The Army Claims System; Proposed Rule DEPARTMENT OF DEFENSE

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 will be 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 Supplemental Information part of this

submission. JAG offices, individuals and/or organizations currently

using Army Regulation 27-20 or the current issue of 32 CFR part 536 and

537, dated 1 July 1993, should review this revision against the current

versions in order to determine the additions, deletions or other

changes being made. By reviewing the supplemental information portion,

reading of the complete part becomes necessary in order to understand

the entire part.

DATES: Comments must be received by the Army Claims Service not later

than April 18, 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 thereof,

against the United States for personal injury or death or property

damages caused outside the United States, its territories,

commonwealths, or possessions by military personnel or civilian

employees of the DA, or claims which arise incident to noncombat

activities of the Army. (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 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 section

536.213. (Subpart N). This subpart sets forth 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.

Executive Order 12291

This proposed 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 proposed 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 proposed 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 in 32 CFR Part 536

Claims, Foreign claims, Tort claims.

32 CFR part 536 is proposed to be revised to read as follows:

PART 536--THE ARMY CLAIMS SYSTEM

Subpart A--The Army Claims System

Sec.

General

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 claims 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 Payment 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

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.

516.146 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.

516.153 Claims not payable.

536.154 Compensation.

536.155 Computation of amount.

Foreign Claims Commissions

536.156 Appointment and functions.

536.157 Composition.

536.158 Qualification of members.

536.159 Delegation of authority.

536.160 Advance payments.

Subpart K--Personnel Claims and Related Recovery Actions

General

536.161 Authority.

536.162 Delegation of authority.

536.163 Scope.

536.164 Claimants.

536.165 Claims cognizable.

536.166 Claims not cognizable.

536.167 Time prescribed for filing.

516.168 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.

516.185 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.

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.

536.227 The MTF Third Party Recovery Program (TPCP).

Recovering and Depositing on Claims

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 Management

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 regulation are

explained in appendix B to this part.

Sec. 536.4 Types of claims.

(a) This regulation 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.), section 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 regulation 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

DODD 5515.9). Certain claims responsibilities of 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 paragraph 1-4.

(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

regulation, 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 regulation.

(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 chapter 11 claim, 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 regulation, 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 chapters of this

regulation 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 regulation.

(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 regulation 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 regulation.

(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 regulation 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 regulation. 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 regulation.

(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 of 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, whenever 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 chapters of this regulation

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 above in the following

countries has been assigned to military departments as indicated below:

(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 regulation 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 regulation; 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(c), 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 Form 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 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 or 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

claims 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. 536.19 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 Investigative 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 regulation

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

chapter 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, app 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 a 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 regulation 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 a

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 chapter 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) 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 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 chapter of this regulation.

(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 Sec. 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 as 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 on 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 is 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 a 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 claims 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 with 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 chapter 11, arising out of an accident involving a POV driven by

a member of the Army, or by ARNG personnel as defined in chapter 6,

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

Sec. 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, chap 5, sec 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 section 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 regulation

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 regulation 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 regulation. 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 cancelled 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 from 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.

410b 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.

410b 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 subrogee, or under workmen's compensation insurance

coverage if subrogated interests are allowable, the award based on

total damages will be apportioned in relation to their separate

interests (Sec. 536.20).

(e) After deduction of permissible collateral and noncollateral

sources, also deduct that portion of the loss or damage believed to

have been caused by the negligence of the claimant, third parties whose

negligence can be imputed to the claimant, or joint tortfeasors who are

liable for their share of the negligence (for example, where some form

of the Uniform Contribution Among Joint Tortfeasors Act has been

passed).

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

(a) The Government seeks to avoid multiple recovery (that is,

claimants seeking recovery from more than one potential source) and to

minimize the award it must make. The claims investigation should

therefore identify other parties potentially liable to the claimant

and/or their insurance carriers; indicate the status of any claims made

or include a statement that none has been made so that it can be

assured there is only one recovery and the Government does not pay a

disproportionate share. Where no claim has been made by the claimant

against others potentially liable, if applicable State law grants the

Government the right to indemnity or contribution, and it is felt the

Government may be entitled to either under the facts developed by the

claims investigation, the claims officer or attorney should formally

notify the other parties of their potential liability, the Government's

willingness to share information, and its expectation of shared

responsibility for any settlement. Furthermore, the claimant may be

receiving or entitled to receive benefits from collateral and non-

collateral sources (Sec. 536.28), which can be deducted from the total

loss or damage. Accordingly, a careful review must be made of

applicable State laws regarding joint and several liability, indemnity,

contribution, comparative negligence, and the collateral source

doctrine.

(b) If a demand by a claimant or an inquiry by a potential claimant

is directed solely to the Army, where it appears that the responsible

Army employee may have applicable insurance coverage, the employee

should be queried as to whether he or she has liability insurance.

(1) If so, determine if his or her insurer has made or will make

any payment to claimant. Under applicable State laws, the United States

may also be an insured entitled to coverage under the employee's

liability policy. (See 16 ALR3d 1411; United States v. State Farm

Mutual Ins. Co., 245 F. Supp. 58 (D. Ore. 1965.)) Therefore, where

there may be applicable insurance coverage, the policy language should

be reviewed, together with the rules and regulations of the State

insurance regulatory body, or determine whether--

(i) The United States comes within the definition of ``insured''.

(ii) The exclusion of the United States from policy coverage

conforms with state laws and policy.

(iii) Appropriate consideration has been given for a policy where

the United States has been excluded from coverage.

(2) If the employee refuses to cooperate in providing this

information, he or she should be advised to comply with the notice

requirements of the insurance policy and to request the insurance

carrier to contact the claims officer or attorney. The case should be

followed to ascertain whether the employee's insurer has made or will

make any payment to the claimant before deciding whether to settle the

claim against the Government. Normally, the award, if any, to the

claimant will be reduced by the amount of the payment of the employee's

insurance carrier.

(c) If the employee is the sole target of the claim and Army claims

authorities arrange to have the claim made against the Government, the

employee should be required to notify his or her insurance carrier

according to the policy and inform Army claims authorities of the name

of the insurance carrier and details of the coverage. Except when the

driver's statute is applicable, the insurance carrier is expected to

participate in the negotiation of the claims settlement and to pay its

fair share of any award to the claimant.

(d) Where the responsible Army employee is ``on loan'' to another

employer other than the United States (for example, an ROTC instructor

at a civilian institution or performing duties for a foreign

government), it should be determined whether there is applicable

statutory or insurance coverage concerning the acts of the responsible

employee and appropriate contribution or indemnification should be

sought. In the case of foreign governments, applicable treaties or

agreements are controlling.

(e) A great many claims cognizable under the FTCA are now settled

on a compromise basis. A major consideration in many such settlements

is the identification of other sources of recovery. This is true in a

variety of factual situations where there is a potential joint

tortfeasor; for example, multi-vehicle accidents with multiple drivers

and guest passengers, State or local government involvement,

contractors performing non-routine tasks for the Government, medical

treatment rendered to claimants by non-Government employees, or

incidents caused by a member or employee of the military department of

a State or Commonwealth with whom the DA does not have a cost-sharing

agreement. The law of the jurisdiction regarding joint and several

liability, indemnity, and contribution may permit shared financial

responsibility, but even in jurisdictions that do not permit

contribution, a compromise settlement can be reached with the other

tortfeasor's insurance company paying a portion of the total amount of

the claim against the Government. For these reasons, every effort

should be made to identify the insurance of all potential tortfeasers

involved and the status of any claims made, and to demand contribution

or indemnity where substantial reason exists to believe that liability

for the loss or damage should be shared.

(f) When a claim is filed against the Government under a chapter

that does not permit the payment of a subrogated interest (subparts E,

J, K), it is important to ensure that full information is obtained from

the claimant regarding insurance coverage since it is the legislative

intent of the statutes upon which these chapters are based that

insurance coverage be fully utilized before using appropriated funds to

pay the claims.

Settlement Procedures

Sec. 536.30 Settlement.

(a) General. Settlement means denial or payment of a claim in full

or in part. When an approval or settlement authority determines that a

claim is meritorious in an amount within his or her monetary

jurisdiction, the claim will be approved in that amount under the

statute determined to be proper regardless of the statutory basis

asserted by the claimant. Every effort will be made to settle claims at

the lowest level possible commensurate with the actual value of the

claim.

(b) Award of full amount claimed. If an approval or settlement

authority approves a claim in full, the claim will be certified for

payment to the appropriate disbursing officer. Enclosures listed in

Sec. 536.35 will be forwarded with the claim. The claimant will be

notified of the action taken on the claim. A settlement agreement is

required prior to payment.

(c) Award of less than full amount. When an approval or settlement

authority determines that a claim is meritorious in part, he or she

will--

(1) Notify the claimant in writing of his or her action.

(2) Request the execution of a settlement agreement (in triplicate)

in final and complete settlement of the claim in the reduced amount.

(3) If an approval authority, inform the claimant that if he or she

does not desire to accept the award, he or she should indicate in the

reply the reasons for rejection. If a settlement authority, and the

action is taken under subparts C or F, inform the claimant of the right

to appeal. (See Sec. 536.63 and Sec. 536.103.) DA Pam 27-162 provides

sample formats for letters notifying claimants of the actions taken on

their claims. (Figure 5-10 is to be used by field approving and

settlement authorities; figures 5-8 through 5-11 are to be used by

claims authorities in conjunction with Sec. 536.37 of this part.)

(d) Nonacceptance of reduced award. When a claimant rejects a

partial award, the approval authority may reconsider the matter and, if

justified, make further efforts to settle the claim. When further

efforts to settle appear unwarranted, the claim and related file will

be forwarded to the settlement authority having jurisdiction over the

largest claim or potential claim arising out of the incident with a

memorandum of opinion. The claimant should be advised of such referral.

(e) Civil works claims. Engineer civil works claims settled under

the provisions of the FTCA in an amount of $2,500 or less normally are

paid out of funds controlled by the COE rather than claims

appropriations. Unsettled claims in this category should, therefore, be

forwarded to the Commander, USARCS. An information copy will be sent to

the COE, ATTN: Chief Counsel, unless the latter waives that

requirement. Civil works claims received outside engineer channels

should be forwarded without further action to the district or division

engineer in whose area the incident occurred, or to the COE, ATTN:

Chief Counsel.

(f) Settlement of property damage claims. All claims submitted for

only property damage or for only personal injury should be evaluated

for other potential claims. Under tort claims statutes, only one

payment may be made to a claimant on all claims arising out of a single

incident. Therefore, a property damage claim arising from an incident

in which the claimant sustained injury should not be paid unless the

claimant executes a release for any potential injury claim. Likewise,

when a property damage claim is settled the claimant should be informed

that subsequent claims for hidden damage or loss of use are precluded

by the settlement.

Sec. 536.31 Claims forwarded without settlement.

(a) Claims beyond monetary jurisdiction. If the chief of a command

claims service or the head of a claims office considers a claim

meritorious in an amount exceeding their jurisdiction, they will

forward the claim with a memorandum of opinion to the settlement

authority having jurisdiction over the largest claim or potential claim

arising out of the incident. The claimant should be informed of this

referral. In most cases the claimant should not be informed of the

amount of award recommended. However, for claims arising under the

Foreign Claims Act notice of the amount recommended may be required in

accordance with Sec. 536.156.

(b) Claims recommended for disapproval. If a claim is forwarded to

higher authority with a recommendation for denial, the claimant will be

advised of this referral but not of the recommendation.

(c) Companion claim. When two or more claims arising from the same

incident are by reason of differences in amounts within the monetary

jurisdiction of different approval or settlement authorities, all such

claims will be forwarded to the authority having jurisdiction over the

claim presented in the greatest amount. This authority may either

settle the claims or return the claim to the appropriate field claims

office for settlement in accordance with his or her guidance.

(1) The same procedure will be followed when a potential claim

exists in an amount estimated to be beyond the jurisdiction of the

approval or settlement authority actually considering the matter. For

example, the foregoing applies when a small subrogated property damage

claim is received arising from an incident in which severe personal

injury or death has occurred but to which no claim has yet been filed.

In a case of clear liability, authorization to settle the claim within

the monetary jurisdiction of the requesting officer may be obtained

telephonically or by other expeditious means.

(2) Similarly, where there is a claim for property damage and no

evidence (for example, police report, report of survey, collateral

accident investigation, and witness interviews) of personal injury, the

property damage claim may be settled by the authority having

jurisdiction. However, where there is evidence of personal injury, the

foregoing caveat regarding settlement and payment of lesser claims will

apply. In such instances the claimant will be informed that settlement

of a property damage claim will preclude settlement of a subsequently

filed personal injury claim and vice versa. (See Sec. 536.176 on

personnel claims and Sec. 537.32 on companion claims in litigation.)

(d) Property claim of a claims authority or superior. A claim

arising from loss or damage to the property of an approval or

settlement authority or his or her superior officer in the chain of

command will be forwarded without recommendation to the next higher

settlement authority (in the case of a division, this would be a corps

level settlement authority; in an overseas area, this includes a

command claims service) or to USARCS.

Sec. 536.32 Settlement agreement.

(a) General. (1) Except under subpart K, if a claim is determined

to be meritorious in an amount less than claimed, or if a claim

involving personal injuries or death is approved in full, a settlement

agreement will be obtained prior to payment. A settlement agreement may

be required in other instances when, in the opinion of the adjudicating

authority, good legal practice so dictates; for example, where family

or other multiple interests may be involved.

(2) A DA Form 1666 may be used for settlement of claims under the

FTCA for less than $2,500 and for all other claims payable from Army

funds. Claims payable in excess of $2500 under the FTCA will be settled

using Standard Form 1145, Voucher for Payment Under the Federal Tort

Claims Act. In some cases a special settlement agreement may be

necessary to reflect the full understanding of the parties. However,

all such special agreements should incorporate the language of the

acceptance block on the Standard Form 1145.

(3) Acceptance by a claimant of an award under subparts C and K

constitutes a full and final settlement and release of any and all

claims against the United States and against the military or civilian

personnel whose act or omission gave rise to the claim. The claimant

should be so advised prior to the initiation of negotiations. Where

this is done orally and the claimant is unrepresented, a memorandum of

the conversation should be placed in the file and a copy furnished to

the claimant. Also, settlement negotiations with unrepresented

claimants should also be preserved in the form of memoranda retained in

the file with a copy furnished to the claimant. While a settlement

agreement is not required in claims adjudicated under subpart K, the

settlement authority approving payment may require one at his or her

discretion.

(b) Claims involving minors. (1) Generally, only a court-appointed

guardian of the estate of a minor, or a person performing a similar

function under the supervision of a court, can execute a binding

settlement agreement relative to a minor's claim. Therefore, a guardian

of the estate of the minor or similar functionary must be appointed by

a court of competent jurisdiction and must execute a settlement

agreement before a claim is approved and paid. (See Sec. 536.35.)

However, this requirement can be eliminated and the settlement

agreement can be signed by a parent, next-of-kin, or a friend if the

contemplated payment is small and the cost of obtaining a court-

appointed guardian would materially deplete the award.

(2) In foreign countries where the amount agreed to does not exceed

$2,500.00, the requirement for obtaining a guardian may be eliminated.

However, in areas where the FTCA (subpart D) applies, local law should

be consulted as a basis for determining whether a court appointed

guardian should be required. The requirement to appoint a guardian

should not be imposed until a particular claim is determined to be

meritorious in an amount that would require the appointment of a

guardian. The claimant should be advised of this requirement well in

advance of settlement negotiations so that the cost of establishing

guardianship can be considered by the claimant as a factor in

evaluating the claim. This requirement also can be eliminated if local

law authorizes or requires a claim such as for the death of a parent of

the minor, to be presented on behalf of the estate of the decedent by

an administrator, administratrix, or the like. In such cases, a

settlement agreement signed by the administrator, administratrix, or

the like will suffice if, under local law, such action is binding on

the minor.

(3) The above provisions are in addition to, not in lieu of, the

requirements of Sec. 536.20(a)(5).

(c) Claims involving incompetents. The above stated principles may

also be applied in appropriate cases involving incompetents. Authority

to waive the foregoing requirements in appropriate cases is delegated

to the Commander, USARCS. If it is felt that the foregoing requirements

are materially impeding settlement of the claim, the matter should be

brought to the attention of the Commander, USARCS for appropriate

resolution.

(d) Claims involving workmen's compensation carriers. The

settlement of a claim involving a claimant who has elected to receive

workmen's compensation benefits under local law may require the consent

of the workmen's compensation carrier and in certain jurisdictions the

State agency with authority over workmen's compensation awards.

Accordingly, claims approval and settlement authorities should be aware

of local requirements.

Sec. 536.33 Vouchers.

Vouchers are prepared in an original and three copies. The original

and two copies (one marked as comeback copy) will be transmitted to the

disbursing office and one copy retained as a suspense copy. Upon

payment of the claim, the disbursing office will return the comeback

copy, which will be included in the file when it is transmitted to the

Commander, USARCS for post settlement review.

Sec. 536.34 Accounting codes.

(a) Certifying an approved claim for payment creates an obligation

against the claims appropriation for the fiscal year then in progress.

Accordingly, the voucher will bear the appropriate accounting code for

both the appropriation charged and the current fiscal year,

irrespective of the date the claim accrued or was filed. Confusion

sometimes arises at the end of a fiscal year; for example, an approved

claim is certified for payment on 28 September (the last business day

of a fiscal year), but it is obvious that it will not be actually paid

(i.e., a check issued by the disbursing activity) until on or after 1

October (the first day of the following fiscal year). At the time the

check is issued, the accounting code will not be advanced to the next

fiscal year. Claims checks are issued using the accounting code of the

fiscal year in which the claim was certified for payment (i.e., the

fiscal year in which the voucher was signed).

(b) The accounting code for each type of claim remains constant,

except for the third digit of the code which is the second digit of the

fiscal year (e.g., ``0'' for ``FY 90''). The accounting codes for

claims appropriations are published each fiscal year in the AR 37-100

series. Accounting codes used in the payment of claims and refunds, and

their references, are listed below; the ``X'' denotes the space where

the second digit of the fiscal year appears.

Table B-1.--Frequently Used Claims Accounting Codes

Accounting code: 21X2020 22-0205 P202097.23-4230 FAJA S99999, 21X2020 22-

0305 P202097.23-4230 FAJA S99999.

Reference: Subpart C (Military Claims Act).

Accounting code: 21X2020 22-0203 P202097.21-4230 FAJA S99999, 21X2020 22-

0303 P202097.21-4230 FAJA S99999.

Reference: Subpart C (Military Claims Act).

Use symbol only if claim approved for $2,500 or less--if approved for

more than $2,500, allotment symbol will be filled in by GAO.

Accounting code: 21X2020 22-0208 P202097.26-4230 FAJA S99999, 21X2020 22-

0308 P202097.26-4230 FAJA S99999.

Reference: Subpart E (Nonscope Claims).

Accounting code: 21X2020 22-0206 P202097.24-4230 FAJA S99999, 21X2020 22-

0306 P202097.24-4230 FAJA S99999.

Reference: Subpart F (National Guard Claims Act).

Accounting code: 21X2020 22-0207 P202097.25-4230 FAJA S99999, 21X2020 22-

0307 P202097.25-4230 FAJA S99999.

Reference: Subpart H (Maritime Claims).

Accounting code: 21X2020 22-0204 P202097.26-4230 FAJA S99999, 21X2020 22-

0304 P202097.26-4230 FAJA S99999.

Reference: Subpart J (Foreign Claims Act).

Accounting code: 21X2020 22-0201 P202097.11-4230 FAJA S99999, 21X2020 22-

0301 P202097.11-4230 FAJA S99999.

Reference: Subpart K (Personnel Claims Act).

Sec. 536.35 Payment.

(a) General. Except as provided in Sec. 536.35(a)(1), when a claim

has been determined to be payable, the approval or settlement authority

will transmit the following to the appropriate disbursing office:

(1) The voucher (SF 1034 or SF 1145 as appropriate) in triplicate,

with a request that one copy be returned with voucher number and date

of payment noted thereon.

(2) Two copies of--

(i) The claim. (Under subpart K this means DD Form 1842 (Claim for

Loss of or Damage to Personal Property Incident to Service).)

(ii) The settlement agreement, as required.

(iii) Actions and other documents as required; for example, DA Form

1668 signed by the approving or settlement authority (as the substitute

for action in small claims under subparts C, D, E, F, H or J) attorney

general approval and court approval on claims for minors and

incompetents.

(iv) Original power of attorney, where appropriate.

(b) Electronic payment procedures. At installations where

electronic payment procedures have been implemented, the approving or

settlement authority will electronically transmit payment information

to the servicing finance and accounting office. The claim, the

settlement agreement, any actions or other required documents, and the

original power of attorney will not be transmitted to the finance and

accounting office, but will be retained in the claims file. Instead, a

``payment report'' produced by the claims automation program provided

such offices by USARCS, which evidences or supports the fact that a

claims official has approved a claim payment, will be transmitted to

the disbursing activity in accordance with locally established

procedures. The method of transmission used should not result in

avoidable or significant delay in the issuance of checks for claims

payments. The payment report includes--

(1) The name of the payee.

(2) The payee's social security number (if available).

(3) The payee's address.

(4) The date the claim was filed.

(5) The claim number.

(6) The amount claimed.

(7) The amount of the approved payment.

(8) The date the payment was recorded in claims records.

(9) The claims office identification.

(10) The claims office's office code.

(c) Payments in excess of $2,500 under the FTCA (Sec. 536.78).

Claims paid in excess of $2,500 under the FTCA will be submitted to the

GAO with the same documentation as indicated in (a) above but with the

following exceptions:

(1) Standard Form 1145 will be signed by the settlement authority

on the lower left side only. The space on the right side for the

authorized certifying officer will not be signed.

(i) Where a minor is payee, the full legal name of the individual

should be listed on the voucher; for example, ``John Doe, Sr., as

guardian of John Doe, Jr.'' Descriptive words such as ``Mrs. John Doe

and her three minor children'' should not be used.

(ii) The accounting classification will not be placed on the

voucher. This is accomplished by the GAO as the payment is made from

Treasury funds.

(2) The letter of transmittal to the GAO will include a statement

that the individual whose signature appears on the voucher as

certifying authority is the person having authority to act under the

provisions of the FTCA and Sec. 536.80.

(3) The Attorney General will approve payments in excess of $25,000

in lieu of action of the approval or settlement authority.

(d) Advance payment. When it has been determined that an advance

payment will be made, the approval or settlement authority will

transmit to the appropriate disbursing officer--

(1) SF 1034 (in triplicate) with a request that one copy be

returned with voucher number and date of payment.

(2) The original copy and one copy of the action by the approval or

settlement authority authorizing advance payment and the Advance

Payment Acceptance Agreement. (See Sec. 536.47)

(e) Payment involving minors. Payment will be made to the

individual who executed the settlement agreement on behalf of the

minor.

(f) Lost, stolen, forged, destroyed, or undeliverable Government

checks. Army disbursing officers have the authority to issue substitute

checks for checks that have been issued by the Army and that are

subsequently lost, destroyed, or rendered undeliverable. (See AR 37103,

chap. 4, secs. VII through X.) Some Federal agencies do not yet have

this authority. Inquiries from payee or endorsees of Army-issued checks

should be referred to an Army comptroller; inquiries regarding other

agencies should be referred to the specific agency involved. For claims

paid by the GAO, if the Treasury check is lost or stolen, the payee or

endorsee should be referred to the Check Forgery Insurance Fund,

Department of the Treasury (31 U.S.C 3343, 31 CFR 235.1 through 235.6).

The Fund can reimburse such losses provided the specific requirements

of the Statute are met. The Fund is administered by the Commissioner,

Financial Management Service, Department of the Treasury, 3700 East-

West Highway, Hyattsville, MD 20782.

Sec. 536.36 Effect of payment.

Acceptance of an award by the claimant, except for advance payment,

constitutes for the United States, military personnel, or civilian

employee whose act or omission gave rise to the claim, a release from

all liability to the claimant, based on the act or omission. However,

on tort claims only one payment may be made for all damages a claimant

sustains from an incident. Therefore, a signed unconditional settlement

agreement is needed to ensure that the claimant understands the

finality of accepting payment.

Sec. 536.37 Notification as to denial of claims.

(a) General. The nature and extent of the written notification to

the claimant as to the denial of his or her claim should be based on

whether the claimant has a judicial remedy following denial or an

administrative recourse to appeal.

(b) Final actions under subpart D. If the settlement authority has

information that could be a persuasive factor for the claimant as to

whether to resort to litigation, such information may be orally

transmitted to the claimant and, in appropriate cases, released under

normal procedures in accordance with AR 340-17 or AR 340-21. However,

the written notification of the denial should be general in nature; for

example, denial on the weaker ground of contributory negligence should

be avoided and the inclination should be to deny on the basis that the

claimant was solely responsible for the incident. The claimant will be

informed in writing of his or her right to bring an action in the

appropriate U.S. District Court not later than 6 months after the date

of mailing of the notification. See DA Pam 27-162, figures 5-8 and 5-9.

(c) Final actions under subparts C, F and J. Final agency actions

under subparts C, F or J are subject to appeal and the claimant will be

so informed. Also, the notice of final action will be sufficiently

detailed to provide the claimant with an opportunity to know and

attempt to overcome the basis for denial. The claimant should not be

afforded a valid basis for claiming surprise when an issue adverse to

him or her is asserted as a basis for denying the appeal (see DA Pam

27-162, figs 5-8 and 5-9).

(d) Denials on jurisdictional grounds. Regardless of the nature of

the claim or the statute under which it may be considered, claims

denied on jurisdictional grounds that are valid, certain, and not

easily overcome (and for this reason no detailed investigation as to

the merits of the claim is conducted) should contain in the denial

letter a statement that the denial on such grounds is not to be

construed as an expression of opinion on the merits of the claim or an

admission of liability. If sufficient factual information is available

to make a tentative ruling on the merits of the claim, liability may be

expressly denied.

(e) Claims that may be considered under more than one chapter. In

doubtful cases as to whether subparts C, D and F are the appropriate

chapters to consider the claim, the claimant will be advised of the

alternatives; for example, the right to sue or the right to appeal.

Similarly, a claimant may be advised of his or her alternative remedies

when the claimant is a military member and the issue of ``incident to

service'' is not clear.

(f) Denial after litigation. On those claims cognizable under the

FTCA in which the claimant files suit after six months without agency

action, a formal denial will be sent to the claimant unless the

Assistant United States Attorney responsible for the litigation of the

suit expressly directs otherwise. The denial will be on the basis that

the claim is no longer amenable to administrative settlement. Other

reasons for denial may also be given.

Small Claims

Sec. 536.38 General.

This section provides an expeditious procedure for the

investigation and payment of claims (regardless of the amount claimed)

that may be without extensive investigation. If it appears that a claim

should be denied or cannot be settled within the limits specified in

this section, it will be fully investigated under normal procedures.

The use of small claims procedures is not mandatory; however, these

procedures should be used whenever considered appropriate in the

judgment of the claims approval or settlement authority, as

considerable processing time and expense is usually saved thereby. If a

fully investigated claim is received by an approval or settlement

authority, which in his or her opinion could properly have been

processed under small claims procedures, the claim will be settled in

accordance with normal procedures. Appropriate corrective action will

be taken to ensure the use of small claims procedures in similar future

cases.

Sec. 536.39 Investigation.

The investigation will be made so as to develop most expeditiously

the facts necessary to determine whether the claim is meritorious and

in what amount. The evidence required may be obtained by telephone,

from incident reports, and other forms of hearsay evidence. Written

statements of witnesses, written estimates of repairs, and the like are

not required. The approving authority must be convinced and state on DA

Form 1668 that--

(a) The United States is liable for the damage or injury incurred.

(b) The claimant is a proper claimant.

(c) The amount approved, as claimed or agreed upon, is reasonably

substantiated.

Sec. 536.40 Report of investigation.

When it appears that a small claim may arise, the report of

investigation will be prepared on DA Form 1668. The investigator will

append a brief summary of the evidence developed. The summary may be

used as a basis for completion of the investigation after a claim has

been filed. This report is exempted from control in accordance with AR

335-15, paragraph 7-2t.

Sec. 536.41 Processing.

(a) If the amount claimed under chapter 11 is not more than $1,000,

or in the case of a tort claim is not more than $2500, and is

considered meritorious in full, the claims JA/attorney will complete DD

Form 1842 or DA Form 1668 and pay the claim.

(b) A claim under subpart K is meritorious in an amount of $1,000

or less, or if a tort claim is meritorious in the amount of $2500 or

less, the claim JA/attorney may settle the claim.

(c) After coordination with the responsible approving or settlement

authority, unit claims officers may be authorized to attempt to procure

a settlement agreement. If a settlement agreement is obtained, the

claims officer will complete the small claims certificate for amount of

recommended payment and transmit it, in triplicate, with the claim and

settlement agreement, to the approval or settlement authority.

(d) If a claimant refuses to accept a sum offered under this

section or if it appears that a claim should be disapproved, the small

claims procedures will not be employed; the claim will be fully

investigated and processed.

(e) Nonappropriated fund claims will be forwarded by the approval

or settlement authority for payment as prescribed in subpart L.

(f) Claims under chapter 11. DA Form 1668 will not be employed in

the settlement of small claims under chapter 11. Such a claim will be

submitted on DD Form 1842. Procedures in subpart K will be used.

Sec. 536.42 Settlement agreement.

When a claimant is available and agrees to accept a sum less than

originally claimed, he or she will be requested to sign, in ink, a

statement to that effect on any open space on each copy of the claim

form (SF 95 (Claim for Damage, Injury, or Death)). If not readily

available, the claimant will be requested to sign and return in

triplicate a DA Form 1666 or Standard Form 1145, which will be attached

to the claim form.

Sec. 536.43 Payment.

(a) If a small claim is payable under any chapter except subparts G

and I, the approval or settlement authority will allow the procedures

of either Sec. 536.35(a) and Sec. 536.35(a)(1).

(b) [Reserved]

(c) Except for claims cognizable under subpart K and personnel

claims cognizable under subpart L an approval authority who has been

appointed an agent officer under AR 37-103, chapter 15, may pay the

claim, and will require the claimant to sign, in triplicate, a receipt

in the following language:

----------------------------------------------------------------------

(Date)

I hereby acknowledge receipt of ________________ in full

satisfaction and final settlement of the within claim.

----------------------------------------------------------------------

(Signature)

----------------------------------------------------------------------

(Name printed)

(d) This above receipt may be printed, stamped, typed, or written

in ink in any available space on the front or back of the signed claim

form. If not on the claim form, the receipt will be modified to

identify and will be firmly affixed to the appropriate claim.

Advance Payments

Sec. 536.44 Authority.

This section implements the act of 8 September 1961 (75 Stat. 488,

10 U.S.C 2736) as amended by Public Law 90-521 (82 Stat. 874), Public

Law 98-564, and Public Law 100-456. No new liability is created by 10

U.S.C 2736, which merely permits partial advance payments on

meritorious claims as specified above. (See Sec. 536.178 for emergency

partial payments in personnel claims, which are not governed by 10

U.S.C 2736.)

Sec. 536.45 Conditions for advance payment.

(a) An advance payment not in excess of $100,000 is authorized in

the limited category of claims resulting in immediate hardship arising

from incidents that are payable under subparts C, F or J. An advance

payment is authorized only under the following circumstances:

(1) The claim must be determined to be cognizable and meritorious

under the provisions of subparts C, F or J.

(2) There exists an immediate need of the person who suffered an

injury, damage, or loss, or of the family of a person who was killed

for food, clothing, shelter, medical, burial expenses, other

necessities, or other resources for such expenses that are not

reasonably available.

(3) The payee, so far as can be determined, would be a proper

claimant, as is the spouse or next of kin of a claimant who is

incapacitated.

(4) The total damage sustained must exceed the amount of the

advance payment.

(5) A properly executed advance payment acceptance agreement has

been obtained.

Sec. 536.46 Authorization.

The authorities listed below are authorized to make advance

payments as follows:

(a) Under subparts C and F of this part, TJAG and TAJAG may make

advance payments in amounts not exceeding $100,000; the Commander,

USARCS, in amounts not exceeding $25,000; and the authorities

designated in Sec. 536.61(a) (4) and (5) and Sec. 536.103(c)(3), in

amounts not exceeding $10,000, subject to advance coordination with

USARCS if the estimated total value of the claim exceeds their monetary

authority. Requests for advance payments in excess of $10,000 will be

forwarded to USARCS for processing.

(b) Under subpart J of this part, three-member claims commissions

may make advance payments under the Foreign Claims Act in amounts not

exceeding $10,000, subject to advance coordination with USARCS if the

estimated total value of the claim exceeds their monetary authority.

Sec. 536.47 Advance payment acceptance agreement.

Prior to making any advance payment, the authority approving such

payment will obtain an executed acceptance agreement from the

claimants.

Subpart C--Claims Cognizable Under the Military Claims Act

Sec. 536.48 Statutory authority.

The statutory authority for this chapter is contained in the act of

10 August 1956 (70A Stat. 153, 10 U.S.C. 2733), commonly referred to as

the ``Military Claims Act,'' as amended by Public Law 90-522, 26

September 1968 (82 Stat. 875), Public Law 90-525, 26 September 1968 (82

Stat. 877), Public Law 93-336, 8 July 1974; the act of 8 September 1961

(75 Stat. 488, 10 U.S.C. 2736), as amended by Public Law 90-521, 26

September 1968 (82 Stat. 874); and the act of 30 October 1984, Public

Law 98-564.

Sec. 536.49 Scope.

This subpart is applicable in all locations and prescribes the

substantive bases and special procedural requirements for the

settlement of claims against the United States for death; personal

injury; or damage, loss, or destruction of property--

(a) Caused by military personnel or civilian employees of the DA

acting w

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