# The Army Claims System; Final Rule

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URL: https://www.frixlaw.com/law-library/documents/fr%3A94-29167

## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** December 12, 1994

## Text

DEPARTMENT OF DEFENSE

Department of the Army

32 CFR Parts 536 and 537

The Army Claims System

AGENCY: Department of the Army, DOD.

ACTION: Final rule.

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

EFFECTIVE DATE: December 12, 1994.

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

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

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

Executive Order 12291

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

Regulatory Flexibility Act

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

Paperwork Reduction Act

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

List of Subjects

32 CFR Part 536

Claims, Government employees, Military personnel.

32 CFR Part 537

Claims, Health care.

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

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

PART 536--THE ARMY CLAIMS SYSTEM

Subpart A--The Army Claims System

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

Responsibilities, Operations, Policies, and Guidance

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

Subpart B--Investigation and Processing of Claims Investigation

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

Claims Receipt and Disposition

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

Liability and Quantum Determinations

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

Settlement Procedures

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

Small Claims

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

Advance Payments

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

Subpart C--Claims Cognizable Under the Military Claims Act

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

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

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

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

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

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

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

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

General

536.105 Statutory authority.

Claims Arising in the United States

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

Claims Against the United States Arising Overseas

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

Subpart H--Maritime Claims

General

536.120 Statutory authority.
536.121 Related statutes.

Claims Against the United States

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

Claims in Favor of the United States

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

Investigations and Reports

536.134 Procedure.
536.135 Reports.
536.136 Form of claim.

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

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

Subpart J--Claims Cognizable Under the Foreign Claims Act

General

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

Foreign Claims Communications

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

Subpart K--Personnel Claims and Related Recovery Actions

General

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

Evaluation, Adjudication, and Settlement of Claims

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

Recovery From Third Party

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

Subpart L--Nonappropriated Fund (NAF) Claims

Claims Against NAF Activities

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

Claims Involving Persons Other Than NAF Employees

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

Subpart M--Affirmative Claims

General

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

Property Claims

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

Medical Care Claims

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

Recovering and Deposition on Claims

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

Subpart N--Claims Office Administration

Records and File Equipment

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

Monthly Claims Reporting System

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

Management of Claims Expenditure Allowance (CEA)

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

Appendix A to Part 536--References

Appendix B to Part 536--Glossary

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

Subpart A--The Army Claims System

General

Sec. 536.1 Purpose.

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

Sec. 536.2 References.

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

Sec. 536.3 Explanation of abbreviations and terms.

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

Sec. 536.4 Types of claims.

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

Sec. 536.5 Command and organizational relationships.

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

Sec. 536.6 Designation of claims attorneys.

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

Responsibilities, Operations, Policies, and Guidance

Sec. 536.7 Responsibilities.

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

Sec. 536.8 Operations of claims components.

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

Sec. 536.9 Claims policies.

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

Sec. 536.10 Guidance concerning disclosure of information and
assistance.

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

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

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

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

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

Subpart B--Investigation and Processing of Claims Investigation

Sec. 536.13 Importance of the claims investigation.

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

Sec. 536.14 Reasons for investigation.

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

Sec. 536.15 Immediate investigation requirement.

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

Sec. 536.16 Unit claims officers.

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

Sec. 536.17 Claims office responsibility.

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

Sec. 536.18 Transfer of Responsibility.

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

Sec. 536.19 Investigation procedures.

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

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

Sec. 536.21 Disposition of claims.

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

Sec. 536.22 Claims memorandum of opinion.

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

Sec. 536.23 Actions.

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

Liability and Quantum Determinations

Sec. 536.24 General considerations.

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

Sec. 536.25 Incident to service exclusionary rule.

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

Sec. 536.26 Property damage appraisers.

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

Sec. 536.27 Independent medical examinations.

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

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

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-29167. Public record. Not legal advice.