision or change of a
paragraph (f) of this section. However, a property damage claim. Generally, previously filed claim may constitute an
liens arising under Medicare will be such subrogated claims are authorized amendment or a new claim. Upon
processed directly with the Center for by state law and are therefore not barred receipt, the CJA must determine
Medicare and Medicaid Systems. See by the Antiassignment Act. whether a new claim has been filed. If
DA Pam 27–162, paragraphs 2–57g and (5) Before claims are paid, it is so, the claim must be logged with a new
h and 2–58. necessary to determine whether there number and acknowledged in
(e) Contribution or indemnity. A claim may be a valid subrogated claim under accordance with § 536.27.
may be filed for contribution or a federal or state statute or a subrogation (b) New claim. A new claim is filed
indemnification by the party who was contract held valid by state law. whenever the writing alleges a new
held liable as a joint tortfeasor where (g) Interdepartmental waiver rule. theory of liability, a new tortfeasor, a
authorized by state law. Such a claim is Neither the U.S. government nor any of new party claimant, a different date or
not perfected until payment has been its instrumentalities are proper location for the claims incident, or other
made by the claimant/joint tortfeasor. A claimants due to the interdepartmental basic element that constitutes an
claim filed for contribution prior to waiver rule. This rule bars claims by allegation of a different tort not
payment being made should be any organization or activity of the Army, originally alleged. If the allegation is
considered as an opportunity to share a whether or not the organization or made verbally or by e-mail, the claimant
settlement where the United States is activity is funded with appropriated or will be informed in writing that a new
liable. nonappropriated funds. Certain federal SF 95 must be filed. A new claim must
(f) Transfer or assignment. (1) Under agencies are authorized by statute to file be filed not later than two years from
the Antiassignment Act (31 U.S.C. 3727) claims, for example, Medicare and the the accrual date under the FTCA. Filing
and Defense Finance and Accounting Railroad Retirement Commission. See a new claim creates an additional six
Service—Indianapolis (DFAS–IN) DA Pam 27–162, paragraph 2–17f. month period during which suit may
regulation 37–1, a transfer or assignment (h) States are excluded. If a state, U.S. not be filed.
is null and void except where it occurs commonwealth, territory, or the District (c) Amendment. An increase or
by operation of law or after a voucher of Columbia maintains a unit to which decrease in the amount claimed
for the payment has been issued. The ARNG personnel causing the injury or constitutes an amendment, not a new
following are null and void: damage are assigned, such governmental claim. Similarly, the addition of
required information not on the original marked with the symbol ‘‘NAFI’’ Note to § 536.31: See the parallel
claim constitutes an amendment. immediately following the claimant’s discussion at DA Pam 27–162, paragraph 2–
Examples are date of birth, marital name, to preclude erroneous payment 10.
status, military status, names of from appropriated funds (APF). This
witnesses, claimant’s address, symbol will also be included in the § 536.32 Transfer of claims among armed
services branches.
description, or location of property or subject line of all correspondence.
insurance information. An amendment (e) Upon receipt, copies of the claims (a) Claims filed with the wrong
may be filed before or after the two year will be furnished as follows (when a federal agency, or claims that should be
SOL has run unless final action has current e-mail address is available and adjudicated by receiving State offices
been taken. A new number will not be it is agreeable with the receiving party, under NATO or other SOFA, will be
assigned to an amended claim; however, providing copies by e-mail is immediately transferred to the proper
a change in the amount will be acceptable): agency together with notice of same to
annotated in the database. (1) To USARCS, if the amount the claimant or legal representative.
claimed exceeds $25,000, or $50,000 per Where multiple federal agencies are
Note to § 536.29: See the parallel involved, other agencies will be
discussion at DA Pam 27–162, paragraph 2– incident. However, if the claim arises
under the FTCA or AMCSA, only contacted and a lead agency established
8. to take all actions on the claim. Where
furnish copies if the amount claimed
exceeds $50,000, or $100,000 per the DA is the lead agency, any final
§ 536.30 Action upon receipt of claim. action will include other agencies.
(a) A properly filed claim stops the incident.
Similarly, where another agency is the
running of the SOL when it is received (2) For medical malpractice claims, to
lead agency, that agency will be
by any organization or activity of the the appropriate MTF Commander/s
requested to include DA in any final
DOD or the U.S. Armed Services. through MEDCOM Headquarters, and to
action. Such inclusion will prevent
Placing a claim in the mail does not the Armed Forces Institute of Pathology
multiple dates for filing suit or appeal.
constitute filing. The first Army claims at the addresses listed below. (b) If another agency has taken denial
office that receives the claim will date, MEDCOM, ATTN: MCHO–CL–Q, 2050 action on a claim that involves the DA,
time stamp, and initial the claim as of Worth Road, Suite 26, Fort Sam Houston, without informing the DA, and in which
the date the claim was initially received Texas 78234–5026. the DA desires to make a payment, the
‘‘on post,’’ not by the claims office. If Department of Legal Medicine, Armed denial action may be reconsidered by
initially received close to the SOL’s Forces Institute of Pathology, 1335 E. West
Highway, #6–100, Silver Spring, MD 20910–
the DA not later than six months from
expiration date by an organization or the date of mailing and payment made
6254, Commercial: 301–295–8115, E-Mail:
activity that does not have a claims casha@afip.osd.mil. thereafter.
office, claims personnel will discover
(3) If the claim is against AAFES Note to § 536.32: See also §§ 536.17 and
and record in the file the date of original 536.18; AR 27–20, paragraph 13–2; and the
receipt. forward a copy to: HQ Army and Air parallel and related discussion of this topic
(b) The ACO or CPO that first receives Force Exchange Service (AAFES), at DA Pam 27–162, paragraphs 1–19, 1–20,
the claim will enter the claim into the ATTN: Office of the General Counsel 2–13 and 13–2.
Tort and Special Claims Application (GC–Z), P.O. Box 650062, Dallas, TX
(TSCA) database and let the system 75265–0062, E-Mail: § 536.33 Use of small claims procedures.
assign a number to the claim. The claim, blanchp@aafes.com. Small claims procedures are
whether on an SF 95 or in any other (4) If the claim involves a NAFI, authorized for use whenever a claim
format, shall be scanned into a including a recreational user or family may be settled for $5,000 or less. These
computer and uploaded onto the TSCA child care provider forward a copy to: procedures are designed to save
database so that it will become a Army Central Insurance Fund, ATTN: processing time and eliminate the need
permanent part of the electronic record. CFSC–FM–I, 4700 King Street, for most of the documentation otherwise
A joint claim will be given a number for Alexandria, VA 22302–4406, E-Mail: required. These procedures are
each claimant, for example, husband riskmanagement@cfsc.army.mil. described in DA Pam 27–162,
and wife, injured parent and children. If (f) ACOs or CPOs will furnish a copy paragraphs 2–14 and 2–26.
only one sum is filed for all claimants, of any medical or dental malpractice
the same sum will be assigned for each claim to the MTF or dental treatment § 536.34 Determination of correct statute.
claimant. However, request the claimant facility commander and advise the (a) Consideration under more than
to name a sum for each claimant. The commander of all subsequent actions. one statute. When Congress enacted the
claim will bear this number throughout The commander will be assisted in his various claims statutes, it intended to
the claims process. Upon transfer, a new or her responsibility to complete DD allow federal agencies to settle
number will not be assigned by the Form 2526 (Case Abstract for meritorious claims. A claim must be
receiving office. If a claim does not meet Malpractice Claims). considered under other statutes in this
the definition of a proper claim under part unless one particular statute
Note to § 536.30: See the parallel precludes the use of other statutes,
§§ 536.26 and 536.27, it will be date
discussion at DA Pam 27–162, paragraph 2–
stamped and logged as a Potentially 9.
whether the claim is filed on DD Form
Compensable Event (PCE). 1842 (Claim for Loss of or Damage to
(c) The claim will be transferred if the Personal Property Incident to Service) or
§ 536.31 Opening claim files.
claim incident arose in another ACO’s SF 95. Prior to denial of an AR 27–20,
geographic area; the receiving ACO will A claim file will be opened when: chapter 11 claim, consider whether it
use the claims number originally (a) Information that requires may fall within the scope of subparts C,
assigned. investigation under § 536.23 is received. D, or F of this part, and where indicated,
(d) Non-Appropriated Fund (b) Records or other documents are question the claimant to determine
Instrumentality (NAFI) claims that requested by a potential claimant or whether the claim sounds in tort.
relate to claims determined cognizable legal representative. (b) Exclusiveness of certain remedies.
under subpart K of this part will be (c) A claim is filed. Certain remedies exclude all others. For
example, the Court of Federal Claims an ACO or a CPO under USARCS’ otherwise payable, efforts may be made
has exclusive jurisdiction over U.S. direction. to enter into a sharing agreement with
Constitution Fifth Amendment takings, (d) Foreign Claims Act claims. (1) the state concerned. The following
express or implied-in-fact, as well as Claims by foreign inhabitants, arising in procedures are required in the event
governmental contract losses, or a foreign country, which are not there is a remedy against the state and
intangible property losses. Claims of cognizable under a SOFA, fall the state refuses to pay or the state
this nature for $10,000 or less may be exclusively under the FCA. The maintains insurance coverage and the
filed in a U.S. District Court. There is no determination as to whether a claimant claimant has filed an administrative
administrative remedy. While the FTCA is a foreign inhabitant is governed by claim against the United States. First,
is the preemptive tort remedy in the the rules set out in subpart C and forward the file and the tort claim
United States, its commonwealths, subpart J of this part. In case of doubt, memorandum, including information on
territories and possessions, this determination must be based on the status of any judicial or
nevertheless, other remedies must be information obtained from the claimant administrative action the claimant has
exhausted prior to favorable and others, particularly where the taken against the state or its insurer to
consideration under the FTCA. The claimant is a former U.S. service the Commander USARCS. Upon receipt,
FTCA does not preclude use of the MCA member or a U.S. citizen residing in a the Commander USARCS will
or the NGCA for claims arising out of foreign country. determine whether to require the
noncombat activities or brought by (2) Tort claims will be processed by claimant to exhaust his or her remedy
soldiers for incident-to-service property the armed service that exercises single- against the state or its insurer or
losses sustained within the United service responsibility. When requested, whether the claim against the United
States. See DA Pam 27–162, paragraphs the Commander USARCS may furnish a States can be settled without requiring
2–15a and b for a more detailed Judge Advocate or civilian attorney to such exhaustion. If the Commander
discussion of determining the correct serve as a Foreign Claims Commission USARCS decides to follow the latter
statute for property claims versus (FCC) for another service. With the course of action, he or she will also
personal injury and death claims. In concurrence of the Commander determine whether to obtain an
addition, it is important to consider the USARCS, Army JAs may be appointed assignment of the claim against the state
nature of the claim, e.g., whether the as members of another department’s or its insurer and whether to initiate
claim may be medical malpractice in foreign claims commissions. See recovery action to obtain contribution or
nature, related to postal matter, or an Subpart J of this part. The FCA permits indemnification. The state or its insurer
automobile accident. Discussions of compensation for damages caused by will be given appropriate notification in
these and many other different types of ‘‘out-of-scope’’ tortious conduct of accordance with state law.
Soldier and civilian employees. Many of
claims are also provided herein as well (ii) If an administrative claim remedy
these claims are also compensable
as in the corresponding paragraph 2–15 exists under state law or the state
under Article 139, Uniform Code of
of DA Pam 27–162. It is also very maintains liability insurance, the
Military Justice. See DA Pam 27–162,
important to consider when a claim may Commander USARCS or an ACO acting
chap. 9. To avoid the double payment
fall outside the jurisdiction of the Army upon the Commander USARCS’
of claims, ACOs and CPOs must
claims system. Some of these instances approval may enter into a sharing
promptly notify the Command Claims
are alluded to immediately above, but agreement covering payment of future
Service of each approved Article 139
for a detailed discussion of related claims. The purpose of such an
claim involving a claimant who could
remedies see § 536.36 of this part and agreement is to determine in advance
also file under an applicable SOFA.
paragraph 2–17 of DA Pam 27–162. (e) National Guard Claims Act claims. whether the state or the DA is
(c) Status of Forces Agreement (1) Claims attributed to the acts or responsible for processing a claim (did
Claims. (1) Claims arising out of the omissions of ARNG personnel in the the claim arise from a federal or state
performance of official duties in a course of employment fall into the mission?), to expedite payment in
foreign country where the United States categories set forth in subpart F of this meritorious claims, and to preclude
is the sending State must be filed and part. double recovery by a claimant.
processed under a SOFA, provided that (2) An ACO will establish with a state (f) Third-party claims involving an
the claimant is a proper party claimant claims office routine procedures for the independent contractor.
under the SOFA. DA Pam 27–162, disposition of claims, designed to (1) Generally. (i) Upon receipt, all
paragraph 2–15c sets forth the rules ensure that the United States and state claims will be examined to determine
applicable in particular countries. A authorities do not issue conflicting whether a contractor of the United
SOFA provides an exclusive remedy instructions for processing claims. The States is the tortfeasor. If so, the
subject to waiver as set forth in procedures will require personnel to claimant or legal representative will be
§ 536.76(h) of this part. advise the claimant of any remedy notified of the name and address of the
(2) Single-service jurisdiction is against the state or its insurer. contractor and further advised that the
established for all foreign countries in (i) Where the claim arises out of the United States is not responsible for the
which a SOFA is in effect and for act or omission of a member of the acts or omissions of an independent
certain other countries. A list of these ARNG or a person employed under 32 contractor. This will be done prior to
countries is posted on the USARCS Web U.S.C. 709, it must be determined any determination as to the contractor’s
site; for the address see § 536.2(a). whether the employee is acting on degree of culpability as compared to
Claims will be processed by the service behalf of the state or the United States. that of the United States.
exercising single-service responsibility. For example, an ARNG pilot employed (ii) If, upon investigation, the damage
In the United States, USARCS is the under section 709 may be flying on a is considered to be primarily due to the
receiving State office and all SOFA state mission, federal mission, or both, contractor’s fault or negligence, the
claims should be forwarded on the same trip. This determination claim will be referred to the contractor
immediately to USARCS for action. will control the disposition of the claim. or the contractor’s insurance carrier for
Appropriate investigation under subpart If agreement with the concerned state settlement and the claimant will be so
B of this part procedures is required of cannot be reached and the claim is advised.
(iii) Health care providers hired under filing requirement. In case of doubt, the allegedly within the scope of
personal services contracts under the ACO or CPO should discuss the matter employment must be forwarded to the
provisions of 10 U.S.C. 1089 are not with the appropriate AAO. Even when Commander USARCS for review and
considered to be independent the claimant does not believe that a consultation before final action. The
contractors but employees of the United maritime claim is involved, provide the claim will be investigated and any
States for tort claims purposes. claimant with precautionary notice. See authorization for use ascertained
(2) Claims for injury or death of DA Pam 27–162, paragraphs 2–7e and including payment for mileage. A copy
contractor employees. Upon receipt of a 8–6. of the Soldier’s POV insurance policy
claim for injury or death of a contractor (i) Postal claims. See also DA Pam 27– will be obtained prior to forwarding. If
employee, a copy of the portions of the 162, paragraphs 2–15i, 2–30 and 2–56g the DA is an additional insurer under
contract applicable to claims and discussing postal claims. applicable state law, the claim will be
workers’ compensation will be obtained, (1) Claims by the U.S. Postal Service forwarded to the Soldier’s liability
either through the contracting office or for funds and stock are adjudicated by carrier for payment. When the tort claim
from the contractor. Claims personnel USARCS with assistance from the arises in a foreign country, follow the
must find out the status of any claim for Military Postal Service Agency and the provisions of Subpart J of this part.
workers’ compensation benefits as well ACO or CPO having jurisdiction over (l) Claims arising from gratuitous use
as whether the United States paid the the particular Army post office, when of DOD or Army vehicles, equipment or
premiums. The goal is to involve the directed by USARCS to assist in the facilities. (1) Before the commencement
contractor in any settlement, where investigation of the claim. of any event that involves the use of
indicated, in the manner set forth in DA (2) Claims for loss of registered and DOD or Army land, vehicles, equipment
Pam 27–162, paragraphs 2–15f and 2– insured mail are processed under or Army personnel for community
61. In claims arising in foreign countries subpart C of this part by the ACO or activities, the Command involved
consider whether the claim is covered CPO having jurisdiction over the should be advised to first determine and
by the Defense Bases Act, 42 U.S.C. particular Army post office. weigh the risk to potential third-party
1651–1654. (3) Claims for loss of, or damage to, claimants against the benefits to the
(g) Claims by contractors for damage parcels delivered by United Parcel DOD or the Army. Where such risk is
to or loss of their property during the Service (UPS) are the responsibility of excessive, try to obtain an agreement
performance of their contracts. Claims UPS. from the sponsoring civilian
by contractors for property damage or (j) Blast damage claims. After organization holding the Army
loss should be referred to the completing an investigation and prior to harmless. When feasible, third-party
contracting officer for determination as final action, all blast damage claims liability insurance may be required from
to whether the claim is payable under resulting from Army firing and the sponsor and the United States added
the contract. Such a claim is not payable demolition activities must be forwarded to the policy as a third-party insured.
under the FTCA where the damage to the Commander USARCS for (2) When Army equipment and
results from an in-scope act or omission. technical review. The sole exception to personnel are used for debris removal
Contract appeal procedures must be this rule is when a similar claim is filed relief pursuant to the Federal Disaster
exhausted prior to consideration as a citing the same time, place and type of Relief Act, 42 U.S.C. 5173, the state is
bailment under the MCA or FCA. damage as one which has already required to assume responsibility for
(h) Maritime claims. Maritime torts received technical review. See also DA third-party claims. The senior judge
are excluded from consideration under Pam 27–162, paragraph 2–28. advocate for a task force engaged in
the FTCA. The various maritime statutes (k) Motor vehicle damage claims such relief should obtain an agreement
are exclusive remedies within the arising from the use of non- requiring the state to hold the Army
United States and its territorial waters. governmental vehicles. See also § 536.60 harmless and establish a procedure for
Maritime statutes include the Army (splitting property damage and personal payment by the state. Claims will be
Maritime Claims Settlement Act injury claims) and DA Pam 27–162, received, entered into the TSCA
(AMCSA), 10 U.S.C. 4801, 4802 and paragraphs 2–15k (determining the database, investigated and forwarded to
4806, the Suits in Admiralty Act (SIAA), correct statute), 2–61 (joint tortfeasors), state authorities for action.
46 U.S.C. app. 781–790, the Public and 2–62e (indemnity or contribution). (m) Real estate claims. Claims for
Vessels Act (PVA), 46 U.S.C. app. 781– (1) Government tortfeasors. A Soldier rent, damage, or other payments
790, and the Admiralty Extension Act or U.S. government civilian employee involving the acquisition, use,
(AEA), 46 U.S.C. app. 740. Within the who negligently damages his or her possession or disposition of real
U.S. and its territorial waters, maritime personal property while acting within property or interests therein, are
suits may be filed under the SIAA or the the scope of employment is not a proper generally payable under AR 405–15.
PVA without first filing an claimant for damage to that property. These claims are handled by the Real
administrative claim, except where (2) Claims by lessors for damage to Estate Claims Office in the appropriate
administrative filing is required by the rental vehicles. Third-party claims COE District or a special office created
AEA. Administrative claims may also be arising from the use of rental vehicles for a deployment. Directorate of Real
filed under the AMSCA. In any will be processed in the same manner as Estate, Office of the Chief of Engineers,
administrative claim brought under the NAFI commercially insured activities has supervisory authority. Claims for
AMCSA, all action must be completed after exhaustion of any other remedy damage to real property and incidental
not later than two years from its accrual under the Government Travel Card personal property, but not for rent (for
date or the SOL will expire. Outside the Program or the Surface Deployment and example, claims arising during a
United States, a maritime tort may be Distribution Command Car Rental maneuver or deployment) may be
brought under the MCA or FCA as well Agreement. payable under subparts C or J of this
as the AMCSA. The body of water on (3) Third-party damages arising from part. However, priority should be given
which it occurs must be navigable and the use of privately owned vehicles. to the use of AR 405–15 as it is more
a maritime nexus must exist. Once a Third-party tort claims arising within flexible and expeditious. In contingency
maritime claim is identified, give the the United States from a Soldier’s use of operations and deployments, there is a
claimant written notice of the two-year a privately owned vehicle (POV) while large potential for overlap between
contractual property damage claims and Environmental Rehabilitation Funds expert consultants to furnish opinions,
noncombat activity/maneuver claims. should be considered initially and any and medical specialists to conduct
Investigate carefully to ensure the claim such payment should be deducted from independent medical examinations
is in the proper channel (claims or real any settlement under AR 27–20. (IMEs). Other expenses to be provided
estate), that it is fairly settled, and that for from O&M funds include the
§ 536.36 Related remedies.
the claimant does not receive a double purchase of documents, such as medical
payment. For additional guidance, see An ACO or a CPO routinely receives records, and the hiring of mediators. See
subpart J of this part and United States claims or inquiries about claims that § 536.53(b). Where the cost exceeds
Army Claims Service Europe clearly are not cognizable under this $750 or local funds are exhausted, a
(USACSEUR) Real Estate/Office of the part. It is the DA’s policy that every request for funding should be directed
Judge Advocate Standard Operating effort be made to discover another to the Commander USARCS, with
Procedures for Processing Claims remedy and inform the inquirer as to its appropriate justification. The USARCS
Involving Real Estate During nature. Claims personnel will AAO must be notified as soon as
Contingency Operations (August 20, familiarize themselves with the possible when an accident
2002). remedies set forth in DA Pam 27–162, reconstruction is indicated.
(n) Claims generated by civil works paragraph 2–17, to carry out this policy. (b) Where the claim arises from
projects. Civil works projects claims If no appropriate remedy can be treatment at an Army MTF, the
arising from tortious activities are discovered, forward the file to the MEDDAC commander should be
defined by whether the negligent or Commander USARCS, with requested to fund the cost of an
wrongful act or omission arising from a recommendations. independent consultant’s opinion or an
project or activity is funded by a civil § 536.37 Importance of the claims IME.
works appropriation. Civil works claims investigation. (c) The use of outside consultants and
are those noncontractual claims which Prompt and thorough investigation appraisers should be limited to claims
arise from a negligent or wrongful act or will be conducted on all potential and in which liability or damages cannot be
omission during the performance of a actual claims for and against the determined otherwise and in which the
project or activity funded by civil works government. Evidence developed during use of such sources is economically
appropriations as distinguished from a an investigation provides the basis for feasible, for instance, where property
project or activity funded by Army every subsequent step in the damage is high in amount and not
operation and maintenance funds. Civil administrative settlement of a claim or determinable by a government appraiser
works claims are paid out of civil works in the pursuit of a lawsuit. Claims or where the extent of personal injury is
appropriations to the extent set forth in personnel must gather and record serious and a government IME is neither
§ 536.71(f). A civil works claim can also adverse as well as favorable available nor acceptable to a claimant.
arise out of a noncombat activity, for information. The CJA, claims attorney or Prior to such an examination at an MTF,
example, an inverse condemnation unit claims officer must preserve their ensure that the necessary specialists are
claim in which flooding exceeds the legal and factual findings. available and a prompt written report
high water mark. Maritime claims under may be obtained.
subpart H of this part are civil works § 536.38 Elements of the investigation. (d) Either an IME or an expert opinion
claims when they arise out of the (a) The investigation is conducted to is procured by means of a personal
operation of a dam, locks or ascertain the facts of an incident. Which services contract under the Federal
navigational aid. facts are relevant often depends on the Acquisition Regulation (FAR), part 37,
law and regulations applicable to the 48 CFR 37.000 through 37.604, through
Note to § 536.34: See parallel discussion at conduct of the parties involved but the local contracting office. The contract
DA Pam 27–162, paragraph 2–1.
generally the investigation should must be in effect prior to
develop definitive answers to such commencement of the records review.
§ 536.35 Unique issues related to
environmental claims.
questions as ‘‘When?’’ ‘‘Where?’’ Payment is authorized only upon
‘‘Who?’’ ‘‘What?’’ and ‘‘How?’’. receipt of a written report responsive to
Claims for property damage, personal
Typically, the time, place, persons, and the questions asked by the CJA or claims
injury, or death arising in the United
circumstances involved in an incident attorney.
States based on contamination by toxic (e) Whenever a source other than
may be established by a simple report,
substances found in the air or the claims personnel is used to assist in the
but its cause and the resulting damage
ground must be reported by USARCS to evaluation of a claim in which medical
may require extensive effort to obtain all
the Environmental Law Division of the information protected by HIPAA is
the pertinent facts.
Army Litigation Center and the (b) The object of the investigation is involved, the source must sign an
Environmental Torts Branch of DOJ. to gather, with the least possible delay, agreement designed to protect the
Such claims arising overseas must be the best available evidence without patient’s privacy rights.
reported to the Command Claims accumulating excessive evidence
Service with geographical jurisdiction concerning any particular fact. The § 536.40 Conducting the investigation.
over the claim and USARCS. Claims for claimant is often an excellent source of (a) The methods and techniques for
personal injury from contamination such information and should be investigating specific categories of
frequently arise at an area that is the contacted early in the investigation, claims are set forth in DA Pam 27–162,
subject of claims for cleanup of the particularly when there is a question as paragraphs 2–25 through 2–34. The
contamination site. The cleanup claims to whether the claim was timely filed. investigation of medical malpractice
involve other Army agencies, use of claims should be conducted by a CJA or
separate funds, and prolonged § 536.39 Use of experts, consultants and claims attorney, using a medical claims
investigation. Administrative settlement appraisers. investigator.
is not usually feasible because (a) ACOs or CPOs will budget (b) A properly filed claim must
settlement of property damage claims operation and maintenance (O&M) contain enough information to permit
must cover all damages, including funds for the costs of hiring property investigation. For example, if the claim
personal injury. Payment by Defense appraisers, accident reconstructionists, does not specify the date, location or
details of every incident complained of, § 536.42 Constitutional torts. States) of subpart G, except as noted
the claimant or legal representative A claim for violation of the U.S. therein, and not to subparts E, J or
should be required to furnish the Constitution does not constitute a state §§ 536.107–536.113 (Claims arising
information. tort and is not cognizable under any overseas) of subpart G of this part. A
(c) Request the claimant or legal subpart. A constitutional claim will be claim is not payable if it:
representative to specify a theory of scrutinized in order to determine (a) Is based upon an act or omission
liability. However, the investigation whether it is totally or partially payable of an employee of the U.S. government,
should not be limited to the theories as a state tort. For example, a Fifth exercising due care, in the execution of
specified, particularly where the Amendment taking may be payable in a statute or regulation, whether or not
claimant is unrepresented. All logical an altered form as a real estate claim. such statute or regulation is valid. This
theories should be investigated. For further discussion see DA Pam 27– exclusion does not apply to a
162, paragraph 2–36. noncombat activity claim.
§ 536.41 Determination of liability— (b) Is based upon the exercise or
generally. § 536.43 Incident to service. performance or the failure to exercise or
(a) A member of the armed forces’ perform a discretionary function or duty
(a) Under the FTCA, the United States claim for personal injury or wrongful on the part of a federal agency or an
is liable in the same manner and to the death arising incident to service is not employee of the government, whether or
same extent as a private individual payable under any subpart except to the not the discretion is abused. This
under like circumstances in accordance extent permitted by the receiving State exclusion does not apply to a
with the law of the place where the act under §§ 536.107 through 536.113 noncombat activity claim.
or omission giving rise to the tort (Claims arising overseas); however, a (c) Arises out of the loss, miscarriage,
occurred (28 U.S.C. 2673 and 2674). claim by a member of the United States or negligent transmission of letters or
This means that liability must rest on Armed Forces for property loss or postal matters. This exclusion is not
the existence of a tort cognizable under damage may be payable under AR 27– applicable to registered or certified mail
state law, hereinafter referred to as a 20, chapter 11 or, if not, under subparts claims under subpart C of this part. See
state tort. A finding of state tort liability C, E, F, or G of this part. Derivative § 536.34(i).
requires the litigating attorney to prove claims and claims for indemnity are also (d) Arises in respect of the assessment
the elements of duty, breach of duty, excluded. or collection of any tax or customs duty,
causation, and damages as interpreted (b) Claims for personal injury or or the detention of any goods or
by federal case law. wrongful death by members of a foreign merchandise by any customs or other
(b) The foregoing principles and military force participating in a joint law enforcement officer. See 28 U.S.C.
requirements will be followed in regard military exercise or operation arising 2680(c).
to tort claims against the United States incident to service are not payable (e) Is cognizable under the SIAA (46
under other subparts, with certain under any subpart. Claims for property U.S.C. app. 741–752), the PVA (46
exceptions noted within the individual loss or damage, but not subrogated U.S.C. app. 781–790), or the AEA (46
subparts or particular tort statutes. claims, may be payable under subpart C U.S.C. app. 740). This exclusion does
(c) Interpretation will be made in of this part. Derivative claims and not apply to subparts C, F, H or J of this
accordance with FTCA case law and claims for indemnity or contribution are part.
also maritime case law where not payable under any subpart. (f) Arises out of an act or omission of
applicable. Additionally, a noncombat Note to § 536.43: For further discussion see any federal employee in administering
activity can furnish the basis for a claim DA Pam 27–162, paragraph 2–37. the provisions of the Trading with the
under subparts C, F, and J of this part. Enemy Act, 50 U.S.C. app. 1–44.
Noncombat activities include claims § 536.44 FECA and LSHWCA claims (g) Is for damage caused by the
arising out of civil works, such as exclusions. imposition or establishment of a
inverse condemnation. A federal or NAFI employee’s quarantine by the United States.
(d) Federal, not state or local, law personal injury or wrongful death claim (h) Arises out of assault, battery, false
applies to a determination as to who is payable under the Federal Employees imprisonment, false arrest, malicious
a federal employee or a member of the Compensation Act (FECA) or the prosecution, abuse of process, libel,
armed forces. Under all subparts, the Longshore and Harbor Workers slander, misrepresentation, deceit, or
designation ‘‘federal employee’’ Compensation Act (LSHWCA) is not interference with contract rights, except
excludes a contractor of the United payable under any subpart. Derivative for acts or omissions of investigation of
States. See 28 U.S.C. 2671. See however, claims are also excluded but a claim for law enforcement officers of the U.S.
§ 536.23(b) (4)(ii) concerning personal indemnity may be payable under certain government with regard to assault,
services contractors. For employment circumstances. A federal or NAFI battery, false imprisonment, false arrest,
identification purposes apply FTCA employee’s claim for an incident-to- abuse of process or malicious
case law in making a determination. service property loss or damage may be prosecution. This exclusion also does
payable under AR 27–20, chapter 11 or, not apply to a health care provider as
(e) Federal, not state or local, law defined in 10 U.S.C. 1089 and § 536.80
if not, under subparts C, D, F, G, H or
applies to an interpretation of the SOL of this part, under the conditions listed
J of this part. For further discussion see
under all subparts. Minority or therein.
incompetence does not toll the SOL. (i) Arises from the fiscal operations of
Case law developed under the FTCA § 536.45 Statutory exceptions. the U.S. Department of the Treasury or
will be used in other subparts in This topic is more fully discussed in from the regulation of the monetary
interpreting SOL questions. DA Pam 27–162, paragraph 2–39. The system.
(f) Under the FTCA state or local law exclusions listed below are found at 28 (j) Arises out of the combatant
is used to determine scope of U.S.C. 2680 and apply to subparts C, D, activities of U.S. military or naval
employment and under other subparts F, and H and §§ 536.107 through forces, or the Coast Guard during time
for guidance. 536.113 (Claims arising in the United of war.
(k) Arises in a foreign country. This (e) Non-justiciability doctrine. A claim § 536.49 Scope of employment
exclusion does not apply to subparts C, is not payable under any subpart if it requirement.
E, F, H, J or §§ 536.114 through 536.116 arises from activities that present a non- To be payable, a claim must be based
(Claims arising overseas) of subpart G of justiciable political question. See DA on acts or omissions of a member of the
this part. Pam 27–162, paragraph 2–43. armed forces, a member of a foreign
(l) Arises from the activities of the (f) National Vaccine Act. (42 U.S.C. military force within the United States
Tennessee Valley Authority, 28 U.S.C. 300aa-l through 300aa-7). A claim is not with which the United States has a
2680(l). payable under any subpart if it arises reciprocal claims agreement, or a federal
(m) Arises from the activities of the from the administration of a vaccine employee acting within the scope of
Panama Canal Commission, 28 U.S.C. unless the conditions listed in the employment, except for subparts E, J, or
2680(m). National Vaccine Injury Compensation subpart K of this part, §§ 536.153
(n) Arises from the activities of a Program (42 U.S.C. 300aa-9 through through 536.157 (Claims involving
federal land bank, a federal intermediate 300aa-19) have been met. See DA Pam tortfeasors other than nonappropriated
credit bank, or a bank for cooperatives, 27–162, paragraph 2–17c(6)(a). fund employees). A claim arising from
28 U.S.C. 2680(n). (g) Defense Mapping Agency. A claim noncombat activities must be based on
is not payable under any subpart if it the armed service’s official activities.
Note to § 536.45: This topic is more fully Excluded are claims based on vicarious
discussed in DA Pam 27–162, paragraph 2–
arises from inaccurate charting by the
Defense Mapping Agency, 10 U.S.C. liability or the holder theory in which
39. the owner of the vehicle is responsible
456. See FTCH section II, B4s (Web
address at paragraph (a) of this section). for any injury or damage regardless of
§ 536.46 Other exclusions. who the operator was. See parallel
(h) Quiet Title Act. Within the U.S., a
(a) Statutory employer. A claim is not discussion at DA Pam 27–162,
claim is not payable if it falls under the
payable under any subpart if it is for paragraph 2–46.
Quiet Title Act 28 U.S.C. 2409a.
personal injury or death of any contract
employee for whom benefits are (i) Defense Bases Act. A claim arising § 536.50 Determination of damages—
outside the United States is not payable applicable law.
provided under any workers’
compensation law, if the provisions of if it is covered by the Defense Bases Act, (a) The Federal Tort Claims Act. The
the workers’ compensation insurance 42 U.S.C. 1651–1654. whole law of the place where the
are retrospective and charge an incident giving rise to the claim
Note to § 536.46: See parallel discussion at
allowable expense to a cost-type occurred, including choice of law rules,
DA Pam 27–162, paragraphs 2–40 through 2–
contract, or if precluded by state law. 43. is applicable. Therefore, the law of the
See Federal Tort Claims Handbook place of injury or death does not
(FTCH), section II, D7 (posted on the § 536.47 Statute of limitations. necessarily apply. Where there is a
Web at https://www.jagcnet.army.mil/ conflict between local law and an
To be payable, a claim against the express provision of the FTCA, the latter
laawsxxi/cds.nsf. Select the link United States under any subpart, except
‘‘Claims’’ under ‘‘JAG Publications.’’) governs.
§§ 536.114 through 536.116 (Claims (b) The Military Claims Act or
The statutory employer exclusion also arising overseas), must be filed no later National Guard Claims Act. See
applies to claims that may be covered by than two years from the date of accrual subparts C and F of this part. The law
the Defense Bases Act, 42 U.S.C. 1651– as determined by federal law. The set forth in § 536.80 applies only to
1654. accrual date is the date on which the claims accruing on or after September 1,
(b) Flood exclusion. Within the claimant is aware of the injury and its 1995. The law of the place of the
United States a claim is not payable if cause. The claimant is not required to incident giving rise to the claim will
it arises from damage caused by flood or know of the negligent or wrongful apply to claims arising in the United
flood waters associated with the nature of the act or omission giving rise States, its commonwealths, territories
construction or operation of a COE flood to the claim. The date of filing is the and possessions prior to September 1,
control project, 33 U.S.C. 702(c). See DA date of receipt by the appropriate 1995. The general principles of U.S. tort
Pam 27–162, paragraph 2–40. federal agency, not the date of mailing. law will apply to property damage or
(c) ARNG property. A claim is not See also § 536.26(a) and parallel loss claims arising outside the United
payable under any subpart if it is for discussion at DA Pam 27–162, States prior to September 1, 1995.
damage to, or loss of, property of a state, paragraph 2–44. Established principles of general
commonwealth, territory, or the District maritime law will apply to injury or
of Columbia caused by ARNG § 536.48 Federal employee requirement.
death claims arising outside the United
personnel, engaged in training or duty To be payable, a claim under any States prior to September 1, 1995. See
under 32 U.S.C. 316, 502, 503, 504, or subpart except subpart K of this part, Moragne v. States Marine Lines, Inc.,
505, who are assigned to a unit §§ 536.153 through 536.157 (Claims 398 U.S. 375 (1970) and federal case
maintained by that state, involving tortfeasors other than law. Where general maritime law
commonwealth, territory, or the District nonappropriated fund employees), must provides no guidance, the general
of Columbia. See DA Pam 27–162, be based on the acts or omissions of a principles of U.S. tort law will apply.
paragraph 2–41. member of the armed forces, a member (c) The Foreign Claims Act. See
(d) Federal Disaster Relief Act. Within of a foreign military force within the subpart J of this part. The law of the
the United States a claim is not payable United States with which the United place of occurrence applies to the
if it is for damage to, or loss of, property States has a reciprocal claims resolution of claims. However, the law
or for personal injury or death arising agreement, or a federal civilian of damages set forth in § 536.139 will
out of debris removal by a federal employee. This does not include a serve as a guide.
agency or employee in carrying out the contractor of the United States. Apply (d) The Army Maritime Claims
provisions of the Federal Disaster Relief federal case law for interpretation. See Settlement Act. Maritime law applies.
Act, 42 U.S.C. 5173. See DA Pam 27– parallel discussion at DA Pam 27–162, (e) Damages not payable. Under all
162, paragraph 2–42. paragraph 2–46. subparts, property loss or damage refers
to actual tangible property. Accordingly, requirement for an affidavit of merit Note to § 536.53: For further discussion see
consequential damages, including, but should be cited. DA Pam 27–162, paragraph 2–59.
not limited to bail, interest (2) When the claimant or the legal
(prejudgment or otherwise), or court representative fails to respond in a § 536.54 Joint tortfeasors.
costs are not payable. Costs of timely manner to informal demands for When joint tortfeasors are liable, it is
preparing, filing, and pursuing a claim, documentary evidence, interviews, or DA policy to pay only the fair share of
including expert witness fees, are not an independent medical examination a claim attributable to the fault of the
payable. The payment of punitive (IME), make a written request. Such United States rather than pay the claim
damages, that is, damages in addition to written request provides notice to the in full and then bring suit against the
general and special damages that are claimant that failure to provide joint tortfeasor for contribution. If
otherwise payable, is prohibited. See substantiating evidence will result in an payment from a joint tortfeasor is not
DA Pam 27–162, paragraphs 2–56 and evaluation of the claim based only on forthcoming after the CJA’s demand, the
3–4b. information currently in the file. When, United States should settle for its fair
(f) Source of attorney’s fees. despite the government’s request, there share, provided the claimant is willing
Attorney’s fees are taken from the is insufficient information in the file to to hold the United States harmless.
settlement amount and not added permit evaluation, the claim will be Where a joint tortfeasor’s liability
thereto. They may not exceed 20 percent denied for failure to document it. greatly outweighs that of the United
of the settlement amount under any Failure to submit to an IME or sign an States, the claim should be referred to
subpart. authorization to use medical the joint tortfeasor for action.
Note to § 536.50: For further discussion see information protected by HIPAA, for
§ 536.55 Structured settlements.
DA Pam27–162, paragraph 2–51. review or evaluation by a source other
than claims personnel, are both grounds (a) The use of future periodic
§ 536.51 Collateral source rule. for denial for failure to document, payments, including reversionary
provided such evaluation is essential to medical trusts, is encouraged to ensure
Where permitted by applicable state
or maritime law, damages recovered the determination of liability or that the injured party is adequately
from collateral sources are payable damages. State a time limit, for example, compensated and able to meet future
under subparts D and H, but not under 30 or 60 days, to furnish the needs.
subparts C, E, F, or J of this part. For substantiation or expert opinion (1) It is necessary to ensure adequate
further discussion see DA Pam 27–162, required in a medical malpractice claim. care and compensation for a minor or
paragraph 2–57. (3) If, in exchange for complying with other incompetent claimant or
the government’s request for the unemployed survivor over a period of
§ 536.52 Subrogation.
foregoing information, the claimant or years.
Subrogation is the substitution of one the legal representative requests similar (2) A medical trust is necessary to
person in place of another with regard information from the file, the claimant ensure the long-term availability of
to a claim, demand or right. It should may be provided such information and funds for anticipated future medical
not be confused with a lien, which is an documentation as is releasable under care, the cost of which is difficult to
obligation of the claimant. Applicable the Federal Rules of Civil Procedure predict.
state law should be researched to (FRCP). Additionally, work product may (3) The injured party’s life expectancy
determine the distinction between be released if such release will help cannot be reasonably determined or is
subrogation and a lien. Subrogation settle the claim. See § 536.18. likely to be shortened.
claims are payable under subparts D and (b) Under subpart D of this part,
(b) An evaluation should be viewed
H, but not under subparts C, E, F or J structured settlements cannot be
from the claimant’s perspective. In other
of this part. For further discussion see required but are encouraged in
words, before denying a claim, first
DA Pam 27–162, paragraph 2–58. situations listed above or where state
determine whether there is any
law permits them. In the case of a
§ 536.53 Evaluation of claims—general reasonable basis for compromise.
minor, every effort should be made to
rules and guidelines. Certain jurisdictional issues and
insure that the minor, and not the
(a) Before claims personnel evaluate a statutory bases may not be open for
parents, receives the benefit of the
claim: compromise. The incident to service
settlement. Annuity payments at the age
(1) A claimant or claimant’s legal and FECA exclusions are rarely subject
of majority should be considered. If
representative will be furnished the to compromise, whereas the SOL is
rejected, a blocked bank account may be
opportunity to substantiate the claim by more subject to compromise. Factual
used.
providing essential documentary and legal disputes are compromisable,
(c) It is the policy of the Department
evidence according to the claim’s nature frequently providing a basis for limiting
of Justice never to discuss the tax-free
including, but not instead of, the damages, not necessarily grounds for
nature of a structured settlement.
following: medical records and reports, denial. Where a precise issue of dispute
witness statements, itemized bills and is identified and is otherwise Note to § 536.55: For further discussion,
paid receipts, estimates, federal tax unresolvable, mediation by a see DA Pam 27–162, paragraph 2–63.
returns, W–2 forms or similar proof of disinterested qualified person, such as a
loss of earnings, photographs, and federal judge, or foreign equivalent for § 536.56 Negotiations—purpose and
reports of appraisals or investigation. If claims arising under the FCA, should be extent.
necessary, request permission, through obtained upon agreement with the It is DA policy to settle meritorious
the legal representative, to interview the claimant or the claimant’s legal claims promptly and fairly through
claimant, the claimant’s family, representative. Contributory negligence direct negotiation at the lowest possible
proposed witnesses and treating health has given way to comparative level. The Army’s negotiator should not
care providers (HCPs). In a professional negligence in most United States admit liability as such is not necessary.
negligence claim, the claimant will jurisdictions. In most foreign countries, However, the settlement should reflect
submit an expert opinion when comparative negligence is the rule of diminished value where contributory
requested. State law concerning the law. negligence or other value-diminishing
factors exist. The negotiator should be action. ‘‘Approval authority’’ means the emergency partial payments in
thoroughly familiar with all aspects of officer empowered to settle, pay or personnel claims, which are not
the case, including the claimant’s compromise a claim in full or in part, governed by 10 U.S.C. 2736.
background, the key witnesses, the provided the claimant agrees. ‘‘Final (b) The Judge Advocate General
anticipated testimony and the action authority’’ means the officer (TJAG) and the Assistant Judge
appearance of the scene. There is no empowered to deny or make a final offer Advocate General (TAJAG) may make
substitute for the claims negotiator’s on a claim. Determining the proper advance payments in amounts not
personal study of, and participation in, officer empowered to approve or make exceeding $100,000; the Commander
the case before settlement negotiations final action on a claim depends on the USARCS, in amounts not exceeding
begin. If settlement is not possible due claims statute involved and any $25,000, and the authorities designated
to the divergence in the offers, refine the limitations that apply under that statute. in §§ 536.78(b)(4) and (b)(5) and
issues as much as possible in order to DA Pam 27–162, paragraph 2–69, 536.101, in amounts not exceeding
expedite any subsequent suit. Mediation outlines how various authority is $10,000, subject to advance
should be used if the divergence is due delegated among offices. coordination with USARCS, if the
to an issue of law affecting either estimated total value of the claim
§ 536.60 Splitting property damage and
liability or damages. For further personal injury claims.
exceeds their monetary authority.
discussion see DA Pam 27–162, Requests for advance payments in
Normally, a claim will include all
paragraph 2–64. excess of $10,000 will be forwarded to
damages that accrue by reason of the
USARCS for processing.
§ 536.57 Who should negotiate. incident. Where a claimant has a claim (c) Under subpart J of this part, three-
An AAO or, when delegated for property damage and personal injury member foreign claims commissions
additional authority, an ACO or a CPO, arising from the same incident, the may make advance payments under the
has authority to settle claims in an property damage claim may be paid, FCA in amounts not exceeding $10,000,
amount exceeding the monetary under certain circumstances, prior to subject to advance coordination with
authority delegated by regulation. It is the filing of the personal injury claim. USARCS if the estimated total value of
DA policy to delegate USARCS The personal injury claim may be filed the claim exceeds their monetary
authority, on a case-by-case basis, to an later provided it is filed within the authority.
ACO or a CPO possessing the applicable statute of limitations. When (d) An advance payment, not
appropriate ability and experience. Only both property damage and personal exceeding $100,000, is authorized in the
an attorney should negotiate with a injury arise from the same incident, the limited category of claims or potential
claimant’s attorney. Negotiations with property damage claim may be paid to claims considered meritorious under
unrepresented claimants may be either the claimant or, under subparts D subparts C, F or J of this part, that result
conducted by a non-attorney, under the or H of this part, the insurer and the in immediate hardship. An advance
supervision of an attorney. For further same claimant may receive a subsequent payment is authorized only under the
discussion see DA Pam 27–162, payment for personal injury. Only under following circumstances:
paragraph 2–65. subparts D or H of this part may the (1) The claim, or potential claim, must
insurer receive subsequent payment for be determined to be cognizable and
§ 536.58 Settlement negotiations with subrogated medical bills and lost
unrepresented claimants.
meritorious under the provisions of
earnings when the personal injury claim subparts C, F or J of this part.
All aspects of the applicable law and is settled. The primary purpose of (2) An immediate need for food,
procedure, except the amount to be settling an injured claimant’s property clothing, shelter, medical or burial
claimed, should be explained to both damage claim before settling the expenses, or other necessities exists.
potential and actual claimants. The personal injury claim is to pay the (3) The payee, so far as can be
negotiator will ensure that the claimant claimant for vehicle damage determined, would be a proper
is aware of whether the negotiator is an expeditiously and avoid costs associated claimant, including an incapacitated
attorney or a non-attorney, and that the with delay such as loss of use, loss of claimant’s spouse or next-of-kin.
negotiator represents the United States. business, or storage charges. The (4) The total damage sustained must
As to claims within USARCS’ monetary Commander USARCS’ approval must be exceed the amount of the advance
authority, the chronology and details of obtained whenever the estimated value payment.
negotiations should be memorialized of any one claim exceeds $25,000, or the (5) A properly executed advance
with a written record furnished to the value of all claims, actual or potential, payment acceptance agreement has been
claimant. The claimant should arising from the incident exceeds obtained. This acceptance agreement
understand that it is not necessary to $50,000; however, if the claim arises must state that it does not constitute an
hire an attorney, but when an attorney under the FTCA or AMCSA, only if the admission of liability by the United
is needed, the negotiator should amount claimed exceeds $50,000, or States and that the amount paid shall be
recommend hiring one. In a claim where $100,000 per incident. deducted from any subsequent award.
liability is not an issue, the claimant (e) There is no statutory authority for
should be informed that if an attorney § 536.61 Advance payments.
making advance payments for claims
is retained, the claimant should attempt (a) This section implements 10 U.S.C. payable under subparts D or H of this
to negotiate an hourly fee for 2736 (Act of September 8, 1961 (75 Stat. part.
determination of damages only. For 488)) as amended by Public Law 90–521
(82 Stat. 874); Public Law 98–564 (90 Note to § 536.61: For further discussion see
further discussion see DA Pam 27–162, DA Pam 27–162, paragraph 2–71.
paragraph 2–68. Stat. 2919); and Public Law 100–465
(102 Stat. 2005)). No new liability is

§ 536.59 Settlement or approval authority. created by 10 U.S.C. 2736, which merely § 536.62 Action memorandums.
‘‘Settlement authority’’ is a statutory permits partial advance payments, only (a) When required. (1) All claims will
term (10 U.S.C. 2735) meaning that under subparts C, F or J of this part, on be acted on prior to being closed except
officer authorized to approve, deny or claims not yet filed. See AR 27–20, for those that are transferred. For claims
compromise a claim, or make final paragraph 11–18 for information on on which suit is filed before final action,
see § 536.66. A settlement authority may (3) DA Form 7500 (Tort Claim not be written into the settlement, only
deny or pay in full or in part any claim Payment Report) will be used for all the 20% limitation on attorney fees will
in a stated amount within his or her payments from the Defense Finance and be included.
delegated authority. An approval Accounting Service (DFAS), for (4) Claims involving an estate or
authority may pay in full or in part, but example, FTCA claims of $2500 or less, personal representative of an estate. On
may not deny, a claim in a stated FCA and MCA claims of $100,000 or claims presented on behalf of a
amount within his or her delegated less and all maritime claims regardless decedent’s estate, the law of the state
authority. If any one claim arising out of of amount. having jurisdiction should be reviewed
the same incident exceeds a settlement (4) Financial Management Service to determine who may bring a claim on
or approval authority’s monetary (FMS) Forms 194, 196 and 197 will be behalf of the estate, if court appointment
jurisdiction, all claims from that used for all payments from the of an estate representative is required,
incident will be forwarded to the Judgment Fund, for example, FTCA and if court approval of the settlement
authority having jurisdiction. claims exceeding $2,500, MCA and FCA is required.
(2) In any claim which must be claims exceeding $100,000. (d) Signature requirements. (1) Except
supported by an expert opinion as to (5) An alternative settlement as noted below, all settlement
duty, negligence, causation or damages, agreement will be used when the agreements will be signed individually
an expert opinion must be submitted claimant is represented by an attorney, by each claimant. A limited power of
upon request. All opinions must meet or when any of the above settlement attorney signed by the claimant
the standards set forth in Federal Rule agreement forms are legally insufficient specifically stating the amount being
of Evidence 702. (such as when multiple interests are accepted and authorizing an attorney at
present, a hold harmless agreement is law or in fact to sign is acceptable when
(3) An action memorandum is
reached, or there is a structured the claimant is unavailable to sign. The
required for all final actions regardless settlement). For further discussion, see signatures of the administrator or
of whether payment is made DA Pam 27–162, paragraph 2–73c. executor of the estate, appointed by a
electronically. The memorandum will (b) Unconditional settlement. The court of competent jurisdiction or
contain a sufficient rendition of the settlement agreement must be authorized by local law, are required.
facts, law or damages to justify the unconditional. The settlement The signatures of all adult beneficiaries,
action being taken. (A model action is agreement represents a meeting of the acknowledging the settlement, should
posted on the USARCS Web site; for the minds. Any changes to the agreement be obtained unless permission is given
address see § 536.2(a).) must be agreed upon by all parties. The by Commander USARCS. Court
(b) Memorandum of Opinion. Upon return of a proffered settlement approval must be obtained where
completion of the investigation, the agreement with changes written thereon required by state law. If not required by
ACO or CPO will prepare a or on an accompanying document state law, the citation of the state statute
memorandum of opinion in the format represents, in effect, a counteroffer and will accompany the payment document.
prescribed at DA Pam 27–162, when a must be resolved. Even if the claimant Additionally, all adult heirs will sign as
claim is forwarded to USARCS for signs the agreement and objects to its acknowledging the settlement. In lieu
action. This requirement can be waived terms, either in writing or verbally, the thereof, where the adult heirs are not
by the USARCS AAO. settlement is defective and the objection available, the estate representative will
(c) Claim brought by a claims must be resolved. Otherwise a final offer acknowledge that all heirs have been
authority or superior. A claim filed by should be made. informed of the settlement.
an approval or settlement authority or (c) Court approval. (1) When required. (2) Generally, only a court-appointed
his or her superior officer in the chain Court approval is required in a wrongful guardian of a minor’s estate, or a person
of command or a family member of death claim, or where the claimant is a performing a similar function under
either will be investigated and minor or incompetent. The claimant is court supervision, may execute a
forwarded for final action, without responsible to obtain court approval in binding settlement agreement on a
recommendation, to the next higher a jurisdiction that is locus of the act or minor’s claim. In the United States, the
settlement authority (in an overseas omission giving rise to the claim or in law of the state where the minor resides
area, this includes a command claims which the claimant resides. The court or is domiciled will determine the age
service) or to USARCS. must be a state or local court, including of majority and the nature and type of
Note to § 536.62: For further discussion see a probate court. If the claimant can court approval that is needed, if any.
DA Pam 27–162, paragraph 2–72. show that court approval is not required The age of majority is determined by the
under the law of the jurisdiction where age at the time of settlement, not the
§ 536.63 Settlement agreements.
the incident occurred or where the date of filing.
claimant resides, the citation of the (3) For claims arising in foreign
(a) When required. (1) A claimant’s statute will be provided and accompany countries where the amount agreed
acceptance of an award constitutes full the payment documents. upon does not exceed $2,500, the
and final settlement and release of any (2) Attorney representation. If the requirement to obtain a guardian may be
and all claims against the United States claimant is a minor or incompetent, the eliminated. For settlements over $2,500,
and its employees, except as to claimant must be represented by a whether or not the claim arose in the
payments made under §§ 536.60 and lawyer. If not already represented, the United States, refer to applicable local
536.61. A settlement agreement is claimant should be informed that the law, including the law of the foreign
required prior to payment on all tort requirement is mandatory unless state country where the minor resides.
claims, whether the claim is paid in full or local law expressly authorizes the (4) In claims where the claimant is an
or in part. parents or a person in loco parentis to incompetent, and for whom a guardian
(2) DA Form 1666 (Claims Settlement settle the claim. has been appointed by a court of
Agreement) may be used for payment of (3) Costs. The cost of obtaining court competent jurisdiction, the signature of
COE claims of $2500 or less or all Army approval will be factored into the the guardian must be obtained. In cases
Central Insurance Fund and Army and amount of the settlement; however, the in which competence of the claimant
Air Force Exchange Service claims. amount of the costs and other costs will appears doubtful, a written statement by
the plaintiff’s attorney and a member of recommending a final offer under the (e) Upon request, the settlement
the immediate family should be applicable statute. The final offer notice authority may extend the six-month
obtained. will contain sufficient detail to outline reconsideration or 60-day appeal period
(5) Settlement agreements involving each element of damages as well as provided good cause is shown. The
subrogated claims must be executed by discuss contributory negligence, the claimant will be notified as to whether
a person authorized by the corporation SOL or other reasons justifying a the request is granted under the FTCA
or company to act in its behalf and compromise offer. The offer letter and that the request precludes the filing
accompanied by a document signed by should include language indicating that of suit under the FTCA for 6 months.
a person authorized by the corporation if the offer is not accepted within a Only one reconsideration is authorized.
or company to delegate execution named time period, for example, 30 or Accordingly, that claimant should be
authority. 60 days, the offer is withdrawn and the informed of the need to make all
(6) If it is believed that the foregoing claim is denied. submissions timely.
requirements are materially impeding (b) A final offer under subpart D of
settlement of the claim, bring the matter this part will notify the claimant of the Note to § 536.64: For further discussion see
to the attention of the Commander right to sue, not later than six months
USARCS for appropriate resolution. from the notice’s date of mailing, and of
§ 536.65 Denial notice.
(e) Attorneys’ fees and costs. (1) the right to request reconsideration. The
Attorneys’ fees for all subparts fall procedures for processing a request for (a) Where there is no reasonable basis
under the American Rule and are reconsideration are set forth in § 536.89. for compromise, a settlement authority
payable only out of the up front cash in (c) Under subparts C or F of this part, will deny a claim within his or her
any settlement. Attorneys’ fees will be the notice will contain an appeal monetary jurisdiction or forward the
stated separately in the settlement paragraph. A similar procedure will be claim recommending denial to the
agreement as a sum not to exceed 20% followed in subparts E and H of this settlement authority that has
of the award. part. Subpart J of this part sets forth its jurisdiction. The denial notice will
(2) Costs are a matter to be determined own procedures for FCA final offers. contain instructions on the right to sue
solely between the attorney and the The procedures for processing an appeal or request reconsideration. The notice
claimant and will not be set forth or are set forth in § 536.79 of this part. The will state the basis for denial. No
otherwise enumerated in the settlement letter must inform claimants of the admission of liability will be made. A
agreement. following: notice to an unrepresented claimant
(f) Claims involving workers’ (1) They must accept the offer within should detail the basis for denial in lay
compensation carriers. The settlement 60 days or appeal. The appeal should language sufficient to permit an
of a claim involving a claimant who has state a counteroffer. informed decision as to whether to
elected to receive workers’ (2) The identity of the official who request appeal or reconsideration. In the
compensation benefits under local law will act on the appeal, and the interest of deterring reconsideration,
may require the consent of the workers’ requirement that the appeal will be appeal or suit, a denial notice may be
compensation insurance carrier, and in addressed to the settlement authority releasable under the Federal Rules of
certain jurisdictions, the state agency who last acted on the claim. Civil Procedure or by the work product
that has authority over workers’ (3) No form is prescribed for the documents doctrine.
compensation awards. Accordingly, appeal, but the notice of appeal must (b) Regardless of the claim’s nature or
claims approval and settlement fully set forth the grounds for appeal or the statute under which it may be
authorities should be aware of local state that it is based on the record as it considered, letters denying claims on
requirements. exists at the time of denial or final offer. jurisdictional grounds that are valid,
(g) Claims involving multiple (4) The appeal must be postmarked certain, and not easily overcome (and
interests. Where two or more parties not later than 60 days after the date of for this reason no detailed investigation
have an interest in the claim, obtain mailing of the final notice of action. If as to the merits of the claim was
signatures on the settlement agreement the last day of the appeal period falls on conducted), must state that denial on
from all parties. Examples are where a Saturday, Sunday, or legal holiday, as such grounds is not to be construed as
both the subrogee and subrogor file a specified in Rule 6a of the Federal Rules an opinion on the merits of the claim or
single claim for property damage, where of Civil Procedure, the following day an admission of liability. In medical
both landlord and tenant file a claim for will be considered the final day of the malpractice claims, the denial should
damage to real property, or when a POV appeal period. state that the file is being referred to
is leased, both the lessor or lessee. (d) Where a claim for the same injury U.S. Army Medical Command for
(h) Claims involving structured falls under both subparts C and D of this review. If sufficient factual information
settlements. All settlement agreements part (the MCA and the FTCA), and the exists to make a tentative ruling on the
involving structured settlements will be denial or final offer applies equally to merits of the claim, liability may be
prepared by the Tort Claims Division, each such claim, the letter of expressly denied.
USARCS, and approved by the Chief or notification must advise the claimant
that any suit brought on any portion of Note to § 536.65: See § 536.53, on denying
Deputy Chief, Tort Claims Division. a claim for failure to substantiate. In
the claim filed under the FTCA must be addition, the procedures and rules in DA
§ 536.64 Final offers. brought not later than six months from Pam 27–162, paragraph 2–69, settlement and
(a) When claims personnel believe the date of mailing of the notice of final approval authority, apply equally to the
that a claim should be compromised, offer and any appeal under subpart C of denial of claims. See also DA Pam 27–162,
and after every reasonable effort has this part must be made as stated in paragraph 2–75.
been made to settle at less than the paragraph (c) of this section. Further,
amount claimed, a settlement authority the claimant must be advised that if suit § 536.66 The ‘‘Parker’’ denial.
will make a written final offer within is brought, action on any appeal under (a) When suit is filed before final
his or her monetary jurisdiction or subpart C of this part will be held in action is taken on a subpart D of this
forward the claim to the authority abeyance pending final determination of part claim, a denial letter will be issued
having sufficient monetary jurisdiction, such suit. only upon request of DOJ or the trial
attorney. If suit is filed prematurely or file will be retained until final action Judgment Fund. Only final payments
in error, the claimant may be requested has been taken on all other claims that are not payable out of agency funds
to withdraw the suit without prejudice. arising out of the same incident. If any are allowable, per the Treasury
Such a request must be coordinated single claim arising out of the same Financial Manual, Volume I, part 6,
with the trial attorney. incident must be forwarded to higher Chapter 3110, at Section 3115,
(b) Claimants who have filed authority for final action, all claims files September 2000 (available at http://
companion claims should be notified for that incident will be forwarded at www.fms.treas.gov/tfm/vol1/
that, due to suit being filed, no action the same time. For further discussion v1p6c310.pdf). Threshold amounts for
can be taken pending the outcome of see DA Pam 27–162, paragraph 2–79. payment from the judgment fund vary
suit and they may file suit if they wish. according to the subpart and statutes
§ 536.70 Preparation and forwarding of
Note to § 536.66: For further discussion see payment vouchers. under which a claim is processed. To
DA Pam 27–162, paragraph 2–76. determine the threshold amount for any
(a) An unrepresented claimant will be
given payment procedure one must
listed as the sole payee. Joint claimants
§ 536.67 Mailing procedures. arrive at a sum of all awards for all
will not be listed since settlement
Thirty or sixty day letters seeking claims arising out of that incident,
agreements must specify the amount
information from claimants, final offers including derivative claims. A joint
payable to each claimant individually
and denial notices are time-sensitive as amount is not acceptable. A claim for
and each must be issued a separate
they require a claimant to take injury to a spouse or a child is a
check.
additional action within certain time (b) When a claimant is represented by separate claim from one for loss of
limits. Accordingly, follow procedures an attorney, only one payment voucher consortium or services by a spouse or
to ensure that the date of mailing and will be issued with the claimant and the parent. The monetary limits of $2,500
receipt of a request for reconsideration attorney as joint payees. The payment set forth in subpart D and $100,000 set
are documented. Use certified mail with will be sent to the office of the forth in subparts C, F or J of this part,
return receipt requested (or registered claimant’s attorney. The attorney of apply to each separate claim.
mail, if being sent to a foreign country record, either an individual or firm (b) A subpart D, E, or subpart G of this
other than by the military postal system) designated by the claimant, will be the part, §§ 536.107 through 536.113 claim
to mail such notices. Upon receipt, an co-payee. If claimant has been for $2,500 or less is paid from the open
appeal or request for reconsideration represented by other attorneys in the claims allotment (see AR 27–20
will be date-time stamped, logged in, same claim, such attorneys will not be paragraph 13–6b(1)) or, if arising from a
and acknowledged as set forth in listed as payees, even if they have a lien. project funded by a civil works
§ 536.68. Satisfaction of any such fee will be a appropriation, from COE civil works
matter between the claimant and such funds. The Department of the Treasury
Note to § 536.67: See also AR 27–20, attorney. If payment is made by pays any settlement exceeding $2,500 in
paragraph 13–5, and DA Pam 27–162, its entirety, from the Judgment Fund.
electronic transfer, the funds will be
paragraph 2–77.
paid into the account of the claimant. However, if a subpart G of this part,
However, if requested, the payment may §§ 536.107–536.113 claim is treated as a
§ 536.68 Appeal or reconsideration.
be made into the attorney’s escrow noncombat activity claim, payment is
(a) An appeal or a request for account provided the claimant has made as set forth in paragraph (c) of this
reconsideration will be acknowledged provided written authorization. section.
in writing. A request for reconsideration (c) In a structured settlement the (c) The first $100,000 for each
under subpart D of this part invokes the structured settlement broker will be the claimant on a claim settled under
six-month period during which suit sole payee, who is authorized to issue subparts C, F or J of this part is paid
cannot be filed, 28 CFR 14.9(b). The checks for the amounts set forth in the from the open claims allotment. Any
acknowledgment letter will underscore settlement agreement. The up-front cash amount over $100,000 is paid out of the
this restriction. payment may be deposited into an
(b) Where the contents of the appeal Judgment Fund.
escrow account established for the (d) If not over $500,000, a claim
or request for reconsideration indicate, benefit of the claimant.
additional investigation will be arising under subpart H of this part is
(d) If a claimant is a minor or has been
conducted and the original action paid from the open claims allotment or
declared incompetent by a court or
changed if warranted. Except for subpart other authority authorized to do so, civil works project funds as appropriate.
J of this part, which sets forth separate payment will be made to the court- A claim exceeding $500,000 is paid
rules for FCCs, if the relief requested is appointed guardian of the minor or entirely by a deficiency appropriation.
not warranted the settlement authority incompetent, at a financial institution (e) AAFES or NAFI claims are paid
will forward the claim to a higher approved by the court approving the from nonappropriated funds, except
settlement authority with a claims settlement. when such claims are subject to
memorandum of opinion (see § 536.62) (e) If the claimant is representing a apportionment between appropriated
stating the reasons why the request is deceased’s estate on a wrongful death and nonappropriated funds. See DA
invalid. claim, or a survival action on behalf of Pam 27–162, paragraph 2–80h.
Note to § 536.68: See also DA Pam 27–162,
the deceased, the payment will be made (f) COE claims arising out of projects
paragraph 2–78. to the court-appointed representative of not funded out of civil works project
the estate. No payment will be made funds are payable from the open claims
§ 536.69 Retention of file. directly to the estate. allotment not to exceed $2,500 for
After final action has been taken, the Note to § 536.70: See also § 536.63 and DA
subpart D claims and $100,000 for
settlement authority will retain the file Pam 27–162, paragraphs 2–73 and 2–81. claims arising from subparts C, F or J of
until at least one month after either the this part and from the Judgment Fund,
period of filing suit or the appeal has § 536.71 Fund sources. over such amounts.
expired and until all data has been (a) 31 U.S.C. 1304 sets forth the type Note to § 536.71: For further discussion see
entered into the database. A paid claim and limits of claims payable out of the DA Pam 27–162, paragraph 2–80.
§ 536.72 Finality of settlement. States at the time of the incident giving policy, or otherwise contrary to the
A claimant’s acceptance of an award, rise to the claim. See § 536.136(b). basic intent of the governing statute (10
except for an advance payment or a split U.S.C. 2733); for example, claims for
§ 536.75 Claims payable under the Military property damage or loss or personal
payment for property damage only, Claims Act.
constitutes a release of the United States injury or death of inhabitants of
(a) General. Unless otherwise unfriendly foreign countries or
and its employees from all liability.
prescribed, a claim for personal injury, individuals considered to be unfriendly
Where applicable, a release should
death, or damage to, or loss or to the United States. When a claim is
include the ARNG or the sending State.
destruction of, property is payable considered not payable for the reasons
For further discussion see DA Pam 27–
under this subpart when: stated in this section, it will be
162, paragraph 2–82.
(1) Caused by an act or omission of
forwarded for appropriate action to the
Subpart C—Claims Cognizable Under military personnel or civilian employees
Commander USARCS with the
the Military Claims Act of the DA or DOD, acting within the
recommendations of the responsible
scope of their employment, that is
claims office.
§ 536.73 Statutory authority for the Military determined to be negligent or wrongful; (g) Claims presented by a national, or
Claims Act. or a corporation controlled by a national,
The statutory authority for this (2) Incident to the noncombat
of a country at war or engaged in armed
subpart is contained in the Act of activities of the armed services.
conflict with the United States, or any
August 10, 1956 (70A Stat. 153, 10 (b) Property. Property that may be the
country allied with such enemy country
U.S.C. 2733), commonly referred to as subject of claims for loss or damage
unless the appropriate settlement
the Military Claims Act (MCA), as under this subpart includes:
(1) Real property used and occupied authority determines that the claimant
amended by 90–521, September 1968 is, and at the time of the incident was,
(82 Stat. 874); Public Law 90–522, under lease (express, implied, or
otherwise). See § 536.34(m) and friendly to the United States. A prisoner
September 1968 (82 Stat. 875); Public of war or an interned enemy alien is not
Law 90–525, September 1968 (82 Stat. paragraph 2–15m of DA Pam 27–162.
(2) Personal property bailed to the excluded from bringing an otherwise
877); Public Law 93–336, July 8, 1974 payable claim for damage, loss, or
(88 Stat. 291); Public Law 98–564, government under an agreement
(express or implied), unless the owner destruction of personal property in the
October 1984 (98 Stat. 2918); and Public custody of the government.
Law 103–337, October 1994 (108 Stat. has expressly assumed the risk of
damage or loss. (h) A claim for damages or injury,
2664). which a receiving State should
(3) Registered or insured mail in the
§ 536.74 Scope for claims under the DA’s possession, even though the loss adjudicate and pay under an
Military Claims Act. was caused by a criminal act. international agreement, unless a
(a) The guidance set forth in this (4) Property of a member of the armed consistent and widespread alternative
subpart applies worldwide and forces that is damaged or lost incident process of adjudicating and paying such
prescribes the substantive bases and to service, if such a claim is not payable claims has been established within the
special procedural requirements for the as a personnel claim under AR 27–20, receiving State. See DA Pam 27–162,
settlement of claims against the United chapter 11. paragraph 3–4a, for further discussion of
States for death or personal injury, or (c) Maritime claims. Claims that arise the conditions of waiver.
on the high seas or within the territorial (i) Claims listed in §§ 536.42, 536.43,
damage to, or loss or destruction of,
waters of a foreign country are payable 536.44, 536.45, and 536.46 of this part,
property:
unless settled under subpart H of this except for the exclusion listed in
(1) Caused by military personnel or
part. § 536.45(k). Additionally, the exclusions
civilian employees (enumerated in
in §§ 536.45(a), (b), (e) and (k) do not
§ 536.23(b)) acting within the scope of § 536.76 Claims not payable under the apply to a claim arising incident to
their employment, except for non- Military Claims Act. noncombat activities.
federalized Army National Guard (a) Those resulting wholly from the (j) Claims based on strict or absolute
soldiers as explained in subpart F of this claimant’s or agent’s negligent or liability and similar theories.
part; or wrongful act. (See § 536.77(a)(1)(i) on (k) Claims payable under subparts D
(2) Incident to the noncombat contributory negligence). or J of this part, or under AR 27–20,
activities of the armed services (see AR (b) Claims arising from private or chapter 11.
27–20, Glossary). domestic obligations rather than from (l) Claims involving DA vehicles
(b) A tort claim arising in the United government transactions. covered by insurance in accordance
States, its commonwealths, territories, (c) Claims based solely on with requirements of a foreign country
and possessions may be settled under compassionate grounds. unless coverage is exceeded or the
this subpart if the Federal Tort Claims (d) A claim for any item, the insurer is bankrupt. When an award is
Act (FTCA) does not apply to the type acquisition, possession, or otherwise payable and an insurance
of claim under consideration or if the transportation of which was in violation settlement is not reasonably available, a
claim arose incident to noncombat of DA directives, such as illegal war field claims office should request
activities. For example, a claim by a trophies. permission from the Commander
service member for property loss or (e) Claims for rent, damage, or other USARCS to pay the award, provided
damage incident to service may be payments involving the acquisition, use, that an assignment of benefits is
settled if the loss arises from a tort and possession or disposition of real obtained.
is not payable under AR 27–20, Chapter property or interests therein by and for
11. the Department of the Army (DA) or § 536.77 Applicable law for claims under
(c) A tort claim arising outside the Department of Defense (DOD). See the Military Claims Act.
United States may be settled under this § 536.34(m) and paragraph 2–15m of DA (a) General principles. (1) Tort claims
subpart only if the claimant has been Pam 27–162. excluding claims arising out of
determined to be an inhabitant (f) Claims not in the best interests of noncombat activities. (i) In determining
(normally a resident) of the United the United States, contrary to public liability, such claims will be evaluated
under general principles of law party/decedent, was in the zone of (ii) Future medical, hospital, and
applicable to a private individual in the danger and manifests physical injury for related expenses. When requested, a
majority of American jurisdictions, the emotional distress. Claims for medical examination is required.
except where the doctrine of intentional infliction of emotional (iii) Past lost earnings as substantiated
contributory negligence applies. The distress will be evaluated under general by documentation from both the
MCA requires that contributory principles of American law as set forth employer and a physician.
negligence be interpreted and applied in paragraph (a)(1)(i) of this section and (iv) Loss of earning capacity and
according to the law of the place of the will be considered as an element of ability to perform services, as
occurrence, including foreign (local) law damages under paragraph (b)(3)(ii) of substantiated by acceptable medical
for claims arising in foreign countries this section. Claims for either negligent proof. When requested, past federal
(see 10 U.S.C. 2733(b)(4)). or intentional infliction of emotional income tax forms must be submitted for
(ii) Claims are cognizable when based distress are excluded when they arise the previous five years and the injured
on those acts or omissions recognized as out of assault, battery, false arrest, false person must undergo an independent
tortious by a majority of jurisdictions imprisonment, malicious prosecution, medical examination (IME). Estimates of
that require proof of duty, negligence, abuse of process, libel, or slander, as future losses must be discounted to
and proximate cause resulting in defined in § 536.45(h). present value at a discount rate of one
compensable injury or loss subject to (viii) In a claim for personal injury or to three percent after deducting for
the exclusions set forth at § 536.76. wrongful death, the total award for non- income taxes. When a medical trust
Strict or absolute liability and similar economic damages to any direct victim providing for all future care is
theories are not grounds for liability and all persons, including those established, personal consumption may
under this subpart. derivative to the claim, who claim be deducted from future losses.
(2) Tort claims arising out of injury by or through that victim will not (v) Compensation paid to a person for
noncombat activities. Claims arising out exceed $500,000. However, separate essential household services that the
of noncombat activities under claims for emotional distress considered injured person can no longer provide for
§§ 536.75(a)(2) and (b) are not tort under paragraph (b)(1) of this section himself or herself. These costs are
claims and require only proof of are not subject to the $500,000 cap for recoverable only to the extent that they
causation. However, the doctrine of the wrongful death claim as they are not neither have been paid by, nor are
contributory negligence will apply, to included in the wrongful death claim; recoverable from, insurance.
the extent set forth in 10 U.S.C. rather, each is a separate claim with its (3) Non-economic damages. Elements
2733(b)(4) and paragraph (a)(1)(i) of this own $500,000 cap under paragraph of non-economic damages are limited to
section. (b)(3)(ii) of this section. Continuous or the following:
(3) Principles applicable to all subpart repeated exposure to substantially the (i) Past and future conscious pain and
C claims. (i) Interpretation of meanings same or similar harmful activity or suffering. This element is defined as
and construction of questions of law conditions is treated as one incident for physical discomfort and distress as well
under the MCA will be determined in the purposes of determining the extent as mental and emotional trauma. Loss of
accordance with federal law. The of liability. If the claim accrued prior to enjoyment of life, whether or not it is
formulation of binding interpretations is September 1, 1995, these limitations do discernible by the injured party, is
delegated to the Commander USARCS, not apply. Any such limitation in the compensable. The inability to perform
provided that the statutory provisions of law of the place of occurrence will daily activities that one performed prior
the MCA are followed. apply. to injury, such as recreational activities,
(ii) Scope of employment will be
(b) Personal injury claims. (1) Eligible is included in this element. Supportive
determined in accordance with federal
claimants. Only the following may medical records and statements by
law. Follow guidance from reported
claim: health care personnel and acquaintances
FTCA cases. The formulation of a
(i) Persons who suffer physical are required. When requested, the
binding interpretation is delegated to
injuries or intentional emotional claimant must submit to an interview.
the Commander USARCS, provided the
distress, but not subrogees (when (ii) Emotional distress. Emotional
statutory provisions of the MCA are
claiming property loss or damage, distress under the conditions set forth in
followed.
(iii) The collateral source doctrine is medical expenses or lost earnings); see paragraph (a)(3)(vii) of this section.
not applicable. paragraph (a)(3)(iii) of this section. (iii) Physical disfigurement. This
(iv) The United States will only be (ii) Spouses for loss of consortium, element is defined as impairment
liable for the portion of loss or damage but not parent-child or child-parent loss resulting from an injury to a person that
attributable to the fault of the United of consortium; causes diminishment of beauty or
States or its employees. Joint and (iii) Members of the immediate family symmetry of appearance rendering the
several liability is inapplicable. who were in the zone of danger of the person unsightly, misshapen, imperfect,
(v) No allowance will be made for injured person as defined in paragraph or deformed. A medical statement and
court costs, bail, interest, inconvenience (a)(3)(vii) of this section. photographs, documenting claimant’s
or expenses incurred in connection with (2) Economic damages. Elements of condition, may be required.
the preparation and presentation of the economic damage are limited to the (iv) Loss of consortium. This element
claim. following: is defined as conjugal fellowship of
(vi) Punitive or exemplary damages (i) Past expenses, including medical, husband and wife and the right of each
are not payable. hospital and related expenses actually to the company, society, cooperation,
(vii) Claims for negligent infliction of incurred. Nursing and similar services and affection of the other in every
emotional distress may only be furnished gratuitously by a family conjugal relation.

entertained when the claimant suffered member are compensable. Itemized bills (c) Wrongful death claims. The law of
physical injury arising from the same or other suitable proof must be the place of the incident giving rise to
incident as the claim for emotional furnished. Expenses paid by, or the claim will apply to claims arising in
distress, or the claimant is the recoverable from, insurance or other the United States, its commonwealths,
immediate family member of an injured sources are not recoverable. territories or possessions.
(1) Claimant. (i) Only one claim may emotional distress to survivors arising amount claimed, and to disapprove or
be presented for a wrongful death. It out of the circumstances of a wrongful make a final offer in a claim presented
shall be presented by the decedent’s death are personal injury claims falling in an amount not exceeding $25,000.
personal representative on behalf of all under § 536.77(b)(3). (5) A head of an area claims office
parties in interest. The personal (d) Property damage claims. The (ACO) is delegated authority to pay up
representative must be appointed by a following provisions apply to all claims to $25,000 in settlement of a claim,
court of competent jurisdiction prior to arising in the United States, its regardless of the amount claimed, and to
any settlement and must agree to make commonwealths, territories and disapprove or make a final offer in a
distribution to the parties in interest possessions. claim presented in an amount not
under court jurisdiction, if required. (1) Such claims are limited to damage exceeding $25,000. A head of a claims
(ii) Parties in interest are the surviving to, or loss of, tangible property and costs processing office (CPO) with approval
spouse, children, or dependent parents directly related thereto. Consequential authority is delegated authority to
to the exclusion of all other parties. If damages are not included. (See approve, in full or in part, claims
there is no surviving spouse, children, § 536.50(e) and DA Pam 27–162, presented for $5,000 or less, and to pay
or dependent parents, the next of kin paragraph 2–56a.) claims regardless of the amount
will be considered a party or parties in (2) Proper claimants are described in claimed, provided an award of $5,000 or
interest. A dependent parent is one who § 536.27. Claims for subrogation are less is accepted in full satisfaction of the
meets the criteria set forth by the excluded. (See § 536.27(e)). However, claim.
Internal Revenue Service to establish there is no requirement that the (6) Authority to further delegate
eligibility for a DOD identification card. claimant use personal casualty payment authority is set forth in
(2) Economic loss. Elements of insurance to mitigate the loss. § 536.3(g)(1) of this part. For further
economic damages are limited to the (3) Allowable elements of damages discussions also related to approval,
following: and measure of proof (additions to these settlement and payment authority see
(i) Loss of monetary support of a elements are permissible with also paragraph 2–69 of DA Pam 27–162.
family member from the date of injury concurrence of the Commander (c) Settlement of multiple claims
causing death until expiration of USARCS). These elements are discussed arising from a single incident. (1) Where
decedent’s worklife expectancy. When in detail in DA Pam 27–162, paragraph a single act or incident gives rise to
requested, the previous five years 2–54. multiple claims cognizable under this
federal income tax forms must be (i) Damages to real property. subpart, and where one or more of these
submitted. Estimates must be (ii) Damage to or loss of personal claims apparently cannot be settled
discounted to present value at one to property, or personal property that is within the monetary jurisdiction of the
three percent after deducting for taxes not economically repairable. authority initially acting on them, no
and personal consumption. Loss of (iii) Loss of use. final offer will be made. All claims will
retirement benefits is compensable and (iv) Towing and storage charges. be forwarded, along with a
similarly discounted after deductions. (v) Loss of business or profits. recommended disposition, to the
(ii) Loss of ascertainable (vi) Overhead. authority who has monetary jurisdiction
contributions, such as money or gifts to over the largest claim for a
§ 536.78 Settlement authority for claims determination of liability. However,
other than family member claimants as
under the Military Claims Act. where each individual claim, including
substantiated by documentation or
statements from those concerned. (a) Authority of the Secretary of the derivative claims, can be settled within
(iii) Loss of services from date of Army. The Secretary of the Army, the the monetary authority initially acting
injury to end of life expectancy of the Army General Counsel, as the on them, and none are subject to denial,
decedent or the person reasonably Secretary’s designee, or another all such claims may be settled even
expected to receive such services, designee of the Secretary of the Army though the total amount exceeds the
whichever is shorter. may approve settlements in excess of monetary jurisdiction of the approving
(iv) Expenses as set forth in paragraph $100,000. or settlement authority.
(b)(2)(i) of this section. In addition, (b) Delegations of authority. (1) (2) If such authority determines that
burial expenses are allowable. Expenses Denials and final offers made under the federal liability is established, he or she
paid by, or recoverable from, insurance delegations set forth herein are subject may return claims of lesser value to the
or other sources are not recoverable. to appeal to the authorities specified in field claims office for settlement within
(3) Non-economic loss. Elements of paragraph (d) of this section. that office’s jurisdiction. The field
damages are limited to the following: (2) The Judge Advocate General claims office must take care to avoid
(i) Pre-death conscious pain and (TJAG) and the Assistant Judge compromising the higher authority’s
suffering. Advocate General (TAJAG) are discretion by conceding liability in
(ii) Loss of companionship, comfort, delegated authority to pay up to claims of lesser amount.
society, protection, and consortium $100,000 in settlement of a claim and to (d) Appeals. Denials or final offers on
suffered by a spouse for the death of a disapprove a claim regardless of the claims described as follows may be
spouse, a child for the death of a parent, amount claimed. appealed to the official designated:
or a parent for the death of a child. (3) The Commander USARCS is (1) For claims presented in an amount
(iii) Loss of training, guidance, delegated authority to pay up to $25,000 over $100,000, final decisions on
education, and nurture suffered by a in settlement of a claim and to appeals will be made by the Secretary
child under the age of 18 for the death disapprove or make a final offer in a of the Army or designee.
of a parent, until the child becomes 18 claim regardless of the amount claimed. (2) For claims presented for $100,000
years old. (4) The Judge Advocate (JA) or Staff or less, and any denied claim, regardless
(iv) Claims for the survivors’ Judge Advocate (SJA), subject to of the amount claimed, in which the
emotional distress, mental anguish, limitations that USARCS may impose, denial was based solely upon an
grief, bereavement, and anxiety are not and chiefs of a command claims service incident-to-service bar, exclusionary
payable, in particular claims for are delegated authority to pay up to language in a federal statute governing
intentional or negligent infliction of $25,000 in settlement, regardless of the compensation of federal employees for
job-related injuries (see § 536.44), or forward the claim together with a § 536.81 Payment of costs, settlements,
untimely filing, TJAG or TAJAG will recommendation for action. All matters and judgments related to certain legal
render final decisions on appeals, submitted by the claimant will be malpractice claims.
except that claims presented for $25,000 forwarded and considered. (a) General. Costs, settlements, and
or less, and not acted upon by the judgments cognizable under 10 U.S.C.
(d) Since an appeal under this subpart 1054(f) for damages for personal injury
Commander USARCS, are governed by is not an adversarial proceeding, no
paragraph (d)(3) of this section. or loss of property caused by any
form of hearing is authorized. A request attorney, paralegal, or other member of
(3) For claims presented for $25,000
or less, final decisions on appeals will by the claimant for access to a legal staff will be paid if:
be made by the Commander USARCS, documentary evidence in the claim file (1) The alleged negligent or wrongful
his or her designee, or the chief of a to be used in considering the appeal actions or omissions occurred during
command claims service when such will be granted unless law or regulation the provision or performance of legal
claims are acted on by an ACO under does not permit access. services while the attorney or legal
such service’s jurisdiction. (e) If the appellate authority upholds employee was acting within the scope of
(4) Sections 536.64, 536.65, and a final offer or authorizes an award on duties or employment;
536.66 of this part set forth the rules appeal from a denial of a claim, the (2) Such personnel furnish prompt
relating to the notification of appeal notice of the appellate authority’s action notification and delivery of all process
rights and processing. will inform the claimant that he or she served or received and other documents,
(e) Delegated authority. Authority must accept the award within 180 days information, and assistance as
delegated by this section will not be of the date of mailing of the notice of the requested;
exercised unless the settlement or (3) Such personnel cooperate in the
appellate authority’s action or the award
approval authority has been assigned an defense of the action on the merits.
will be withdrawn, the claim will be (b) Requests for contribution or
office code. deemed denied, and the file will be indemnification. All requests for
§ 536.79 Action on appeal under the closed without future recourse. contribution or indemnification under
Military Claims Act. this section should be forwarded to the
§ 536.80 Payment of costs, settlements,
(a) The appeal will be examined by Commander USARCS for action,
and judgments related to certain medical
the settlement authority who last acted malpractice claims. following the procedures set forth in
on the claim, or his or her successor, to this subpart.
determine if the appeal complies with (a) General. Costs, settlements, or
the requirements of this regulation. The judgments cognizable under 10 U.S.C. § 536.82 Reopening an MCA claim after
settlement authority will also examine 1089(f) for personal injury or death final action by a settlement authority.
the claim file and decide whether caused by any physician, dentist, nurse, (a) Original approval or settlement
additional investigation is required; pharmacist, paramedic, or other authority (including TAJAG, TJAG,
ensure that all allegations or evidence supporting personnel (including Secretary of the Army, or the Secretary’s
presented by the claimant, agent, or medical and dental technicians, nurse designees). (1) An original settlement
attorney are documented; and ensure assistants, therapists, and Red Cross authority may reconsider the denial of,
that all pertinent evidence is included. volunteers of the Army Medical or final offer on, a claim brought under
If claimants state that they appeal, but Department (AMEDD), AMEDD the MCA upon request of the claimant
do not submit supporting materials personnel detailed for service with other or the claimant’s authorized agent. In
within the 60-day appeal period or an than a federal department, agency, or the absence of such a request, the
approved extension thereof, these instrumentality and direct contract settlement authority may on his or her
appeals will be determined on the personnel identified in the contract as initiative reconsider a claim.
record as it existed at the time of denial federal employees), will be paid (2) An original approval or settlement
or final offer. Unless action under provided that: authority may reopen and correct action
paragraph (b) of this section is taken, the on an MCA claim previously settled in
(1) The alleged negligent or wrongful whole or in part (even if a settlement
claim and complete investigative file,
actions or omissions occurred during agreement has been executed) when it
including any additional investigation,
and a tort claims memorandum will be the performance of medical, dental, or appears that the original action was
forwarded to the appropriate appellate related health care functions (including incorrect in law or fact based on the
authority for necessary action on the clinical studies and investigations) evidence of record at the time of the
appeal. while the medical or health care action or subsequently received. For
(b) If the evidence in the file, employee was acting within the scope of errors in fact, the new evidence must
including information submitted by the employment. not have been discoverable at the time
claimant with the appeal and that found (2) Such personnel furnish prompt of final action by either the Army or the
by any necessary additional notification and delivery of all process claimant through the exercise of
investigation, indicates that the appeal served or received and other documents, reasonable diligence. Corrective action
should be granted in whole or in part, information, and assistance as may also be taken when an error
the settlement authority who last acted requested. contrary to the parties’ mutual
on the claim, or his or her successor, understanding is discovered in the
(3) Such personnel cooperate in the
will attempt to settle the claim. If a original action. If the settlement or
defense of the action on its merits. approval authority determines that their
settlement cannot be reached, the
appeal will be forwarded in accordance (b) Requests for contribution or original action was incorrect, they will
with paragraph (a) of this section. indemnification. All requests for modify the action and, if appropriate,
(c) As to an appeal that requires contribution or indemnification under make a supplemental payment. The
action by TJAG, TAJAG, or the Secretary this section should be forwarded to the basis for a change in action will be
of the Army or designee, the Commander USARCS for action, stated in a memorandum included in
Commander USARCS may take the following the procedures set forth in the file. For example, a claim was
action in paragraph (b) of this section or this subpart. settled for $15,000, but the settlement
agreement was typed to read ‘‘$1,500’’ all of which are posted on the USARCS U.S.C. 2671. Categories of such
and the error is not discovered until the Web site; for the address see § 536.2(a). employees are listed in § 536.23(b) of
file is being prepared for payment. If this part.
appropriate, a corrected payment will be § 536.84 Scope for claims under the
Federal Tort Claim Act. § 536.86 Claims not payable under the
made. A settlement authority who has
(a) General. This subpart applies in Federal Tort Claims Act.
reason to believe that a settlement was
obtained by fraud on the part of the the United States, its commonwealths, A claim is not payable if it is
claimant or claimant’s legal territories and possessions (all identified as an exclusion in DA Pam
representative will reopen action on that hereinafter collectively referred to as 27–162, paragraphs 2–36 through 2–43.
claim and, if the belief is substantiated, United States or U.S.). It prescribes the
§ 536.87 Applicable law for claims under
correct the action. The basis for substantive bases and special the Federal Tort Claims Act.
correcting an action will be stated in a procedural requirements under the
The applicable law for claims falling
memorandum and included in the file. FTCA and the implementing Attorney
under the Federal Tort Claims Act is set
General’s regulations for the
(b) A successor approval or settlement forth in §§ 536.41 through 536.52.
administrative settlement of claims
authority (including TAJAG, TJAG,
against the United States based on § 536.88 Settlement authority for claims
Secretary of the Army, or the Secretary’s
death, personal injury, or damage to, or under the Federal Tort Claims Act.
designees). (1) Reconsideration. A
loss of, property caused by negligent or (a) General. Subject to the Attorney
successor approval or settlement
wrongful acts or omissions by the General’s approval of payments in
authority may reconsider the denial of,
United States or its employees acting excess of $200,000 for a single claim, or
or final offer on, an MCA claim upon
within the scope of their employment. if the total value of all claims and
request of the claimant or the claimant’s
If a conflict exists between this part and potential claims arising out of a single
authorized agent only on the basis of
the Attorney General’s regulations, the incident exceeds $200,000 (for which
fraud, substantial new evidence, errors
latter governs. USARCS must write an action
in calculation, or mistake
(b) Effect of the Military Claims Act. memorandum for submission to the
(misinterpretation) of law.
A tort claim arising in the United States, Department of Justice), the following
(2) Settlement correction. A successor its commonwealths, territories, and officials are delegated authority to settle
approval or settlement authority may possessions may be settled under (including payment in full or in part, or
reopen and correct a predecessor’s subpart C of this part if the Federal Tort denial) and make final offers on claims
action on a claim that was previously Claims Act (FTCA) does not apply to the under this subpart:
settled in whole or in part for the same type of claim under consideration or if (1) The Judge Advocate General
reasons that an original authority may the claim arose incident to noncombat (TJAG);
do so. activities. If a claim is filed under both (2) The Assistant Judge Advocate
(c) Time requirement for filing request the FTCA and the Military Claims Act General (TAJAG); and
for reconsideration. Requests (MCA), or when both statutes apply (3) The Commander USARCS.
postmarked more than five years from equally, final action thereon will follow (b) ACO heads. A head of an area
the date of mailing of final notice will the procedures set forth in DA Pam 27– claims office (ACO) is delegated
be denied based on the doctrine of 162, paragraphs 2–74 through 2–76, authority to pay up to $50,000 in
laches. discussing final offers and denial letters. settlement of a claim, regardless of the
(d) Finality of action. Action by the amount claimed, and to disapprove or
appropriate authority (either affirming § 536.85 Claims payable under the Federal make a final offer in a claim presented
Tort Claims Act. in an amount not exceeding $50,000,
the prior action or granting full or
granting full or partial relief) is final (a) Unless otherwise prescribed, provided the value of all claims and
under the provisions of 10 U.S.C. 2735. claims for death, personal injury, or potential claims arising out of a single
Action upon a request for damage to, or loss of, property (real or incident does not exceed $200,000.
reconsideration constitutes final personal) are payable under this subpart (c) CPO heads. A head of a claims
administrative disposition of a claim. when the injury or damage is caused by processing office (CPO) with approval
No further requests for reconsideration negligent or wrongful acts or omissions authority is delegated authority to
will be allowed except on the basis of of military personnel or civilian approve, in full or in part, claims
fraud. employees of the Department of the presented for $5,000 or less, and to pay
Army or Department of Defense while claims regardless of amount, provided
Subpart D—Claims Cognizable Under acting within the scope of their an award of $5000 or less is accepted in
the Federal Tort Claims Act employment under circumstances in full satisfaction of the claim.
which the United States, if a private (d) Further guidance. Authority to
§ 536.83 Statutory authority for the Federal person, would be liable to the claimant further delegate payment authority is set
Tort Claims Act. in accordance with the law of the place forth in § 536.3(g)(1) of this part. For
The statutory authority for this where the act or omission occurred. The further discussions related to approval,
subpart is the Federal Tort Claims Act FTCA is a limited waiver of sovereign settlement and payment authority see
(FTCA) (60 Stat. 842, 28 U.S.C. 2671– immunity without which the United paragraphs 2–69 and 2–71 of DA Pam
2680), as amended by Public Law 89– States may not be sued in tort. 27–162.
506, July 1966 (80 Stat. 306); Public Law Similarly, neither the Fifth Amendment (e) Settlement of multiple claims from
93–253, March 1974 (88 Stat. 50); Public nor any other provision of the U.S. a single incident. (1) Where a single act
Law 97–124, December 1981 (93 Stat. Constitution creates or permits a federal or incident gives rise to multiple claims
1666); Public Law 100–694, November cause of action allowing recovery in cognizable under this subpart, and
1988 (102 Stat. 4563–67); and Public tort. Immunity must be expressly where one claim cannot be settled
Law 101–552, November 1996 (104 Stat. waived, as the FTCA waives it. within the monetary jurisdiction for one
734); and as implemented by the (b) To be payable, a claim must arise claim of the authority acting on the
Attorney General’s Regulations (28 CFR from the acts or omissions of an claim or all claims cannot be settled
14.1 through 14.11 and its Appendix), ‘‘employee of the government’’ under 28 within the monetary jurisdiction for a
single incident, no final offer will be appropriate, a corrected payment will be Subpart E—Claims Cognizable Under
made. All claims will be forwarded, made. An approval or settlement the Non-Scope Claims Act
along with a recommended disposition, authority who has reason to believe that
to the Commander USARCS. a settlement was obtained by fraud on § 536.90 Statutory authority for the Non-
(2) If the Commander USARCS the part of the claimant or claimant’s Scope Claims Act.
determines that all claims can be settled legal representative will reopen action The statutory authority for this
for a total of $200,000 or less, he may on that claim, and if the belief is subpart is set forth in the Act of October
return claims to the field office for substantiated, correct the action. The 1962, 10 U.S.C. 2737, 76 Stat. 767,
settlement. If the Commander USARCS, basis for correcting an action will be commonly called the ‘‘Non-Scope
determines that all claims cannot be stated in a memorandum and included Claims Act (NSCA).’’
settled for a total of $200,000, he must in the file. § 536.91 Scope for claims under the Non-
request Department of Justice authority (d) A successor approval or settlement Scope Claims Act.
prior to settlement of any one claim. authority. (1) Reconsideration. A
The field claims office must not concede (a) This subpart applies worldwide
successor approval or settlement and prescribes the substantive bases and
liability by paying any one claim of authority may reconsider the denial of,
lesser value. special procedural requirements for the
or final offer on, an FTCA claim upon administrative settlement and payment
§ 536.89 Reconsideration of Federal Tort request of the claimant, the claimant’s of not more than $1,000 for any claim
Claims Act claims. authorized agent, or the claimant’s legal against the United States for personal
(a) Reconsideration of paid claims. representative only on the basis of injury, death or damage to, or loss of,
Under the provision of 28 U.S.C. 2672, fraud, substantial new evidence, errors property caused by military personnel
neither an original or successor in calculation, or mistake or civilian employees, incident to the
authority may reconsider a claim which (misinterpretation) of law. use of a U.S. vehicle at any location, or
has been paid except as expressly set (2) Settlement correction. A successor incident to the use of other U.S.
forth below. Payment of an amount for approval or settlement authority may property on a government installation,
property damage will bar payment for reopen and correct a predecessor’s which claim is not cognizable under any
personal injury or death except for a action on a claim that was previously other provision of law.
split claim provided the provisions of settled in whole or in part for the same (b) For the purposes of this subpart,
§ 536.60 are followed. Supplemental reasons that an original authority may a ‘‘government installation’’ is a facility
payments for either property or injury do so. having fixed boundaries owned or
are barred by 10 U.S.C. 2672. (e) Requirement to forward a request controlled by the government, and a
Accordingly, claimants will be informed for reconsideration. When full relief is ‘‘vehicle’’ includes every description of
that only one claim or payment is not granted, forward all requests for carriage or other artificial contrivance
permitted. reconsideration of an ACO’s denial or used, or capable of being used, as means
(b) Notice of right to reconsideration. final offer to the Commander USARCS of transportation on land (1 U.S.C. 4).
Notice of disapproval or final offer for action. Include all investigative (c) Any claim in which there appears
issued by an authority listed in material and legal analyses generated by to be a dispute about whether the
§ 536.88(b) will advise the claimant of a the request. employee was acting within the scope of
right to reconsideration to be submitted employment will be considered under
in writing not later than six months (f) Action prior to forwarding. A
subparts C, D, or F of this part. Only
from the date of mailing the notice. request for reconsideration should
when all parties, including an insurer,
Such a request will suspend the disclose fully the legal and/or factual
agree that there is no ‘‘in scope’’ issue
requirement to bring suit for a minimum bases that the claimant has asserted as
will the claim be considered under this
of six month or until action is taken on grounds for relief and provide
subpart.
the request. The claimant will be so appropriate supporting documents or
informed. See the Attorney General’s evidence. Following completion of any § 536.92 Claims payable under the Non-
Regulations at 28 CFR 14.9(b), posted on investigation or other action deemed Scope Claims Act.
the USARCS Web site; for the address necessary for an informed disposition of (a) General. A claim for personal
see § 536.2(a). the request, the approval or settlement injury, death, or damage to, or loss of,
(c) Original approval or settlement authority will reconsider the claim and property, real or personal, is payable
authority. (1) Reconsideration. An attempt to settle it, granting relief as under this subpart when:
original settlement authority may warranted. When further settlement (1) Caused by negligent or wrongful
reconsider the denial of, or final offer efforts appear unwarranted, the entire acts or omissions of Department of
on, a claim brought under the FTCA file with a memorandum of opinion will Defense or Department of the Army
upon request of the claimant or the legal be forwarded to the Commander (DA) military personnel or civilian
representative. USARCS. The claimant will be informed employees, as listed in § 536.23(b):
(2) Settlement correction. An original of such transfer. (i) Incident to the use of a vehicle
approval or settlement authority may (g) Finality of action. Action by the belonging to the United States at any
reopen and correct action on a claim appropriate authority (either affirming place or;
previously settled in whole or in part the prior action or granting full or (ii) Incident to the use of any other
(even if a settlement agreement has been partial relief) upon a request for property belonging to the United States
executed) when an error contrary to the reconsideration constitutes final on a government installation.
parties’ mutual understanding is administrative disposition of a claim. (2) The claim is not payable under
discovered in the original action. For No further requests for reconsideration any other claims statute or regulation
example: a claim was settled for will be allowed except on the basis of available to the DA for the
$15,000, but the settlement agreement fraud. Attempted further requests for administrative settlement of claims.
was typed to read ‘‘$1,500’’ and the reconsideration on other grounds will (b) Personal injury or death. A claim
error is not discovered until the file is not toll the six-month period set forth in for personal injury or death is allowable
being prepared for payment. If 28 U.S.C. 2401(b). only for the cost of reasonable medical,
hospital, or burial expenses actually less and to compromise and pay, duty training, they are under state
incurred and not otherwise furnished or regardless of amount claimed, an agreed command and control and are paid from
paid by the United States. award of $1,000 or less. federal funds. The NGCA does apply,
(c) Property loss or damage. A claim (c) Further guidance. Authority to but as explained in paragraph (c) of this
for damage to or loss of property is further delegate payment authority is set section it is seldom used.
allowable only for the cost of reasonable forth in § 536.3(g)(1) of this part. For
(3) When ARNG soldiers perform state
repairs or value at time of loss, further discussions also related to
active duty, they are under state
whichever is less. approval, settlement and payment
command and control and are paid from
authority see also paragraphs 2–69 and
§ 536.93 Claims not payable under the state funds. Federal claims statutes do
2–71 of DA Pam 27–162.
Non-Scope Claims Act. not apply, but state claims statutes may
Under this subpart, a claim is not § 536.95 Reconsideration of Non-Scope apply.
payable that: Claims Act claims. (b) The ARNG also employs civilians,
(a) Results in whole or in part from The provisions of § 536.89 addressing referred to as technicians and employed
the negligent or wrongful act of the reconsideration apply and are under 32 U.S.C. 709. Technicians are
claimant or his or her agent or incorporated herein by reference. If the usually, but not always, ARNG soldiers
employee. The doctrine of comparative claim is not cognizable under the who perform the usual 15 days of
negligence does not apply. Federal Tort Claims Act, appellate annual training (a category of full-time
(b) Is for medical, hospital, or burial procedures under the Military Claims duty) and 48 drills (inactive-duty
expenses furnished or paid by the Act or NGCA apply. training) per year.
United States.
Subpart F—Claims Cognizable Under (c) NGCA coverage applies only to
(c) Is for any element of damage
the National Guard Claims Act ARNG soldiers performing full-time
pertaining to personal injuries or death
National Guard duty or inactive-duty
other than as provided in § 536.93(b). § 536.96 Statutory authority for the training and to technicians. However,
All other items of damage, for example, National Guard Claims Act.
since the NGCA’s enactment in 1960,
compensation for loss of earnings and The statutory authority for this Congress has also extended Federal Tort
services, diminution of earning subpart is contained in the Act of Claims Act (FTCA) coverage to these
capacity, anticipated medical expenses, September 1960 (32 U.S.C. 715, 74 Stat. personnel.
physical disfigurement and pain and 878), commonly referred to as the
suffering are not payable. ‘‘National Guard Claims Act’’ (NGCA), (1) In 1968, technicians, who were
(d) Is for loss of use of property or for as amended by Public Law 87–212, (75 state employees formerly, were made
the cost of substitute property, for Stat. 488), September 1961; Public Law federal employees. Along with federal
example, a rental. 90–486, (82 Stat. 756), August 1968; employee status came FTCA coverage.
(e) Is legally recoverable by the Public Law 90–521, (82 Stat. 874), Technicians no longer have any state
claimant under an indemnifying law or September 1968; Public Law 90–525, status, albeit they are hired, fired, and
indemnity contract. If the claim is in (82 Stat. 877), September 1968; Public administered by a state official, the
part legally recoverable, the part Law 91–312, (84 Stat. 412), July 1970; Adjutant General, acting as the agent of
recoverable by the claimant is not Public Law 93–336, (88 Stat. 291), July the federal government.
payable. 1974; and Public Law 98–564, (98 Stat. (2) In 1981, Congress extended FTCA
(f) Is a subrogated claim. 2918), October 1984. coverage to ARNG soldiers performing
(g) In some circumstances some full-time National Guard duty or
claims may be partially payable. See DA § 536.97 Scope for claims under National inactive-duty training (such as any
Pam 27–162, paragraph 5–4 for more Guard Claims Act.
training or other duty under 32 U.S.C.
information on claims that may be This subpart applies worldwide and 316, 502–505). Unlike making
partially payable. prescribes the substantive bases and technicians federal employees, this
special procedural regulations for the extension of coverage did not affect
§ 536.94 Settlement authority for claims settlement of claims against the United
under the Non-Scope Claims Act. their underlying status as state military
States for death, personal injury, personnel.
(a) Settlement authority. The damage to, or loss or destruction of
following are delegated authority to pay property. (d) Claims arising from the negligent
up to $1,000 in settlement of each claim (a) Soldiers of the Army National acts or omissions of ARNG soldiers
arising out of one incident and to Guard (ARNG) can perform military performing full-time National Guard
disapprove a claim presented in any duty in an active duty status under the duty or inactive-duty training, or of
amount under this subpart: authority of Title 10 of the United States technicians, will be processed under the
(1) The Judge Advocate General Code, in a full-time National Guard duty FTCA. Therefore, the NGCA is generally
(TJAG); or inactive-duty training status under relevant only to claims arising from
(2) The Assistant Judge Advocate the authority of Title 32 of the United noncombat activities or outside the
General (TAJAG); States Code, or in a state active duty United States. Additionally, claims by
(3) The Commander USARCS; status under the authority of a state members of the National Guard may be
(4) The Judge Advocate (JA) or Staff code. paid for property loss or damage
Judge Advocate (SJA) or chief of a (1) When ARNG soldiers perform incident to service if the claim is based
command claims service; and active duty, they are under federal on activities falling under this subpart
(5) The head of an area claims office command and control and are paid from and is not payable under AR 27–20,
(ACO). federal funds. For claims purposes, chapter 11.

(b) Approval authority. The head of a those soldiers are treated as active duty
§ 536.98 Claims payable under the
claims processing office (CPO) with soldiers. The NGCA, 32 U.S.C. 715, does National Guard Claims Act.
approval authority is delegated not apply.
authority to approve and pay, in full or (2) When ARNG soldiers perform full- The provisions of § 536.75 apply to
in part, claims presented for $1,000 or time National Guard duty or inactive- claims arising under this subpart.
§ 536.99 Claims not payable under the United States, as prescribed in DODD for example, NATO SOFA, Article VIII,
National Guard Claims Act. 5515.8. The Commander USARCS is paragraph 5.
The provisions of § 536.76 apply to responsible for maintaining direct (3) Ex gratia claims. Claims arising
claims arising under this subpart. liaison with sending State out of tortious acts or omissions not
representatives and establishing done in the performance of official
§ 536.100 Applicable law for claims under
the National Guard Claims Act.
procedures designed to carry out the duties shall be considered by the
provisions of this subpart. sending State for an ‘‘ex gratia’’ payment
The provisions of § 536.77 apply to
that is made directly to the injured
claims arising under this subpart. § 536.106 Definitions for international
agreements claims.
party; see, for example, NATO SOFA,
§ 536.101 Settlement authority for claims Article VIII, paragraph 6.
under the National Guard Claims Act. (a) ‘‘Force and civilian component of
force.’’ Members of the sending State’s § 536.107 Scope for international
The provisions of § 536.78 apply to agreements claims arising in the United
claims arising under this subpart. armed forces on temporary or
permanent official duty within the States.
§ 536.102 Actions on appeal under the receiving State, civilian employees of This section sets forth procedures and
National Guard Claims Act. the sending State’s armed forces, and responsibilities for the investigation,
The provisions of § 536.79 apply to those individuals acting in an official processing, and settlement of claims
claims arising under this subpart. capacity for the sending State’s armed arising out of any acts or omissions of
forces. However, under provisions of the members of a foreign military force or
Subpart G—Claims Cognizable Under applicable SOFAs the sending State and civilian component present in the
International Agreements the receiving State may agree to exclude United States or a territory,
from the definition of ‘‘force’’ certain commonwealth, or possession thereof
§ 536.103 Statutory authority for claims
cognizable under international claims individuals, units or formations that under the provisions of cost sharing
agreements. would otherwise be covered by the reciprocal international agreements
The authority for claims presented or SOFA. Where such an exclusion has which contain claims settlement
processed under this subpart is set forth been created, this subpart will not apply provisions applicable to claims arising
in the following federal laws and bi- or to claims arising from actions or in the United States. Article VIII of the
multinational agreements: omission by those individuals, units or NATO SOFA has reciprocal provisions
(a) 10 U.S.C. 2734a and 10 U.S.C. formations. ‘‘Force and civilian applying to all NATO member
2734b (the International Agreements component of force’’ also includes countries; the Partnership for Peace
Claims Act) as amended, for claims claims arising out of acts or omissions (PFP) Agreement has similiar
arising overseas under international made by military or civilian personnel, provisions, as do the Singapore and
agreements. regardless of nationality, who are Australian SOFAs.
(b) Various international agreements, assigned or attached to, or employed by,
§ 536.108 Claims payable under
such as the North Atlantic Treaty an international headquarters international agreements (for those arising
Organization (NATO) Status of Forces established under the provisions of the in the United States).
Agreement (SOFA) and the Partnership Protocol on the Status of International
(a) Within the United States, Art. VIII,
for Peace (PFP) SOFA. Military Headquarters Set Up Pursuant
NATO SOFA applies to claims arising
to the North Atlantic Treaty, dated
§ 536.104 Current agreements in force. within the North Atlantic Treaty Area,
August 28, 1952, such as Supreme
Current listings of known agreements which includes CONUS and its
Allied Command, Atlantic.
in force are also posted on the USARCS territories and possessions north of the
(b) Types of claims under agreements. Tropic of Cancer (23.5 degrees north
Web site; for the address see § 536.2(a). (1) Intergovernmental claims. Claims of latitude). This excludes Puerto Rico, the
§ 536.105 Responsibilities generally/ one contracting party against any other Virgin Islands, and parts of Hawaii.
international agreements claims. contracting party for damage to property Third-party scope claims are payable
(a) The Commander USARCS is owned by its armed services, or for under subpart D or, if the claim arises
responsible for: injury or death suffered by a member of incident to noncombat activities, under
(1) Providing policy guidance to the armed services engaged in the subpart C of this part. Maritime claims
command claims services or other performance of official duties, are are payable under subpart H of this part.
responsible judge advocate (JA) offices waived. Claims above a minimal The provisions of these subparts on
on SOFA or other treaty reimbursement amount for damage to property owned what claims are payable apply equally
programs implementing 10 U.S.C. 2734a by a governmental entity other than the here. The members of the foreign force
and 2734b. armed services may be asserted. NATO or civilian component must be acting in
(2) Monitoring the reimbursement SOFA, Article VIII, paragraph 1–4; pursuance of the applicable treaty’s
system to ensure that programs for the Singapore SOFA, Article XVI, paragraph objectives.
proper verification and certification of 2–3. (b) Within the United States, third-
reimbursement are in place. (2) Third-party scope claims. Claims party ex gratia claims are payable only
(3) Monitoring funds reimbursed to or arising out of any acts or omissions of by the sending State and are not payable
by foreign governments. members of a force or the civilian under subpart E of this part.
(b) Responsibilities in the continental component of a sending State done in
United States (CONUS)—The the performance of official duty or any § 536.109 Claims not payable under
responsibility for implementing these other act, omission, or occurrence for international agreements (for those arising
agreements within the United States has which the sending State is legally in the United States).
been delegated to the Secretary of the responsible shall be filed, considered The following claims are not payable:
Army (SA). The SA, in turn, has and settled in accordance with the laws (a) Claims arising from a member of
delegated that responsibility to the and regulations of the receiving State a foreign force or civilian component’s
Commander USARCS, who is in charge with respect to claims arising from the acts or omissions that do not accord
of the receiving State office for the activities of its own armed service; see, with the objectives of a treaty
authorizing their presence in the United United States, the Commander USARCS of Army, 897 F. Supp. 612 (D.D.C.
States. will furnish assistance. 1995).
(b) Claims arising from the acts or (b) SOFA provisions that call for the
omissions of a member of a foreign force § 536.112 Settlement authority for claims receiving State to adjudicate claims
arising under international agreements (for against the United States usually refer to
or civilian component who has been those claims arising in the United States).
excluded from SOFA coverage by claims by third parties brought against
agreement between the sending State Settlement authority is delegated to members of the force or civilian
and the United States. the Commander USARCS, except for component. This includes claims by
(c) Third-party scope claims arising settlement amounts exceeding the tourists or business travelers as well as
within the United States that are not Commander’s authority as set forth in inhabitants of foreign countries.
payable under subparts C, D, or H of this subparts C, D, or H of this part, or in Depending on how the receiving State
part are listed as barred under those those cases where settlement is reserved interprets the particular SOFA’s class of
subparts. As sending State forces are to a higher authority. Pursuant to the proper claimants, the receiving State
considered assimilated into the U.S. applicable SOFA, the Commander may also consider claims by U.S.
Armed Services for purposes of the USARCS will report the proposed soldiers, civilian employees, and their
SOFAs, their members are also barred settlement to the sending State office for family members. Chiefs of command
from receiving compensation from the concurrence or objection. See, for claims services or other Army JA offices
United States when they are injured example, NATO SOFA, Article VIII. responsible for claims that arise in
incident to their service, Daberkow v. countries bound by SOFA or other
§ 536.113 Assistance to foreign forces for treaty provisions requiring a receiving
United States, 581 F.2d 785 (9th Cir. claims arising under international
1978). agreements (as to claims arising in the
State to consider claims against the
United States). United States will ensure that all claims
§ 536.110 Notification of incidents arising personnel know the receiving State’s
under international agreements (for claims All claims arising from activities of policy on which persons or classes of
arising in the United States). members of NATO, Partnership for persons are proper claimants under
To enable USARCS to properly Peace, Singaporean, or Australian forces such provisions. When a claim is filed
discharge its claims responsibilities in the United States are processed in the both with the receiving State and under
under the applicable SOFAs, it must be same manner as those arising from either the Military Claims Act (MCA) or
notified of all incidents, including off- activities of U.S. government personnel. Foreign Claims Act (FCA), the
duty incidents, in which members of a All JAs and legal offices will provide provisions of § 536.76(h) of this part and
foreign military force or civilian assistance similar to that provided to DA Pam 27–162, paragraph 3–4a apply.
component are involved. Any member U.S. armed services personnel. (c) When SOFA provisions provide
or employee of the U.S. armed services for receiving State claims consideration,
§ 536.114 Scope for claims arising
who learns of an incident involving a overseas under international agreements. the time limit for filing such claims may
member of a foreign military force or be much shorter than the two years
civilian component resulting in (a) This section sets forth guidance on otherwise allowed under the FCA or
personal injury, death, or property claims arising from any act or omission MCA. For example, receiving State
damage will immediately notify the of soldiers or members of the civilian claims offices in Germany require that a
judge advocate (JA) or legal officer at the component of the U.S. armed services claim be filed under the SOFA within
installation or activity to which such done in the performance of official duty three months of the date that the
person is assigned or attached. The JA or arising from any other act or omission claimant is aware of the U.S.
or legal officer receiving such or occurrence for which the U.S. armed involvement. If the filing period is about
notification will in turn notify the services are responsible under an to expire for claims arising in Germany,
Commander USARCS. If the member is international agreement. Claims have the claimant fill out a claim form,
neither assigned nor attached to any incidents arising in countries for which make two copies, and date-stamp each
installation or activity within the United the SOFA requires the receiving State to copy as received by a sending State
States, the Commander USARCS, will adjudicate and pay the claims in claims office. Return the date-stamped
be notified. accordance with its laws and original of the claim to the claimant
regulations are subject to partial with instructions to promptly file with
§ 536.111 Investigation of claims arising reimbursement by the United States. the receiving State claims office. Keep
under international agreements (for those (b) Claims by foreign inhabitants one date-stamped copy as a potential
claims arising in the United States). claim. Forward one date-stamped copy
based on acts or omissions outside the
Responsibility for investigating an scope of official duties are cognizable of the claim to the U.S. Army Claims
incident rests upon the area claims under subpart J of this part. Claims Service Europe (USACSEUR). This may
office (ACO) or claims processing office arising from nonscope acts or omissions toll the applicable German statute of
(CPO) responsible for the geographic by third parties who are not foreign limitations. Additionally, many
area in which the incident occurred. inhabitants are cognizable under receiving State claims offices do not
The Commander USARCS, an ACO, and subpart E but not under subparts C or require claimants to demand a sum
a CPO are authorized to designate the F of this part. certain. All claims personnel must
legal office of the installation at which familiarize themselves with the
the member of the foreign force or § 536.115 Claims procedures for claims applicable receiving State law and
civilian component is attached, arising overseas under international procedures governing SOFA claims.
including the legal office of another agreements. (d) All foreign inhabitants who file
armed force, to carry out the (a) SOFA provisions that call for the claims against the United States that fall
responsibility to investigate. The receiving State to adjudicate claims within the receiving State’s
investigation will comply with the have been held to be the exclusive responsibility, such as claims based on
responsible Service’s implementing remedy for claims against the United acts or omissions within the scope of
claims regulation. When the member is States, Aaskov v. Aldridge, 695 F. Supp. U.S. Armed Forces members’ or civilian
neither assigned nor attached within the 595 (D.D.C. 1988); Dancy v. Department employees’ duties, must file the claim
with the appropriate receiving State (b) Command claims services or other (b) Compensation for towage and
office. Those U.S. inhabitants whose responsible Army JA offices will ensure salvage service, including contract
claims would be otherwise cognizable that all claims personnel within their salvage, rendered to a vessel of, or in the
under the Military Claims Act (subpart areas of responsibility: service of, the DA or other property
C of this part) and whom the receiving (1) Receive annual training on the under the jurisdiction of the DA.
State deems proper claimants under the receiving State’s claims procedures, (c) Damage that is maritime in nature
SOFA must also file with the receiving including applicable time limitations, and caused by tortious conduct of U.S.
State. procedures and the responsible military personnel or federal civilian
(e) A claim filed with, and considered receiving State claims offices’ locations. employees, an agent thereof, or property
by, a receiving State under a SOFA or (2) Screen all new claims and under the Army’s jurisdiction.
other international agreement claims inquiries about claims to identify those
§ 536.120 Claims payable as maritime
provision may be considered under claimants who must file with the claims.
other subparts of this part only if the receiving State.
receiving State denied the claim on the (3) Ensure that all such claimants are A claim is cognizable under this
basis that it was not cognizable under informed of this requirement and the subpart if it arises in or on a maritime
the treaty or agreement provisions. See applicable time limitation. location, involves some traditional
DA Pam 27–162, paragraph 3–4a(2), for (4) Ensure that all applicable SOFA maritime nexus or activity, and is
conditions of waiver of the foregoing claims based on incidents occurring in caused by the wrongful act or omission
requirement. See also §§ 536.76(h) and circumstances that bring them within of a member of the U.S. Army,
536.138(j) of this part. When a claimant the United States’ primary sending State Department of Defense (DOD) or DA
has filed a claim with a receiving State jurisdiction are fully investigated. civilian employee, or an agent thereof,
and received payment, or the claim has while acting within the scope of
been denied on the merits, such action Subpart H—Maritime Claims employment. This class of claims
will be the claimant’s final and includes, but is not limited to:
§ 536.117 Statutory authority for maritime (a) Damage to a ship, boat, barge, or
exclusive remedy and will bar any claims. other watercraft;
further claims against the United States.
The Army Maritime Claims (b) An injury that involves a ship,
§ 536.116 Responsibilities as to claims Settlement Act (AMCSA) (10 U.S.C. boat, barge, or other watercraft;
arising overseas under international 4801–04, 4806, as amended) authorizes (c) Damage to a wharf, pier, jetty,
agreements. the Secretary of the Army or his fishing net, farm facilities or other
(a) Command claims services or other designee to administratively settle or structures in, on, or adjacent to any
responsible JA offices within whose compromise admiralty and maritime body of water;
jurisdiction SOFA or other treaty claims in favor of, and against, the (d) Damage or injury on land or on
provisions provide for a claim United States. water arising under the AEA and
reimbursement system, and where DA allegedly due to operation of an Army-
§ 536.118 Related statutes for maritime owned or leased ship, boat, barge, or
has been assigned single-service claims.
responsibility for the foreign country other watercraft;
(a) The AMCSA permits the (e) An injury that occurs on board an
seeking reimbursement (see § 536.17)
settlement of claims that would Army ship, boat, barge or other
are responsible for:
ordinarily fall under the Suits in watercraft; and
(1) Establishing programs for Admiralty Act (SIAA), 46 U.S.C. app.
verifying, certifying, and reimbursing (f) Crash into water of an Army
741–752; the Public Vessels Act (PVA), aircraft.
claims payments. Such service or JA 46 U.S.C. app. 781–790; or the
office will provide a copy of its Admiralty Extension Act (AEA), 46 § 536.121 Claims not payable as maritime
procedures implementing the program U.S.C. app. 740. Outside the United claims.
to the Commander USARCS. States the AMCSA may be used to settle Under this subpart, claims are not
(2) Providing the Commander admiralty claims in lieu of the Military payable if they:
USARCS with budget estimates for Claims Act or Foreign Claims Act. (a) Are listed in §§ 536.42, 536.43,
reimbursements in addition to the Within the United States, filing under 536.44, 536.45 (except at (e) and (k)),
reports required by AR 27–20, the AMCSA is not mandatory for causes and 536.46;
paragraph 13–7. of action as it is for the SIAA or PVA. (b) Are not maritime in nature;
(3) Providing the Commander (b) Similar maritime claims settlement (c) Are not in the best interests of the
USARCS each month in which authority is exercised by the Department United States, are contrary to public
payments are made, with statistical of the Navy under 10 U.S.C. 7363 and policy, or are otherwise contrary to the
information on the number of 7621–23 and by the Department of the basic intent of the governing statute, for
individual claims reimbursed, the total Air Force under 10 U.S.C. 9801–9804 example, claims for property loss or
amount paid by the foreign government, and 9806. damage or personal injury or death by
and the total amount reimbursed by the inhabitants of unfriendly foreign
United States. § 536.119 Scope for maritime claims. countries or by individuals considered
(4) Providing the Commander The AMCSA applies worldwide and to be unfriendly to the United States.
USARCS with a quarterly report includes claims that arise on high seas When a claim is considered not payable
showing total reimbursements paid or within the territorial waters of a for the reasons stated in this section, it
during the quarter for maneuver damage foreign country. At 10 U.S.C. 4802 it will be forwarded for appropriate action
and tort claims classified according to provides for the settlement or to the Commander USARCS, along with
major categories of damage determined compromise of claims for: the recommendations of the responsible
by the Commander USARCS, and an (a) Damage caused by a vessel of, or claims office.
update on major issues or activities that in the service of, the Department of (d) Are presented by a national, or a
could affect the reimbursement system’s Army (DA) or by other property under corporation controlled by a national, of
operation or funding. the jurisdiction of the DA. a country at war or engaged in armed
conflict with the United States, or any including pleasure craft owned by the § 536.126 Purpose of UCMJ claims.
country allied with such enemy United States. USARCS or Chief This subpart sets forth the standards
country, unless the appropriate Counsel, COE will coordinate with the to apply and the procedures to follow in
settlement authority determines that the Department of Justice (DOJ) as to processing claims for the wrongful
claimant is and, at the time of incident, whether to file a limitation of liability taking or willful damage or destruction
was friendly to the United States. A action. of property by military members of the
prisoner of war or an interned enemy Department of the Army.
alien is not excluded or barred from § 536.124 Settlement authority for
maritime claims. § 536.127 Proper claimants; unknown
bringing a claim for damage, loss, or accused—under the UCMJ.
destruction of personal property while (a) The Secretary of the Army, the
held in the custody of the government Army General Counsel as designee of (a) A proper claimant under this
if the claim is otherwise payable. the Secretary, or other designee of the subpart includes any individual
(e) Are for damages or injuries that a Secretary may approve any settlement (whether civilian or military), a
receiving State should pay for under an or compromise of a claim in any business, charity, or state or local
international agreement. See § 536.34(c). amount. A claim settled or government that owns, has an
compromised in a net amount exceeding ownership interest in, or lawfully
§ 536.122 Limitation of settlement of $500,000 will be investigated and possesses property.
maritime claims.
processed and, if approved by the (b) When cognizable claims are
(a) Within the United States the Secretary of the Army or his or her presented against a unit because the
period of completing an administrative designee, will be certified to Congress individual offenders cannot be
settlement under the AMCSA is subject for final approval. identified, this subpart sets forth the
to the same time limitation as that for procedures for approval authorities to
(b) The Judge Advocate General direct pay assessments, equivalent to
beginning suit under the SIAA or PVA; (TJAG), The Assistant Judge Advocate
that is, a two-year period from the date the amount of damages sustained,
General (TAJAG), the Commander against the unit members who were
the cause of the action accrued. The USARCS, the Chief Counsel COE, or
claimant must have agreed to accept the present at the scene and to allocate
Division or District Counsel Offices are individual liability in such proportion
settlement and it must be approved for delegated authority to settle, such as to
payment by the Secretary of the Army as is just under the circumstances.
deny or approve payment in full or in
or other approval authority prior to the part, any claim under this subpart § 536.128 Effect of disciplinary action,
end of such period. The presentation of regardless of the amount claimed, voluntary restitution, or contributory
a claim, or its consideration by the DA, provided that any award does not negligence for claims under the UCMJ.
neither waives nor extends the two-year exceed $100,000. (a) Disciplinary action.
limitation period and the claimant Administrative action under Article
should be so informed, in writing, when (c) A Staff Judge Advocate (SJA) or
chief of a command claims service and 139, UCMJ, and this subpart is entirely
the claim is acknowledged. See separate and distinct from disciplinary
§ 536.28. heads of area claims offices (ACOs) are
delegated authority to pay up to action taken under other sections of the
(b) For causes of action under the UCMJ or other administrative actions.
AEA, filing an administrative claim is $50,000, regardless of the amount
claimed, and to disapprove or make a Because action under both Article 139,
mandatory. However, suit is required UCMJ, and this subpart requires
under the two-year time limit applicable final offer on a claim presented in an
amount not exceeding $50,000. independent findings on issues other
to the SIAA and PVA, even though the than guilt or innocence, a soldier’s
AEA provides that no suit shall be filed (d) Authority to further delegate
conviction or acquittal of claim-related
under six months after filing a claim. payment authority is set forth in
charges is not dispositive of liability
(c) For causes of action arising outside § 536.3(g)(1) of this part. For further
under Article 139, UCMJ.
the United States, there is no time discussion also related to settlement and
(b) Voluntary restitution. The
limitation for completing an approval authority see paragraph 2–69
approval authority may terminate
administrative settlement. of DA Pam 27–162.
Article 139 proceedings without
(e) Where the claimed amount or findings if the soldier voluntarily makes
§ 536.123 Limitation of liability for potential claim damage exceeds
maritime claims. full restitution to the claimant.
$100,000 for COE claims or $50,000 for (c) Contributory negligence. A claim
For admiralty claims arising within all others, Commander USARCS will be
the United States under the provisions otherwise cognizable and meritorious is
notified immediately, and be furnished payable whether or not the claimant was
of the Limitation of Shipowners’ a copy of the claim and a mirror file
Liability Act, 46 U.S.C. app. 181–188, in negligent.
thereafter. See § 536.30 and AR 27–20,
cases alleging injury or loss due to paragraph 2–12. § 536.129 Claims cognizable as UCMJ
negligent operation of its vessel, the claims.
United States may limit its liability to Subpart I—Claims Cognizable Under Claims cognizable under Article 139,
the value of its vessel after the incident Article 139, Uniform Code of Military UCMJ, are limited to the following:
from which the claim arose. The act Justice (a) Requirement that conduct
requires filing of an action in federal constructively violate UCMJ. In order to
District Court within six months of § 536.125 Statutory authority for Uniform subject a person to liability under
receiving written notice of a claim. Code of Military Justice (UCMJ) Claims.
Article 139, the soldier’s conduct must
Therefore, USARCS, or the Chief The authority for this subpart is be such as would constitute a violation
Counsel, U.S. Army Corps of Engineers Article 139, Uniform Code of Military of one or more punitive Articles of the
(COE), or his designee, must be notified Justice (UCMJ) (10 U.S.C. 939, which UCMJ. However, a referral of charges is
within 10 working days of the receipt of provides redress for property willfully not a prerequisite to action under this
any maritime claim arising in the damaged or destroyed, or wrongfully subpart.
United States or on the high seas out of taken, by members of the Armed Forces (b) Claims for property willfully
the operation of an Army vessel, of the United States. damaged. Willful damage is damage
inflicted intentionally, knowingly, and (d) Claims resulting from the conduct within 90 days of the incident that gave
purposefully without justifiable excuse, of Reserve component personnel who rise to it, unless the SPCMCA acting on
as distinguished from damage caused are not subject to the UCMJ at the time the claim determines there is good cause
inadvertently, thoughtlessly or of the offense. for delay. Lack of knowledge of the
negligently. Damage, loss, or destruction (e) Subrogated claims. existence of Article 139, or lack of
of property caused by riotous, violent, (f) Claims for theft of services, even if knowledge of the identity of the
or disorderly acts or acts of depredation, such theft constitutes a violation of offender, are examples of good cause for
or through conduct showing reckless or Article 134 of the UCMJ. delay.
wanton disregard of the property rights (g) Claims for indirect, remote, or (b) Form and presentment of a claim.
of others, may be considered willful consequential damages. The claimant or authorized agent may
damage. (h) Claims by entities in conflict with present a claim orally or in writing. If
the United States or whose interests are presented orally, the claim must be
(c) Claims for property wrongfully
hostile to the United States. reduced to writing, signed, and seek a
taken. A wrongful taking is any
unauthorized taking or withholding of § 536.131 Limitations on assessments definite sum in U.S. dollars within 10
property, with the intent to deprive, arising from UCMJ claims. days after oral presentment.
temporarily or permanently, the owner (c) Action upon receipt of a claim.
(a) Limitations on amount. (1) A
or person lawfully in possession of the Any officer receiving a claim will
special court-martial convening
property. Damage, loss, or destruction of forward it within two working days to
authority (SPCMCA) has authority to
property through larceny, forgery, the SPCMCA exercising jurisdiction
approve a pay assessment in an amount
embezzlement, fraud, misappropriation, over the soldier or soldiers against
not to exceed $5,000 per claimant per
or similar offense may be considered whom the claim is made. If the claim is
incident and to deny a claim in any
wrongful taking. However, mere breach made against soldiers under the
amount. If the Judge Advocate
of a fiduciary or contractual duty that jurisdiction of two or more convening
responsible for advising the SPCMCA
does not involve larceny, forgery, SPCMCAs who are under the same
decides that the SPCMCA’s final action
GCMCA, forward the claim to that
embezzlement, fraud, or under the provisions of Rule for Courts-
GCMCA. That GCMCA will designate
misappropriation does not constitute Martial 1107 in a court martial arising
one SPCMCA to investigate and act on
wrongful taking. out of the same incident would be
the claim as to all soldiers involved. If
(d) Definition of property. Article 139 compromised, the SPCMCA may
the claim is made against soldiers under
provides compensation for loss of or forward the Article 139 claim to the
the jurisdiction of more than one
damage to both personal property, general court-martial convening
SPCMCA at different locations and not
whether tangible or intangible, and real authority (GCMCA) for action.
(2) A GCMCA, or designee, has under the same GCMCA, forward the
property. Contrast this to the Personnel claim to the SPCMCA whose
Claims Act and chapter 11 of AR 27–20, authority to approve a pay assessment
in an amount not to exceed $10,000 per headquarters is located nearest the situs
which provides compensation only for of the alleged incident. That SPCMCA
tangible personal property. Monetary claimant per incident and to deny a
claim in any amount. will investigate and act on the claim as
losses may fall into the category of to all soldiers involved. If a claim is
either tangible property (for example, (i) If the GCMCA or designee
determines that a claim exceeding brought against a member of one of the
cash), or intangible property (for other military services, forward the
example, an obligation incurred by a $10,000 per claimant per incident is
meritorious, that officer will assess the claim to the commander of the nearest
claimant to a third party as a result of major command of that service
fraudulent conduct by a soldier), soldier’s pay in the amount of $10,000
and forward the claim to the equivalent to a major Army command
although recovery for losses of (MACOM).
intangible property may be limited by Commander USARCS, with a
(d) Action by the special court-martial
other provisions of this part, such as the recommendation to increase the
convening authority. (1) If the claim
exclusion of theft of services (see assessment.
(ii) If the head of the area claims office appears to be cognizable, the SPCMCA
§ 536.130(f)) or consequential damages will appoint an investigating officer
(see § 536.130(g)). (ACO) (usually the GCMCA’s Staff Judge
Advocate (SJA)) decides that the within four working days of receipt of
(e) Claims cognizable under more a claim. The investigating officer will
GCMCA’s final action under the
than one statute. Claims cognizable follow the procedures of this subpart
provisions of Rule for Courts-Martial
under other claims statutes may be supplemented by DA Pam 27–162,
1107 in a court-martial arising out of the
processed under this subpart. chapter 9, and AR 15–6, chapter 4,
same incident would be compromised,
which applies to informal
§ 536.130 Claims not cognizable as UCMJ that officer may forward the Article 139
investigations. The SPCMCA may
claims. claim to USARCS for action.
(3) Only TJAG, TAJAG, the appoint the claims officer of a command
Claims not cognizable under Article (if the claims officer is a commissioned
139, UCMJ, and this subpart, include Commander USARCS, or designee has
authority to approve assessments in officer) as the investigating officer. In
the following: cases where the special court-martial
(a) Claims resulting from negligent excess of $10,000 per claimant per
incident. convening authority is an inactive duty
acts. soldier of the United States Army
(b) Limitations on type of damages.
(b) Claims for personal injury or Reserve, the appointment of an
Property loss or damage assessments are
death. investigating officer will be made within
limited to direct damages. This subpart
(c) Claims resulting from acts or 30 calendar days.
does not provide redress for indirect,

omissions of military personnel acting remote, or consequential damages. (2) If the claim is not brought against
within the scope of their employment, a person who is a member of the Armed
including claims resulting from combat § 536.132 Procedure for processing UCMJ Forces of the United States at the time
activities or noncombat activities, as claims. the claim is received, or if the claim
those terms are defined in the Glossary (a) Time limitations on submission of does not appear otherwise cognizable
of AR 27–20. a claim. A claim must be submitted under Article 139, UCMJ, the SPCMCA
may refer it for legal review (see Service (DFAS), ATTN: Military Pay party to request reconsideration (see
paragraph (g) of this section) within four Operations, 8899 E. 56th Street, § 536.133). A copy of the investigating
working days of receipt. If after legal Indianapolis, IN 46249. officer’s findings and recommendation
review the SPCMCA determines that the (g) Legal review. The SPCMCA will will be enclosed with the notice. The
claim is not cognizable, final action may refer the claim for legal review to its approval authority will then suspend
be taken disapproving the claim (see servicing legal office upon either action on the claim for 10 working days
paragraph (h) of this section) without completion of the investigating officer’s pending receipt of a request for
appointing an investigating officer. In report or the SPCMCA’s determination reconsideration, unless the approval
claims where the special court-martial that the claim is not cognizable (see authority determines that this delay will
convening authority is an inactive duty paragraph (d)(2) of this section). result in substantial injustice. If after
soldier of the United States Army (1) Within five working days or such this period the approval authority
Reserve, the request for a legal review time as the SPCMCA determines, that determines that an assessment is still
will be made within 30 calendar days. office will furnish a written opinion as warranted, the approval authority will
(e) Expediting payment through to: direct the appropriate DAO to withhold
Personnel Claims Act and Foreign (i) Whether the claim is cognizable such amount from the soldier’s pay
Claims Act procedures. When under the provisions of Article 139, account (see § 536.131(a)). For any
assessment action on a particular claim UCMJ, and this subpart. soldier not subject to the approval
will be unduly delayed, the claims (ii) Whether the findings and authority’s jurisdiction, the approval
office supporting the SPCMA may recommendations are supported by a authority will forward the claim to the
consider the claim under the Personnel preponderance of the evidence. commander who exercises SPCMCA
Claims Act, 31 U.S.C. 3721, and chapter (iii) Whether the investigation jurisdiction over the soldier for
11 of AR 27–20, or under the Foreign substantially complies with the assessment. The receiving SPCMCA is
Claims Act, 10 U.S.C. 2734, and subpart procedural requirements of Article 139, bound by the determination of the
J of this part, as long as it is otherwise UCMJ; this subpart; DA Pam 27–162, approval authority.
cognizable under that authority. If the chapter 9; and AR 15–6, chapter 4. (i) Assessment. Subject to any
Article 139 claim is later successful, the (iv) Whether the claim is clearly not limitations set forth in appropriate
claims office will inform the claimant of cognizable (see paragraph (d)(2) of this regulations, the servicing DAO will
the obligation to repay to the section) and final denial action can be withhold the amount directed by the
government any overpayment received taken without appointing an approval authority and pay it to the
under these statutes. investigating officer. claimant. The assessment is not subject
(f) Action by the investigating officer. (2) If the investigating officer’s to appeal and is binding on any finance
The investigating officer will notify the recommended assessment does not officer. If the servicing DAO cannot
soldier against whom the claim is made. exceed $5,000, the claims judge withhold the required amount because
(1) If the soldier wishes to make advocate (CJA) or claims attorney will, it does not have custody of the soldier’s
voluntary restitution, the investigating upon legal review, forward the claim to pay record, the record is missing, or the
officer may, with the SPCMCA’s the SPCMCA for final action. soldier is in a no pay due status, that
concurrence, delay proceedings until (3) If the investigating officer’s office will promptly notify the approval
the end of the next pay period to permit recommended assessment is more than authority of this fact in writing.
restitution. If the soldier makes payment $5,000, the CJA or claims attorney will, (j) Remission of indebtedness. 10
to the claimant’s full satisfaction, the upon legal review, forward the claim U.S.C. 4837, which authorizes the
SPCMCA will dismiss the claim. file to the head of the ACO, who will remission and cancellation of
(2) In the absence of full restitution, also conduct a legal review within five indebtedness of an enlisted person to
the investigating officer will determine working days. the United States or its
whether the claim is cognizable and (i) If the recommended assessment instrumentalities, is not applicable and
meritorious under the provisions of does not exceed $10,000, the head of the may not be used to remit and cancel
Article 139, UCMJ, and this subpart, and ACO will forward the claim file to the indebtedness determined as a result of
the amount to be assessed against each GCMCA for final action. action under Article 139, UCMJ.
offender. This amount will be reduced (ii) If the recommended assessment
by any restitution the claimant accepts exceeds $10,000, the head of the ACO § 536.133 Reconsideration of UCMJ
from an offender in partial satisfaction. will forward the claim file to the claims.
Within 10 working days, or such time as GCMCA for approval of an assessment (a) General. Although Article 139,
the SPCMCA may determine, the up to $10,000 and for a recommendation UCMJ, does not provide for a right of
investigating officer will submit written of an additional assessment. The head of appeal, either the claimant or a soldier
findings and recommendations to the the ACO will then forward the claims whose pay is assessed may request the
SPCMCA. file and the GCMCA’s recommendation approval authority (SPCMCA or
(3) If the soldier is absent without to the Commander USARCS for GCMCA, depending on the amount
leave and cannot be notified, a claims approval. assessed) or successor in command to
office may process the Article 139 claim (h) Final action. After consulting with reconsider the action. Either party must
in the soldier’s absence. If an the legal advisor, the approval authority submit such a request for
assessment is approved, forward a copy will disapprove or approve the claim in reconsideration in writing and clearly
of the claim and the memorandum an amount equal to, or less than, the state the factual or legal basis for the
authorizing pay assessment by amount of the assessment limitation. relief requested. The approval authority
transmittal letter to the servicing The approval authority is not bound by may direct that the matter be
Defense Accounting Office (DAO) for the findings or recommendations of the reinvestigated.
offset against the soldier’s pay. If the investigating officer; AR 15–6, (b) Reconsideration by the original
soldier is dropped from the rolls, the paragraph 2–3a. The approval authority approval authority. The original
servicing DAO will forward the will notify the claimant, and any soldier approval authority may reconsider the
assessment documents to: Commander, subject to that officer’s jurisdiction, of action at any time while serving as the
Defense Finance and Accounting the determination and the right of any approval authority for the claim in
question, even after the transfer of the (b) Claims arising from the acts or 4801, 4802 and 4808). A maritime claim
soldier whose pay was assessed. The omissions of the U.S. Armed Forces in may be settled under the FCA.
original approval authority may modify the Marshall Islands or the Federated
the action if it was incorrect, subject to States of Micronesia are settled in § 536.137 Claims payable under the
Foreign Claims Act.
paragraph (d) of this section. However, accordance with Art. XV, Non-
the approval authority should modify contractual Claims, of the U.S.-Marshall (a) A claim for death, personal injury,
the action only because of fraud, Islands and Micronesian Status of or loss of or damage to property may be
substantial new evidence, errors in Forces Agreement (the ‘‘SOFA’’) (posted allowed under this subpart if the alleged
calculation, or mistake of law. on the USARCS Web site; for the damage results from noncombat activity
(c) Reconsideration by a successor in address see § 536.2(a)). This is pursuant or a negligent or wrongful act or
command. Subject to paragraph (d) of to the ‘‘agreed upon minutes’’ that are omission of soldiers or civilian
this section, a successor in command appended to the SOFA, pursuant to employees of the U.S. armed forces, as
may modify an action only because of Section 323 of the Compact of Free enumerated in § 536.23(b), regardless of
fraud, substantial new evidence, errors Association between the U.S. and the whether the act or omission was made
in calculation, or mistake of law Marshall Islands and the Federated within the scope of their employment.
apparent on the face of the record. States of Micronesia, enacted by Public This includes non-U.S. citizen
(d) Legal review and action. Prior to Law 99–239, January 14, 1986. (The employees recruited elsewhere but
modifying the original action, the Compact may be viewed at http:// employed in a country of which they are
approval authority will have the www.fm/jcn/compact/relindex.html). not a citizen. However, a claim
servicing claims office render a legal The ‘‘agreed upon minutes’’ state that generated by non-U.S. citizen
opinion and fully explain the basis for ‘‘all claims within the scope of employees in the country in which they
modification as part of the file. If the paragraph 1 of Article XV [Claims], [of were recruited and are employed will be
legal review agrees that a return of the the Compact] * * * shall be processed payable only if the act or omission was
assessed pay is appropriate, the and settled exclusively pursuant to the made in the scope of employment. But
approval authority should request in Foreign Claims Act, 10 U.S.C. 2734, and claims arising from the operation of U.S.
writing that the claimant return the any regulations promulgated in armed forces vehicles or other
money, setting forth in the letter the implementation thereof.’’ Therefore, equipment by such employees may be
basis for the request. There is no Title I, Article 178 of the Compact, paid, even though the employees are not
authority for repayment from regarding claims processing, is not acting within the scope of their
appropriated funds. applicable to claims arising from the employment, provided the employer or
(e) Disposition of files. After owner of the vehicle or other equipment
acts or omissions of the U.S. armed
completing action on reconsideration, would be liable under local law in the
forces, but only to other federal
the approval authority will forward the circumstances involved.
agencies. Those agencies are required to
reconsideration action to the servicing (b) Claims generated by officers or
follow the provisions of the Federal Tort
claims office, which will then file the civilian employees of the American
action per § 536.132(h). Claims Act, 28 U.S.C. 2672.
Battle Monuments Commission (36
§ 536.134 Additional claims judge
§ 536.136 Scope for claims arising under U.S.C. 2110), acting within the scope of
the Foreign Claims Act. employment, will be paid from
advocate and claims attorney
responsibilities (for UCMJ claims). (a) Application. This subpart, which American Battle Monuments
In addition to the duties set forth in is applicable outside the United States, Commission appropriations.
this subpart, the CJA or claims attorney its commonwealths, territories and (c) Claims for the loss of, or damage
is responsible for forwarding copies of possessions, including areas under the to, property that may be settled under
completed Article 139 actions to jurisdiction of the United States, this subpart include the following:
USARCS, maintaining a log, monitoring implements the FCA and prescribes the (1) Real property used and occupied
the time requirements of pending substantive basis and special procedural under lease, express, implied, or
Article 139 actions, and publicizing the requirements for settlement of claims of otherwise. See § 536.34(m) of this part
Article 139 program to commanders, inhabitants of a foreign country, or of a and paragraph 2–15m of DA Pam 27–
soldiers, and the community. foreign country or a political 162.
subdivision thereof, against the United (2) Personal property bailed to the
Subpart J—Claims Cognizable Under States for personal injury, death, or government under an agreement,
the Foreign Claims Act property damage caused by service express or implied, unless the owner
members or civilian employees, or has expressly assumed the risk of
§ 536.135 Statutory authority for the
claims that arise incident to noncombat damage or loss.
Foreign Claims Act.
(a) The statutory authority for this activities of the armed forces. § 536.138 Claims not payable under the
subpart is the Act of August 10, 1956, (b) Effect of Military Claims Act Foreign Claims Act
10 U.S.C. 2734 (70 Stat. 154), commonly (MCA). Claims arising in foreign A claim is not payable if it:
referred to as the Foreign Claims Act countries will be settled under the MCA (a) Results wholly from the negligent
(FCA), as amended by Public Law 86– if the injured party is an inhabitant of or wrongful act of the claimant or agent;
223, September 1959 (73 Stat. 453); the U.S., for example, a member of the (b) Is purely contractual in nature;
Public Law 86–411, April 1960 (74 Stat. U.S. armed forces, a U.S. civilian (c) Arises from private or domestic
16); Public Law 90–521, September employee, or a family member of either obligations as distinguished from
1968 (82 Stat. 874); Public Law 91–312, category. In a wrongful death case, if the government transactions;
July 1970 (84 Stat. 412); Public Law 93– decedent is an inhabitant of a foreign (d) Is based solely on compassionate
336, July 1974 (88 Stat. 292); Public Law country, even though his survivors are grounds;
96–513, Title V, section 511 (95), U.S. inhabitants, the FCA will apply. (e) Is a bastardy claim for child
December 1980 (94 Stat. 2928). It is See § 536.74(c). support expenses;
posted on the USARCS Web site; for the (c) Effect of Army Maritime Claims (f) Is for any item whose acquisition,
address see § 536.2(a). Settlement Act (AMCSA) (10 U.S.C. possession, or transportation is in
violation of Department of the Army § 536.139 Applicable law for claims under bankruptcy will be forwarded to the
(DA) or Department of Defense (DOD) the Foreign Claims Act. Commander USARCS without delay,
directives, such as illegal war trophies. (a) Venue of incident and domicile of setting forth all pertinent information,
(g) Is for rent, damage, or other claimant. In determining an appropriate including the alleged reasons for the
payments involving the acquisition, use, award, apply the law and custom of the bankruptcy and the facts concerning the
possession, or disposition of real country in which the incident occurred licensing of the insurer.
property or interests therein by and for to determine which elements of (d) Deductions for amounts paid by
the DA. See § 536.34(m) of this part and damages are payable and which tortfeasor. Settlement authorities will
paragraph 2–15m of DA Pam 27–162. individuals are entitled to deduct from the damages any direct
(h) Is not in the best interest of the compensation. However, where the payments by a member or civilian
United States, is contrary to public claimant is an inhabitant of another employee of the U.S. armed forces for
foreign country and only temporarily damages (other than solatia).
policy, or otherwise contrary to the
within the country in which the
basic intent of the governing statute (10 § 536.140 Appointment and functions of
incident occurred, the quantum of
U.S.C. § 2734); for example, claims for Foreign Claims Commissions.
certain elements of damages, such as
property loss or damage, or personal (a) Claims cognizable under this
lost wages and future medical care, may
injury or death caused by inhabitants of subpart will be referred to the command
be calculated based on the law and
unfriendly foreign countries or by responsible for claims arising within its
economic conditions in the country of
individuals considered to be unfriendly geographic area of responsibility,
the claimant’s permanent residence.
to the United States. including claims transferred by
Where the decedent is the subject of a
(i) Is presented by a national, or a wrongful death case, the quantum will agreement between the services
corporation controlled by a national, of be determined based on the country of involved. The senior judge advocate of
a country at war or engaged in armed the decedent’s permanent residence a command having a command claims
conflict with the United States, or any regardless of the fact that his survivors service, or his delegee, will appoint a
country allied with such enemy country live in the U.S. or a different foreign sufficient number of Foreign Claims
unless the appropriate settlement country than the decedent. See § 536.77 Commissions (FCCs) to dispose of the
authority determines that the claimant for further damages guidance. claims. If there is no command claims
is, and at the time of the incident was (b) Other guidance. The guidance set service, the responsible commander
friendly to the United States. A prisoner forth in §§ 536.77(b) through (d) as to may ask the Commander USARCS for
of war or an interned enemy alien is not allowable elements of damages is permission to establish one. Otherwise,
excluded from filing a claim for damage, generally applicable. Where moral the Commander USARCS will appoint a
loss, or destruction of personal property damages, as defined in DA Pam 27–162, sufficient number of FCCs from
within the federal government’s custody paragraph 2–53c(4), are permitted, such personnel furnished by the command
if the claim is otherwise payable. damages are payable. In some countries involved. See § 576.3(d) of this chapter
(j) Is for damages or injury, the claim it is customary to get a professional for more information about command
for which a receiving State should appraisal to substantiate certain claims claims services.
adjudicate and pay pursuant to an and pass this cost on to the tortfeasor. (b) The Commander USARCS will
international agreement, subject to The Commander USARCS or the chief appoint all other FCCs to act on all other
waiver by the Commander USARCS. See of a command claims service may, as an claims, regardless of where such claims
DA Pam 27–162, paragraph 3–4a(2), for exception to policy, permit the arose, unless they arose in a country for
a discussion of the conditions of waiver. reimbursement of such costs in which single-service responsibility has
(k) Is listed in §§ 536.45 and 536.46, appropriate cases. Where feasible, been assigned to another service. FCCs
except for the exclusions listed in claimants should be discouraged from appointed by the Commander USARCS
§§ 536.45(e), (h) and (k). Additionally, incurring such costs. at units based in the continental United
the exclusions set forth in §§ 536.45(a) (c) Deductions for insurance. (1) States (CONUS) may act on any claim
and (b) do not apply to a claim arising Insurance coverage recovered or arising out of such unit’s operations.
incident to noncombat activities. recoverable will be deducted from any Any FCC operating in, or adjudicating
(l) Is brought by a subrogee. award. In that regard, every effort will claims arising out of, a geographical area
be made to monitor the insurance aspect within a command claims service’s
(m) Is covered by insurance on the of the case and encourage direct jurisdiction, will comply with that
involved U.S. Armed Forces’ vehicle or settlement between the claimant and the service’s legal and procedural rules.
the tortfeasor’s privately owned vehicle insurer of the tortfeasor. (c) An FCC may operate as an integral
(POV), in accordance with requirements (2) When efforts under paragraph part of a command claims service,
of a foreign country, unless the claim (c)(1) of this section are of no avail, or which will determine the cases to be
exceeds the coverage or the insurer is when it otherwise is determined that an assigned to it, furnish necessary
insolvent. See § 536.139(c). insurance settlement will not be administrative services, and establish
(n) Is payable under subpart C of this reasonably available for application to and maintain its records. Where an FCC
part or AR 27–20, chapter 11. the award, no award will be made until does not operate as part of a command
(o) Is brought by or on behalf of a the chief of the command claims service claims service, it may operate as part of
member of a foreign military force for or the Commander USARCS, has first the office or a division, corps or higher
personal injury or death arising incident granted consent. In such cases, an command staff judge advocate (SJA),
to service, or pursuant to combined assignment of the insured’s rights which will perform the foregoing
military operations. Combined military against the insurer will be obtained and, functions.
operations include exercises and United in appropriate cases, reimbursement (d) An appointing authority who
Nations and North Atlantic Treaty action will be instituted against the appoints or relieves an FCC whom he or
Organization (NATO) peacekeeping and insurer under applicable procedures. she has appointed will forward one
humanitarian missions. Derivative (3) If an insurance settlement is not copy of each order addressing an FCC’s
claims arising from these incidents are available due to the insurer’s insolvency appointment, relief, or change of
also excluded. or bankruptcy, a report on the responsibility to the Commander
USARCS. Upon receipt of an initial a general policy issue, the FCC may authority. The appointing orders will
appointing order, the Commander request an advisory opinion from the clearly designate the president of a
USARCS will assign an office code Commander USARCS or the chief of the three-member FCC. Two members of a
number to the FCC. Without such a command claims service while retaining three-member FCC will constitute a
number the FCC has no authority to the claim for final action at its level. quorum, and the FCC’s decision will be
approve or pay claims. See AR 27–20, (3) Upon completing of its evaluation determined by majority vote.
paragraph 13–1. of the claimant’s response, the FCC will (b) Upon approval by the Commander
(e) Normally, the FCC is responsible notify the claimant of its final decision USARCS and the appropriate authority
for the investigation of all claims and advise the claimant that its action of another uniformed service, the
referred to it, using both the procedures is final and conclusive as a matter of membership may be composed of one or
set forth in subpart B of this part and law (10 U.S.C. 2735), unless the final more members of another uniformed
any local procedures established by the decision is a recommendation for service. If another service has single-
appointing authority or command payment above its authority. In that service responsibility over the foreign
claims service responsible for the case, the FCC will forward any response country in which the claim arose, that
geographical area in which the claim submitted by the claimant along with its service is responsible for the claim. If
arose. Chiefs of a command claims claims memorandum of opinion to the requested, the Commander USARCS
service may request assistance on claims approval authority, and will notify the may furnish a JAG officer or claims
investigation within their geographical claimant accordingly. attorney to be a member of another
areas from units or organizations other (4) When an FCC determines that a service’s FCC.
than the FCC. The Commander USARCS claim is valued at more than $50,000 or
may make the same request for any all claims arising out of a single incident § 536.142 Qualification of members of
claim referred to an FCC appointed are valued at more than $100,000, the Foreign Claims Commissions.
under his or her authority. file will be transferred to the Normally, a member of an FCC will be
(f) When an FCC intends to deny a Commander USARCS for further action; either a commissioned officer or a
claim, or offer an award less than the see § 536.143(d)(2). Upon request of the claims attorney. At least two members
amount claimed, it will notify in writing Commander USARCS, the FCC may of a three-member FCC must be JAs or
the claimant, the claimant’s authorized negotiate a settlement, the amount of claims attorneys. In exigent
agent, or legal representative of the which exceeds the FCC’s authority; circumstances, a qualified non-lawyer
intended action on the claim and the however, prior approval by a higher employee of the armed forces may be
legal and factual bases for that action. If authority is required. appointed to an FCC, subject to prior
the FCC proposes a partial award, a (5) Every reasonable effort should be approval by the Commander USARCS.
settlement agreement should be made to negotiate a mutually agreeable Such approval may be granted only
enclosed with the notice. Claimants will settlement on meritorious claims. When upon a showing of the employee’s status
be advised that they may either accept an agreement can be reached, the notice and qualifications and adequate
the FCC action by returning the signed and response provisions above are not justification for such appointment (for
settlement agreement or, if dissatisfied necessary. If the FCC recommends an example, lack of legally qualified
with the FCC’s action, they may submit award in excess of its monetary personnel). The FCC will be limited to
a request for reconsideration stating the authority, the settlement agreement employees who are citizens of the
factual or legal reasons why they believe should indicate that its recommendation United States. An officer, claims
the FCC’s proposed action is incorrect. is contingent upon approval by higher attorney, or employee of another armed
This notice serves to give the claimant authority. force will be appointed a member of an
an opportunity to request (g) The chief of an overseas command Army FCC only if approved by the
reconsideration of the FCC action and claims service may delegate to a one- Commander USARCS.
state the reasons for the request before member FCC the responsibility for the
final action is taken on the claim. When receipt, processing, and investigation of § 536.143 Settlement authority of Foreign
the FCC intends to award the amount Claims Commissions.
any claim, regardless of amount, except
claimed, or recommend an award equal those required to be referred to a (a) In order to determine whether the
to the amount claimed to a higher receiving State office for adjudication claim will be considered by a one-
authority, this procedure is not under the provisions of a treaty member or three-member FCC, the
necessary. However, a settlement concerning the status of U.S. forces in claimed amount will be converted to the
agreement is required for all awards, full the country in which the claim arose. If, U.S. dollar equivalent (based on the
or partial. See § 536.63(a). after investigation, it appears that action annual Foreign Currency Fluctuation
(1) This notice should be given at by a three-member FCC is appropriate, Account exchange rate, where
least 30 days before the FCC takes final the one-member FCC should send the applicable). However, the FCC’s
action, except on small claims claim to the appropriate three-member jurisdiction to approve is determined by
processed pursuant to § 536.33. The FCC with a complete investigation the conversion rate on the date of final
notice should be mailed via certified or report, including a discussion of the action. Accordingly, if the value of the
registered mail to the claimant. The applicable local law and a U.S. dollar has decreased, the FCC will
claimant should be informed that any recommendation for disposition. forward the recommendation to a higher
request for reconsideration should be authority, if necessary.
addressed to the FCC that took final § 536.141 Composition of Foreign Claims (b) Payment will be made in the
action, and that all materials the Commissions. currency of the country in which the
claimant wishes the FCC to consider (a) Normally, an FCC will be incident occurred or in which the
should be included with the request for composed of either one or three claimant resided at the time of the
reconsideration. members. Alternate members of three- incident, unless the claimant requests
(2) An FCC may alter its initial member FCCs may be appointed when payment in U.S. dollars or another
decision based on the claimant’s circumstances require, and may be currency and such request is approved
response or proceed with the intended substituted for regular members on by the chief of a command claims
action. If the claimant’s response raises specific cases by order of the appointing service or the Commander USARCS.
However, if the claimant resides in claimed or the recommendation of the made. The basis for a change in action
another foreign country at the time of FCC forwarding the claim; or, if a claim will be stated in a memorandum
payment, payment in an amount is forwarded to USARCS for approval of included in the file. For example, a
equivalent to that which would have payment in excess of $50,000, refer the claim was settled for $15,000, but the
been paid under the preceding sentence claim back to the FCC or another FCC settlement agreement was typed to read
may be made in the currency of that for further action. ‘‘$1,500’’ and the error is not discovered
third country without the approval of (f) Payments in excess of $100,000 until the file is being prepared for
the Commander USARCS. will be approved by the Secretary of the payment. If appropriate, a corrected
(c) A one-member FCC may consider Army, the Army General Counsel as the payment will be made. A settlement
and pay claims presented in any amount Secretary’s designee, or other designee authority who has reason to believe that
provided a mutually agreed settlement of the Secretary. a settlement was obtained by fraud on
may be reached in an amount not (g) Following approval where the part of the claimant or the claimant’s
exceeding the FCC’s monetary authority. required and receipt of an agreement by legal representative, will reopen action
A one-member FCC may deny any claim the claimant accepting the specific sum on that claim and, if the belief is
when the claimed amount does not awarded by the FCC, the claim will be substantiated, correct the action. The
exceed its monetary authority. Unless processed for payment in the basis for correcting an action will be
otherwise restricted by the appointing appropriate currency. The first $100,000 stated in a memorandum and included
authority, a one-member FCC who is a of any award will be paid from Army in the file.
JA or claims attorney has $15,000 claims funds. The excess will be (b) A successor approval or settlement
monetary authority, while any other reported to the Financial Management authority (including TAJAG, TJAG,
one-member commission has $5,000 Service, Department of Treasury, with Secretary of the Army, or the Secretary’s
monetary authority. the documents listed in DA Pam 27– designees). (1) Reconsideration. A
(d) A three-member FCC, unless 162, paragraph 2–81. successor approval or settlement
otherwise restricted by the appointing (h) If the settlement authority upholds authority may reconsider the denial of,
authority, may take the following a final offer or authorizes an award on or final offer on, an FCA claim upon
actions on a claim that is properly appeal from a denial of a claim, the request of the claimant or the claimant’s
before it: notice of the settlement authority’s authorized agent only on the basis of
(1) Disapprove a claim presented in action will inform the claimant that he fraud, substantial new evidence, errors
any amount. After following the or she must accept the award within 180 in calculation, or mistake
procedures in § 536.140, including days of the date of mailing of the notice (misinterpretation) of law.
reconsideration, the disapproval is final of the settlement authority’s action or (2) Settlement correction. A successor
and conclusive under 10 U.S.C. 2735. the award will be withdrawn, the claim approval or settlement authority may
The FCC will inform the appointing will be deemed denied, and the file will reopen and correct a predecessor’s
authority of its action. After it takes be closed without future recourse. action on a claim that was previously
final action and disapproves a claim settled in whole or in part for the same
presented in any amount over $50,000, § 536.144 Reopening a claim after final reasons that an original authority may
the FCC will forward to the appointing action by a Foreign Claims Commission.
do so.
authority the written notice to the (a) Original approval or settlement (c) Time requirement for filing request
claimant required by § 536.140(f), any authority (including TAJAG, TJAG, for reconsideration. Requests
response from the claimant, and its Secretary of the Army, or the Secretary’s postmarked more than five years from
notice of final action on the claim. designees). (1) An original settlement the date of mailing of final notice will
(2) Approve and pay meritorious authority may reconsider the denial of, be denied based on the doctrine of
claims presented in any amount. (i) or final offer on a claim brought under laches.
Claims paid in full or in part for an the FCA upon request of the claimant or (d) Finality of action. Action by the
amount not exceeding $50,000 will be the claimants authorized agent. In the appropriate authority (either affirming
paid after any reconsideration as set absence of such a request, the settlement the prior action or granting full or
forth in § 536.140. This action is final authority may reconsider a claim on its partial relief) is final under the
and conclusive under 10 U.S.C. 2735. own initiative. provisions of 10 U.S.C. 2735. Action
(ii) Claims valued at an amount (2) An original approval or settlement upon request for reconsideration
exceeding $50,000, or multiple claims authority may reopen and correct action constitutes final administrative
arising from the same incident valued at on an FCA claim previously settled in disposition of a claim. No further
more than $100,000, will be forwarded whole or in part (even if a settlement requests for reconsideration will be
through the appointing authority with a agreement has been executed) when it allowed except on the basis of fraud.
memorandum of opinion to the appears that the original action was
Commander USARCS for action; see DA incorrect in law or fact based on the § 536.145 Solatia payment.
Pam 27–162, paragraph 2–60. The evidence of record at the time of the Payment of solatia in accordance with
memorandum of opinion will discuss action or subsequently received. For local custom as an expression of
the amount for which the claimant will errors in fact, the new evidence must sympathy toward a victim or his or her
settle and include the recommendation not have been discoverable at the time family is common in some overseas
of the FCC. of final action by either the Army or the commands. Solatia payments are known
(e) The Judge Advocate General claimant through the exercise of to be a custom in the Federated States
(TJAG), The Assistant Judge Advocate reasonable diligence. Corrective action of Micronesia, Japan, Korea, and
General (TAJAG) and the Commander may also be taken when an error Thailand. In other countries, the FCC
USARCS, or his or her designee serving contrary to the parties’ mutual should consult the command claims
at USARCS, may approve and pay, in understanding is discovered in the service or Commander USARCS for
whole or in part, any claim as long as original action. If it is determined that guidance. Such payments are not to be
the amount of the award does not the original action was incorrect, the made from the claims expenditure
exceed $100,000; may disapprove any action will be modified, and if allowance. These payments are made
claim, regardless of either the amount appropriate, a supplemental payment from local operation and maintenance
funds. This applies even where a (2) Claims arising outside the United paragraph 2–12. Assistance will be
command claims service is directed to States, its territories, commonwealths, furnished to the insurer as needed.
administer the command’s solatia or possessions. Such claims will be Copies of any other required
program. See, for example, United processed in accordance with the investigations may be furnished to the
States Forces Korea Regulation 526–11 provisions of applicable Status of Forces insurer.
regarding solatia amounts and Agreements (SOFAs) or in the manner (2) The claim will be reviewed at key
procedures. prescribed by subparts C, D, E, F, H or intervals to ensure that progress is being
J of this part, as appropriate. made, negotiations are properly
Subpart K—Nonappropriated Fund (b) Reporting and investigation. Such conducted, and the file is closed. The
Claims claims will be investigated in Commander USARCS will be advised of
accordance with AR 215–1 and subpart any problems.
§ 536.146 Claims against nonappropriated
fund employees—generally. B of this part. (3) If requested by either the insurer
(1) Reporting. Personal injury, death, or NAFI officials, the appropriate claims
This subpart sets forth the procedures or property damage resulting from
to follow in the settlement and payment authority will assist in or conduct
vehicular collisions, falls, falling negotiations.
of claims generated by the acts or objects, assaults, or accidents of similar
omissions of the employees of (4) Where NAFI vehicles are required
nature will be reported immediately to to be covered by insurance in foreign
nonappropriated fund (NAF) activities. the person in charge of the NAFI or
NAF activities include NAF or Army countries, the insurer will process the
activity at which it occurred. The report claim. However, if the policy coverage
and Air Force Exchange Service should be made by the employee who
(AAFES) facilities, post exchanges, limit is exceeded or the insurer is
initially received notice of the incident, insolvent, the claim may be processed
bowling centers, officers and even if the individual involved denies
noncommissioned officers’ clubs, and under subpart G, §§ 536.114 through
sustaining personal injury or property 536.116 (Claims arising overseas) or, if
other facilities located on land or damage. Upon receipt of the report of
situated in a building used by an subpart G does not apply, under
the incident, the person in charge of the subparts C or J of this part. See
activity that employs personnel NAF activity concerned will transmit
compensated from NAFs. § 536.139(c) for additional guidance.
the report to the area claims office
§ 536.147 Claims by NAFI employees for (ACO) or claims processing office (CPO) § 536.149 Identification of persons whose
losses incident to employment. for investigation. actions may generate liability.
Claims by employees for the loss of or (2) Investigation. Claims arising out of Claims resulting from the acts or
damage to personal property incident to acts or omissions of employees of NAF omissions of members of the classes of
employment will be processed in the activities will be investigated in the persons listed below may be processed
manner prescribed by AR 27–20, manner set forth in subpart B of this under this section. An ACO or a CPO
chapter 11 and will be paid from NAFs part. A determination as to whether the authority will ask the Commander
in accordance with § 536.152. claim is cognizable under this section USARCS, for an advisory opinion prior
will be made as soon as practicable. to settling any claim where the person
§ 536.148 Claims generated by the acts or (c) Customer complaints. AAFES- whose conduct generated the claim does
omissions of NAFI employees. generated complaints will be handled in not clearly fall within one of the
(a) Processing. Claims arising out of accordance with Exchange Service following categories:
acts or omissions of employees of NAFI Manual 57–2. NAFI-generated (a) Civilian employees of NAFI
activities will be processed and settled complaints will be handled in activities whose salaries are paid from
in the manner specified for similar accordance with AR 215–1, chapter 3. NAFs.
claims against the United States, except Complaints generated by appropriated (b) Active duty military personnel
that payment will be made from NAFs funds laundry and dry-cleaning while performing off-duty part-time
in accordance with AR 215–1 (Morale, operations will be handled in work for which they are compensated
Welfare, and Recreation Activities and accordance with AR 210–130, chapter 2. from NAFIs, not to include members
Nonappropriated Fund Complaints generated by refunds of who are acting in their capacity as an
Instrumentalites) and § 536.152 of this sales proceeds will be handled in officer or other official of the NAFI.
part. accordance with Exchange Operating (c) Volunteers serving in an official
(b) Procedural requirements. Procedures (EOP) 57–2. capacity in furtherance of the business
Procedural requirements of this part’s (d) Commercial insurance. Certain of the United States, limited to those
pertinent subparts, as stated below, will NAFI activities (such as flying and categories set forth in DA Pam 27–162,
be followed except as provided in parachute activities, and all AAFES paragraph 2–45d.
§§ 536.151 and 536.152. However, when concessionaires) may have private
the Nonappropriated Fund commercial insurance. § 536.150 Claims payable from
Instrumentality (NAFI) is protected by a (1) A claims investigation under appropriated funds.
commercial insurer (for example, flying subpart B of this part will not be Claims payable from appropriated
and parachute activities), the claim will conducted except when the claim’s funds (APFs) will be processed under
be referred to the insurer as outlined in estimated value may exceed the the appropriate subpart. Appropriated
§ 536.148(d). See Department of Defense insurance policy limits. In that event, fund payable claims include those
Directive (DODD) 5515.6, dated the Commander USARCS, will be resulting from:
November 3, 1956, posted on the notified immediately and an (a) Acts or omissions of military
USARCS Web site (see § 536.2(a)). investigation will be conducted with a personnel while performing assigned
(1) Claims arising within the United view to determining whether the United military duties in connection with NAFI
States, its territories, commonwealths, States may be liable under subparts C, activities.
or possessions. Such claims will be D, F, H or J of this part. Otherwise, the (b) Acts or omissions of civilian
processed in the manner prescribed by ACO or CPO will refer the claim to the employees paid from appropriated
subparts C, D, E, F, H or J of this part, insurer and furnish copies to the funds in connection with NAFI
as appropriate. USARCS AAO, as required in AR 27–20, activities.
(c) Negligent maintenance of an (b) Reimbursement to a foreign the family child care program that are
appropriated funds facility used by a country of the United States’ pro rata caused by the negligence of authorized
NAFI activity but for which the share of a claim paid pursuant to an providers. Claims arising from the
Department of Defense or Department of international agreement will be made transportation of such children in motor
the Army (DA) command concerned is from NAFs. vehicles and claims involving loss of or
responsible and has been notified of the damage to property are not cognizable.
§ 536.153 Claims involving tortfeasors
deficiency by the NAF. Where liability other than nonappropriated fund (b) An ACO or a CPO will ask the
is determined to exist for both a NAFI employees: NAFI contractors. Commander USARCS for an advisory
and an appropriated fund activity, opinion prior to settling any non-NAFI
AAFES concessionaires and NAFI
liability will be apportioned between RIMP claim where the person whose
contractors, such as entertainment
the two activities. conduct generated liability does not fall
performers or groups, carnival
(d) Temporary use of a NAFI facility clearly within the categories listed
operators, and fireworks displayers are
by an appropriated fund activity. above. Such authorities may also ask,
considered independent contractors and
(e) Operation of government owned or through the Commander USARCS, for
claims arising from their activities
rented vehicles on authorized missions an advisory opinion from the U.S. Army
should be disposed of as set forth in DA
for NAFI activities where the driver is Community and Family Support Center
Pam 27–162, paragraph 2–15f. If a
a DA soldier or civilian employee and prior to settling any claim arising under
dispute arises as to the availability of
is paid from APFs. paragraph (a)(2) of this section, where it
liability or workers compensation
insurance the claims should be referred is not clear that the injured or deceased
§ 536.151 Settlement authority for claims
generated by acts or omissions of NAFI to AAFES Dallas (see address in child was receiving care within the
employees. § 536.30(e)(4)) or the Central Insurance scope of the family child care program.
(a) Settlement. Claims cognizable Fund, U.S. Army Community and (c) Where liability has been
under this section and processed under Family Support Agency as applicable. determined to exist for both non-NAFI
subparts C, D, E, G, H or J of this part RIMP and APF activities, liability will
§ 536.154 Claims involving tortfeasors be apportioned between the two
will be settled by claims authorities other than nonappropriated fund
authorized to settle claims under those activities.
employees: NAFI risk management program
subparts subject to the same monetary (d) The total payment for all claims
(RIMP) claims.
and denial authority limitations, except (including derivative claims), arising as
The risk management program (RIMP) a result of injury to, or death of, any one
that The Judge Advocate General is administered by the U.S. Army
(TJAG), The Assistant Judge Advocate person is limited to $500,000 for each
Community and Family Support Center incident. Continuous or repeated
General (TAJAG), and the Commander under the provisions of AR 215–1 and
USARCS may settle such claims without exposure to substantially the same or
AR 608–10 (Family Child Care Provider similar harmful activity or conditions is
regard to monetary limitations. Claims). Providers in order to encourage
However, the approval of the Attorney treated as one incident for purposes of
authorized personnel, that is, military determining the limits of liability.
General or Assistant General Counsel and civilian employees, to use the
may be required for an apportioned family child care program and sports § 536.156 Procedures for claims involving
amount to be paid from APFs when equipment, such claims are processed in tortfeasors other than nonappropriated
subpart D of this part procedures are a manner similar to NAFI claims in fund employees.
used and the amount to be paid from §§ 536.146 through 536.152 of this (a) Reporting. Non-NAFI RIMP claims
APFs exceeds $200,000. Similarly, subpart. Certain claims are payable from (regardless of the amount claimed) and
approval of TAJAG, the Attorney nonappropriated funds even though the incidents that could give rise to non-
General or the Assistant General U.S. is not liable under the FTCA or the NAFI RIMP claims will be reported to
Counsel is required when using MCA as the tortfeasor is not an USARCS and the Army Central
procedures under subparts C, F, H, or J appropriated fund or nonappropriated Insurance Fund immediately.
of this part and an apportioned amount fund employee. (b) Investigation. ACOs and CPOs are
to be paid from APFs exceeds the limits
§ 536.155 Claims payable involving
responsible for the investigation of non-
set for the Commander, USARCS.
tortfeasors other than nonappropriated NAFI RIMP claims. Such investigation
(b) Finality of settlement. A
fund employees. will be closely coordinated with
determination made by a claims
(a) Non-NAFI RIMP claims can arise program managers responsible for the
settlement authority on a claim
from the activities of: activity generating the claim. Close
processed under subpart D of this part
(1) Members of NAFIs or authorized coordination with USARCS is also
is subject to suit. A claim processed
users of NAFI sports equipment or required, and USARCS will maintain
under subparts C or F of this part may
devices for recreational purposes, while mirror files containing the investigative
be appealed. Claims processed under
using such property, except real materials of all actual and potential
subparts C, D, E, H, or J of this part, or
property, in the manner and for the claims.
AR 27–20, chapter 11 may be
reconsidered in accordance with the purposes authorized by DA regulations (c) Payment. Non-NAFI RIMP claims
sections addressing reconsideration in and the charter, constitution, and will be transmitted for payment to: The
those subparts (or paragraphs in the case bylaws of the particular NAF activity. Army Central Insurance Fund, ATTN:
of Chapter 11). (2) Family child care providers, CFSC–FM–I, 4700 King Street,
authorized members of the provider’s Alexandria, VA 22302–4406.
§ 536.152 Payment of claims generated by household and approved substitute (d) Commercial insurance. The
acts or omissions of NAFI employees. providers while care under the family provisions of § 536.148(d) also apply to
(a) The settlement or approval child care program is being provided in claims arising under this section, except
authority will forward the appropriate the manner prescribed in AR 608–10, that in claims involving family child
payment documents to the office listed except as excluded below. Such claims care providers, a claims investigation
in DA Pam 27–162, paragraph 2–80h, are generally limited to injuries to, or will be conducted regardless of whether
for payment. death of, children receiving care under commercial insurance exists.
§ 536.157 Settlement/approval authority Counsel is required as set forth in (2) The above authorities are not
for claims involving tortfeasors other than § 536.151(a). delegated authority to deny or make a
nonappropriated fund employees. final offer on a claim under this section.
(b) Approval authority. (1) The staff
(a) Settlement authority. TJAG, judge advocate, Commander or chief of Claims requiring such action will be
TAJAG, and the Commander USARCS a command claims service, and a head forwarded to the Commander USARCS
are authorized to approve in full or in of an area claims office are authorized with an appropriate recommendation.
part, or deny a non-NAFI RIMP claim, to approve in full or in part non-NAFI (c) Finality of settlement. A denial or
regardless of the amount claimed, RIMP claims presented in the amount of final offer on a non-NAFI RIMP claim is
except where an apportioned amount to final and conclusive and is not subject
$50,000 or less, provided the acceptance
to reconsideration or appeal.
be paid from APFs exceeds their is in full settlement and all claims and
monetary authority and the action of the potential claims arising out of a single [FR Doc. 06–6789 Filed 8–10–06; 8:45 am]
Attorney General or Assistant General incident do not exceed $100,000. BILLING CODE 3710–08–P

Proposed Rule: Claims and Accounts: Claims Against United States

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Proposed Rule: Claims and Accounts: Claims Against United States

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Friday,

August 11, 2006

32 CFR Part 536

A. Background 536.16 Release of information policies.

commands. compromise claims in a manner that clearly identified to facilitate resolution

(102 Stat. 2005)). No new liability is

emotional distress may only be furnished gratuitously by a family conjugal relation.

(ACO). federal funds. For claims purposes, chapter 11.

does not provide redress for indirect,

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