Claims Against the United States

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Part II

Department of Defense

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Department of the Army

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32 CFR Part 536

Claims Against the United States; Proposed Rule

Proposed Rules

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DEPARTMENT OF DEFENSE

Department of the Army

32 CFR Part 536

RIN 0702-AA54

[Docket No. USA-2006-0022]

Claims Against the United States

AGENCY: Department of the Army, DOD.

ACTION: Proposed rule; request for comments.

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SUMMARY: The Department of the Army proposes to amend its regulations

to reflect a substantial revision of AR 27-20, an Army publication

which governs the processing of claims worldwide. The purpose of this

revision is to make AR 27-20 clearer and easier to use, after years of

piecemeal amendments. This rewrite also ensures that AR 27-20 is in

keeping with current statutes, legal opinions and Department of Justice

guidance pertaining to claims processing. This updated rule will

expedite payment of meritorious claims throughout the world.

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

considered.

ADDRESSES: You may submit comments, identified by ``32 CFR part 536,

Docket No. USA-2006-0022 and or RIN 0702-AA54'' in the subject line, by

any of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions for submitting comments.

Mail: Federal Docket Management System Office, 1160

Defense Pentagon, Washington, DC 20301-1160.

Instructions: All submissions received must include the agency name

and docket number or Regulatory Information Number (RIN) for this

Federal Register document

any of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions for submitting comments.

Mail: Federal Docket Management System Office, 1160

Defense Pentagon, Washington, DC 20301-1160.

Instructions: All submissions received must include the agency name

and docket number or Regulatory Information Number (RIN) for this

Federal Register document. The general policy for comments and other

submissions from members of the public is to make these submissions

available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any

personal identifiers or contact information.

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

x220.

SUPPLEMENTARY INFORMATION:

A. Background

This rule was previously published. The Administrative Procedure

Act, as amended by the Freedom of Information Act requires that certain

policies and procedures and other information concerning the Department

of the Army be published in the Federal Register. The policies and

procedures covered by this regulation fall into that category.

AR 27-20 and its companion DA Pam 27-162 will be available on the

Web site of the U.S. Army Publications Directorate, http://www.apd.army.mil, within a few months of the date of this Federal

consult the online versions, whose structure and paragraph numbering

are comparable.

B. Regulatory Flexibility Act

The Department of the Army has determined that the Regulatory

Flexibility Act does not apply because the proposed rule does not have

a significant economic impact on a substantial number of small entities

within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612.

C. Unfunded Mandates Reform Act

ose structure and paragraph numbering

are comparable.

B. Regulatory Flexibility Act

The Department of the Army has determined that the Regulatory

Flexibility Act does not apply because the proposed rule does not have

a significant economic impact on a substantial number of small entities

within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612.

C. Unfunded Mandates Reform Act

The Department of the Army has determined that the Unfunded

Mandates Reform Act does not apply because the proposed rule does not

include a mandate that may result in estimated costs to State, local or

tribal governments in the aggregate, or the private sector, of $100

million or more.

D. National Environmental Policy Act

The Department of the Army has determined that the National

Environmental Policy Act does not apply because the proposed rule does

not have an adverse impact on the environment.

E. Paperwork Reduction Act

The Department of the Army has determined that the Paperwork

Reduction Act does not apply because the proposed rule does not involve

collection of information from the public.

F. Executive Order 12630 (Government Actions and Interference With

Constitutionally Protected Property Rights)

The Department of the Army has determined that Executive Order

12630 does not apply because the proposed rule does not impair private

property rights.

G. Executive Order 12866 (Regulatory Planning and Review)

The Department of the Army has determined that according to the

criteria defined in Executive Order 12866 this proposed rule is not a

significant regulatory action. As such, the proposed rule is not

subject to Office of Management and Budget review under section 6(a)(3)

of the Executive Order.

H. Executive Order 13045 (Protection of Children From Environmental

Health Risk and Safety Risks)

The Department of the Army has determined that according to the

criteria defined in Executive Order 13045 this proposed rule does not

apply.

I. Executive Order 13132 (Federalism)

oposed rule is not

subject to Office of Management and Budget review under section 6(a)(3)

of the Executive Order.

H. Executive Order 13045 (Protection of Children From Environmental

Health Risk and Safety Risks)

The Department of the Army has determined that according to the

criteria defined in Executive Order 13045 this proposed rule does not

apply.

I. Executive Order 13132 (Federalism)

The Department of the Army has determined that according to the

criteria defined in Executive Order 13132 this proposed rule does not

apply because it will not have a substantial effect on the States, on

the relationship between the national government and the States, or on

the distribution of power and responsibilities among the various levels

of government.

Col. Dale Woodling,

Commander, United States Army Claims Service.

List of Subjects in 32 CFR Part 536

Claims, Government employees, Military personnel.

For reasons stated in the preamble the Department of the Army

proposes to revise 32 CFR part 536 to read as follows:

PART 536--CLAIMS AGAINST THE UNITED STATES

Subpart A--The Army Claims System

Sec.

536.1 Purpose of the Army Claims System.

536.2 Claims authorities.

536.3 Command and organizational relationships.

536.4 Designation of claims attorneys.

536.5 The Judge Advocate General.

536.6 The Army claims mission.

536.7 Responsibilities of the Commander USARCS.

536.8 Responsibilities and operations of command claims services.

536.9 Responsibilities and operations of area claims offices.

536.10 Responsibilities and operations of claims processing offices.

536.11 Chief of Engineers.

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

536.13 Chief, National Guard Bureau.

536.14 Commanders of major Army commands.

536.15 Claims policies.

536.16 Release of information policies.

536.17 Single-service claims responsibility (DODD 5515.8 and DODD

5515.9).

536.18 Cross-servicing of claims.

536.19 Disaster claims planning.

536.20 Claims assistance visits.

536.21 Annual claims award.

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

536.13 Chief, National Guard Bureau.

536.14 Commanders of major Army commands.

536.15 Claims policies.

536.16 Release of information policies.

536.17 Single-service claims responsibility (DODD 5515.8 and DODD

5515.9).

536.18 Cross-servicing of claims.

536.19 Disaster claims planning.

536.20 Claims assistance visits.

536.21 Annual claims award.

Subpart B--Investigation and Processing of Claims

536.22 Claims investigative responsibility--general.

536.23 Identifying claims incidents both for and against the

government.

536.24 Delegation of investigative responsibility.

536.25 Procedures for accepting claims.

536.26 Identification of a proper claim.

536.27 Identification of a proper claimant.

536.28 Claims acknowledgment.

536.29 Revision of filed claims.

536.30 Action upon receipt of claim.

536.31 Opening claim files.

536.32 Transfer of claims among armed services branches.

536.33 Use of small claims procedures.

536.34 Determination of correct statute.

536.35 Unique issues related to environmental claims.

536.36 Related remedies.

536.37 Importance of the claims investigation.

536.38 Elements of the investigation.

536.39 Use of experts, consultants and appraisers.

536.40 Conducting the investigation.

536.41 Determination of liability--generally.

536.42 Constitutional torts.

536.43 Incident to service.

536.44 FECA and LSHWCA claims exclusions.

536.45 Statutory exceptions.

536.46 Other exclusions.

536.47 Statute of limitations.

536.48 Federal employee requirement.

536.49 Scope of employment requirement.

536.50 Determination of damages--applicable law.

536.51 Collateral source rule.

536.52 Subrogation.

536.53 Evaluation of claims--general rules and guidelines.

536.54 Joint tortfeasors.

536.55 Structured settlements.

536.56 Negotiations--purpose and extent.

536.57 Who should negotiate.

536.58 Settlement negotiations with unrepresented claimants.

536.59 Settlement or approval authority.

536.60 Splitting property damage and personal injury claims

536.51 Collateral source rule.

536.52 Subrogation.

536.53 Evaluation of claims--general rules and guidelines.

536.54 Joint tortfeasors.

536.55 Structured settlements.

536.56 Negotiations--purpose and extent.

536.57 Who should negotiate.

536.58 Settlement negotiations with unrepresented claimants.

536.59 Settlement or approval authority.

536.60 Splitting property damage and personal injury claims.

536.61 Advance payments.

536.62 Action memorandums.

536.63 Settlement agreements.

536.64 Final offers.

536.65 Denial notice 536.66 The ``Parker'' denial.

536.67 Mailing procedures.

536.68 Appeal or reconsideration.

536.69 Retention of file.

536.70 Preparation and forwarding of payment vouchers.

536.71 Fund sources.

536.72 Finality of settlement.

Subpart C--Claims Cognizable Under the Military Claims Act

536.73 Statutory authority for the Military Claims Act.

536.74 Scope for claims under the Military Claims Act.

536.75 Claims payable under the Military Claims Act.

536.76 Claims not payable under the Military Claims Act.

536.77 Applicable law for claims under the Military Claims Act.

536.78 Settlement authority for claims under the Military Claims

Act.

536.79 Action on appeal under the Military Claims Act.

536.80 Payment of costs, settlements, and judgments related to

certain medical malpractice claims.

536.81 Payment of costs, settlements, and judgments related to

certain legal malpractice claims.

536.82 Reopening an MCA claim after final action by a settlement

authority.

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

536.83 Statutory authority for the Federal Tort Claims Act.

536.84 Scope for claims under the Federal Tort Claims Act .

536.85 Claims payable under the Federal Tort Claims Act.

536.86 Claims not payable under the Federal Tort Claims Act.

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

536.88 Settlement authority for claims under the Federal Tort Claims

Act.

536.89 Reconsideration of Federal Tort Claims Act claims

deral Tort Claims Act.

536.84 Scope for claims under the Federal Tort Claims Act .

536.85 Claims payable under the Federal Tort Claims Act.

536.86 Claims not payable under the Federal Tort Claims Act.

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

536.88 Settlement authority for claims under the Federal Tort Claims

Act.

536.89 Reconsideration of Federal Tort Claims Act claims.

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

536.90 Statutory authority for the Non-Scope Claims Act.

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

536.92 Claims payable under the Non-Scope Claims Act.

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

536.94 Settlement authority for claims under the Non-Scope Claims

Act.

536.95 Reconsideration of Non-Scope Claims Act claims.

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

536.96 Statutory authority for the National Guard Claims Act.

536.97 Scope for claims under the National Guard Claims Act.

536.98 Claims payable under the National Guard Claims Act.

536.99 Claims not payable under the National Guard Claims Act.

536.100 Applicable law for claims under the National Guard Claims

Act.

536.101 Settlement authority for claims under the National Guard

Claims Act.

536.102 Actions on appeal under the National Guard Claims Act.

Subpart G--Claims Cognizable Under International Agreements

536.103 Statutory authority for claims cognizable under

international claims agreements.

536.104 Current agreements in force.

536.105 Responsibilities generally/international agreements claims.

536.106 Definitions for international agreements claims.

536.107 Scope for international agreements claims arising in the

United States.

536.108 Claims payable under international agreements (for those

arising in the United States).

536.109 Claims not payable under international agreements (for those

arising in the United States).

536.110 Notification of incidents arising under international

agreements (for claims arising in the United States)

aims.

536.107 Scope for international agreements claims arising in the

United States.

536.108 Claims payable under international agreements (for those

arising in the United States).

536.109 Claims not payable under international agreements (for those

arising in the United States).

536.110 Notification of incidents arising under international

agreements (for claims arising in the United States).

536.111 Investigation of claims arising under international

agreements (for those claims arising in the United States).

536.112 Settlement authority for claims arising under international

agreements (for those claims arising in the United States).

536.113 Assistance to foreign forces for claims arising under

international agreements (as to claims arising in the United

States).

536.114 Scope for claims arising overseas under international

agreements.

536.115 Claims procedures for claims arising overseas under

international agreements.

536.116 Responsibilities as to claims arising overseas under

international agreements.

Subpart H--Maritime Claims

536.117 Statutory authority for maritime claims.

536.118 Related statutes for maritime claims.

536.119 Scope for maritime claims.

536.120 Claims payable as maritime claims.

536.121 Claims not payable as maritime claims.

536.122 Limitation of settlement of maritime claims.

536.123 Limitation of liability for maritime claims.

536.124 Settlement authority for maritime claims.

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

Military Justice

536.125 Statutory authority for Uniform Code of Military Justice

(UCMJ) claims.

536.126 Purpose of UCMJ claims.

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

536.128 Effect of disciplinary action, voluntary restitution, or

contributory negligence for claims under the UCMJ.

536.129 Claims cognizable as UCMJ claims.

536.130 Claims not cognizable as UCMJ claims.

536.131 Limitations on assessments arising from UCMJ claims.

536.132 Procedure for processing UCMJ claims.

536.133 Reconsideration of UCMJ claims

oper claimants; unknown accused--under the UCMJ.

536.128 Effect of disciplinary action, voluntary restitution, or

contributory negligence for claims under the UCMJ.

536.129 Claims cognizable as UCMJ claims.

536.130 Claims not cognizable as UCMJ claims.

536.131 Limitations on assessments arising from UCMJ claims.

536.132 Procedure for processing UCMJ claims.

536.133 Reconsideration of UCMJ claims .

536.134 Additional claims judge advocate and claims attorney

responsibilities (for UCMJ claims).

Subpart J--Claims Cognizable Under the Foreign Claims Act

536.135 Statutory authority for the Foreign Claims Act.

536.136 Scope for claims arising under the Foreign Claims Act.

536.137 Claims payable under the Foreign Claims Act.

536.138 Claims not payable under the Foreign Claims Act.

536.139 Applicable law for claims under the Foreign Claims Act.

536.140 Appointment and functions of Foreign Claims Commissions.

536.141 Composition of Foreign Claims Commissions.

536.142 Qualification of members of Foreign Claims Commissions.

536.143 Settlement authority of Foreign Claims Commissions.

536.144 Reopening a claim after final action by a Foreign Claims

Commission.

536.145 Solatia payment.

Subpart K--Nonappropriated Fund Claims

536.146 Claims against nonappropriated fund employees--generally.

536.147 Claims by NAFI employees for losses incident to employment.

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

536.149 Identification of persons whose actions may generate

liability.

536.150 Claims payable from appropriated funds.

536.151 Settlement authority for claims generated by acts or

omissions of NAFI employees.

536.152 Payment of claims generated by acts or omissions of NAFI

employees.

536.153 Claims involving tortfeasors other than nonappropriated fund

employees: NAFI contractors.

536.154 Claims involving tortfeasors other than nonappropriated fund

employees: NAFI risk management program (RIMP) claims.

536.155 Claims payable involving tortfeasors other than

nonappropriated fund employees

employees.

536.152 Payment of claims generated by acts or omissions of NAFI

employees.

536.153 Claims involving tortfeasors other than nonappropriated fund

employees: NAFI contractors.

536.154 Claims involving tortfeasors other than nonappropriated fund

employees: NAFI risk management program (RIMP) claims.

536.155 Claims payable involving tortfeasors other than

nonappropriated fund employees.

536.156 Procedures for claims involving tortfeasors other than

nonappropriated fund employees.

536.157 Settlement/approval authority for claims involving

tortfeasors other than nonappropriated fund employees.

Authority: 10 U.S.C. 2733; 10 U.S.C. 1089; 10 U.S.C. 1054; 28

U.S.C. 1291, 2401-2402, 2411-2412, 2671-2680; 10 U.S.C. 2737; 32

U.S.C. 715; 10 U.S.C. 2734a, 2734b; 10 U.S.C. 2734;10 U.S.C. 4801,

4802, 4806; 46 U.S.C. app. 740; 39 U.S.C. 411; 10 U.S.C. 939; 10

U.S.C. 2736; 10 U.S.C. 2735; 10 U.S.C. 2731.

PART 536--CLAIMS AGAINST THE UNITED STATES

Subpart A--The Army Claims System

Sec. 536.1 Purpose of the Army Claims System.

This part sets forth policies and procedures that govern the

investigating, processing, and settling of claims against, and in favor

of, the United States under the authority conferred by statutes,

regulations, international and interagency agreements, and Department

of Defense Directives (DODDs). It is intended to ensure that claims are

investigated properly and adjudicated according to applicable law, and

valid recoveries and affirmative claims are pursued against carriers,

third-party insurers, and tortfeasors.

Sec. 536.2 Claims authorities.

nder the authority conferred by statutes,

regulations, international and interagency agreements, and Department

of Defense Directives (DODDs). It is intended to ensure that claims are

investigated properly and adjudicated according to applicable law, and

valid recoveries and affirmative claims are pursued against carriers,

third-party insurers, and tortfeasors.

Sec. 536.2 Claims authorities.

(a) General. Claims cognizable under the following list of statutes

and authorities are processed and settled under DA Pam 27-162 and this

part. All of these materials may be viewed on the USARCS Web site,

https://www.jagcnet.army.mil/85256F33005C2B92/(JAGCNETDocID)/

HOME?OPENDOCUMENT. Select the link ``Claims Resources.''

(1) Tort Claims. (i) The Military Claims Act (MCA), 10 United

States Code (U.S.C.) 2733 (see Subpart C of this part). The ``incident-

to-service'' provision, applicable to both military and civilian

personnel of the Department of Defense, is contained in the MCA.

(ii) The Gonzales Act, 10 U.S.C. 1089. This act permits individual

suits against health care providers for certain torts (see Sec.

536.80).

(iii) Certain suits arising out of legal malpractice, 10 U.S.C.

1054, discussed at Sec. 536.81 and at DA Pam 27-162, paragraph 2-62f.

(iv) The Federal Tort Claims Act (FTCA), 28 U.S.C. 1291, 1402,

2401-2402, 2411-2412, and 2671-2680 (see Subpart D of this part). The

Westfall Act, 28 U.S.C. 2679, an integral part of the FTCA, provides

absolute immunity from individual suit for common law torts for

employees of the United States acting within the scope of their

employment.

(A) The legislative history of the FTCA.

(B) Regulations of the Attorney General implementing the Federal

Tort Claims Act, 28 CFR part 14.

settlement authority to the Secretary of Veterans Affairs, the

Postmaster General, the Secretary of Defense, the Secretary of

Transportation, and the Secretary of Health and Human Services.

) The legislative history of the FTCA.

(B) Regulations of the Attorney General implementing the Federal

Tort Claims Act, 28 CFR part 14.

settlement authority to the Secretary of Veterans Affairs, the

Postmaster General, the Secretary of Defense, the Secretary of

Transportation, and the Secretary of Health and Human Services.

(v) The Non-Scope Claims Act (NSCA), 10 U.S.C. 2737 (see Subpart E

of this part).

(vi) The National Guard Claims Act (NGCA), 32 U.S.C. 715 (see

Subpart F of this part).

(vii) Claims under International Agreements or the Foreign Claims

Act.

(A) International Agreements Claims Act (IACA), 10 U.S.C. 2734a and

2734b.

(B) Foreign Claims Act (FCA), 10 U.S.C. 2734 (see Subpart J of this

part). (viii) The Army Maritime Claims Settlement Act (AMCSA), 10

U.S.C. 4801, 4802 and 4806. Affirmative claims under the AMCSA are

processed under 10 U.S.C. 4803 and 4804 (see Sec. 537.16 of this

chapter).

(ix) Admiralty Extension Act (AEA), 46 U.S.C. app. 740 (see Subpart

H of this part).

(x) Claims against nonappropriated fund (NAF) activities and the

risk management program (RIMP) (see Subpart K of this part), processed

under Army Regulation (AR) 215-1 and AR 608-10.

(xi) Claims by the U.S. Postal Service for losses or shortages in

postal accounts caused by unbonded Army personnel (39 U.S.C. 411 and

Department of Defense (DOD) Manual 4525.6-M).

(2) Personnel Claims (subpart I of this part and AR 27-20, chapter

11).

(i) The Personnel Claims Act (PCA), 31 U.S.C. 3721 (see AR 27-20,

chapter 11).

(ii) Redress of injuries to personal property, Uniform Code of

Military Justice (UCMJ), Article 139, 10 U.S.C. 939 (see Subpart I of

this part).

(3) Affirmative Claims (32 CFR part 537).

411 and

Department of Defense (DOD) Manual 4525.6-M).

(2) Personnel Claims (subpart I of this part and AR 27-20, chapter

11).

(i) The Personnel Claims Act (PCA), 31 U.S.C. 3721 (see AR 27-20,

chapter 11).

(ii) Redress of injuries to personal property, Uniform Code of

Military Justice (UCMJ), Article 139, 10 U.S.C. 939 (see Subpart I of

this part).

(3) Affirmative Claims (32 CFR part 537).

(i) The Federal Claims Collection Act (FCCA), 31 U.S.C. 3711-3720E.

(ii) The Federal Medical Care Recovery Act (FMCRA), 42 U.S.C. 2651-

2653.

(iii) Collection from third-party payers of reasonable costs of

healthcare services, 10 U.S.C. 1095 .

(b) Fund source authority for claims under Title 10 statutes. 10

U.S.C. 2736, advance payments for certain property claims (see Sec.

536.71).

Management Service (FMS). 31 U.S.C. 1304, provides authority for

judgments, awards and compromise settlements.

(d) Additional authorities under Title 10.

(1) 10 U.S.C. 2735, establishes that settlements (or ``actions'')

under the Title 10 claims processing statutes are final and conclusive.

(2) 10 U.S.C. 2731, provides a definition of the word ``settle.''

(e) Related remedies statutes. The Army frequently receives claims

or inquiries that are not cognizable under the statutory and other

authorities administered by the U.S. Army under this publication and DA

Pam 27-162. Every effort should be made to refer the claim or inquiry

to the proper authority following the guidance in Sec. 536.34 or Sec.

536.36. (See also the corresponding paragraphs 2-15 and 2-17,

respectively, in DA Pam 27-162). Some authorities for related remedies

are used more frequently than others. Where an authority for a related

remedy is frequently used, it is listed below and is

posted on the USARCS Web site (for the address see Sec. 536.2(a)).

to the proper authority following the guidance in Sec. 536.34 or Sec.

536.36. (See also the corresponding paragraphs 2-15 and 2-17,

respectively, in DA Pam 27-162). Some authorities for related remedies

are used more frequently than others. Where an authority for a related

remedy is frequently used, it is listed below and is

posted on the USARCS Web site (for the address see Sec. 536.2(a)).

(1) Tucker Act, 28 U.S.C. 1346, provides exclusive jurisdiction in

the Court of Federal Claims over causes of actions alleging property

loss caused by a Fifth Amendment ``taking.''

(2) Maritime authority statutes, Public Vessels Act (PVA), 46

U.S.C. app. 781-790, Suits in Admiralty Act (SIAA), 46 U.S.C. app. 741-

752, and the Rivers and Harbors Act, 33 U.S.C. 408 and 412.

(3) Federal Employees Compensation Act (FECA), two excerpts: 5

U.S.C. 8116 and 8140, providing guidance on personal injury and death

claims by civilian employees arising within the scope of their

employment (see DA Pam 27-162, paragraph 2-15b) and information on

certain claims by Reserve Officers Training Corps (ROTC) cadets,

respectively, (see DA Pam 27-162, paragraph 2-17d(2)).

(4) Longshore and Harbor Workers Compensation Act (LHWCA), 33

U.S.C. 901-950.

(5) Claims for consequential property damage by civilian employees

may only be considered in the Court of Federal Claims pursuant to 28

U.S.C. 1491.

(f) Additional materials. There are some additional authoritative

materials for the processing of claims, mostly of an administrative

nature. For a complete listing of all of the supplementary materials

relevant to claims processing under this publication and DA Pam 27-162

see Appendix B of DA Pam 27-162.

(g) Conflict of authorities. Where a conflict exists between a

general provision of this publication and a specific provision found in

one of this publication's subparts implementing a specific statute, the

specific provision, as set forth in the statute, will control.

Sec. 536.3 Command and organizational relationships.

der this publication and DA Pam 27-162

see Appendix B of DA Pam 27-162.

(g) Conflict of authorities. Where a conflict exists between a

general provision of this publication and a specific provision found in

one of this publication's subparts implementing a specific statute, the

specific provision, as set forth in the statute, will control.

Sec. 536.3 Command and organizational relationships.

(a) The Secretary of the Army. The Secretary of the Army (SA) heads

the Army Claims System and acts on certain claims appeals directly or

through a designee.

(b) The Judge Advocate General. The SA has delegated authority to

The Judge Advocate General (TJAG) to assign areas of responsibility and

designate functional responsibility for claims purposes. TJAG has

delegated authority to the Commander USARCS to carry out the

responsibilities assigned in Sec. 536.7 and as otherwise lawfully

delegable.

the Office of TJAG, is the agency through which the SA and TJAG

discharge their responsibilities for the administrative settlement of

claims worldwide (see AR 10-72). USARCS' mailing address is: U.S. Army

Claims Service, 4411 Llewellyn Ave., Fort George G. Meade, MD 20755-

5360, Commercial: (301) 677-7009.

(d) Command claims services. (1) Command claims services exercise

general supervisory authority over claims matters arising within their

assigned areas of operation. Command claims services will:

inistrative settlement of

claims worldwide (see AR 10-72). USARCS' mailing address is: U.S. Army

Claims Service, 4411 Llewellyn Ave., Fort George G. Meade, MD 20755-

5360, Commercial: (301) 677-7009.

(d) Command claims services. (1) Command claims services exercise

general supervisory authority over claims matters arising within their

assigned areas of operation. Command claims services will:

(i) Effectively control and supervise the investigation of

potentially compensable events (PCEs) occurring within the command's

geographic area of responsibility, in other areas for which the command

is assigned claims responsibility, and during the course of the

command's operations.

(ii) Provide services for the processing and settlement of claims

for and against the United States.

(2) The Commander USARCS may delegate authority to establish a

command claims service to the commander of a major overseas command or

other commands that include areas outside the United States, its

territories and possessions.

(i) When a large deployment occurs, the Commander USARCS may

designate a command claims service for a limited time or purpose, such

as for the duration of an operation and for the time necessary to

accomplish the mission. The appropriate major Army command (MACOM) will

assist the Commander USARCS in obtaining resources and personnel for

the mission.

(ii) In coordination with the Commander USARCS, the MACOM will

designate the area of responsibility for each new command claims

service.

(3) A command claims service may be a separate organization with a

designated commander or chief. If it is part of the command's Office of

the Staff Judge Advocate (SJA), the SJA will also be the chief of the

command claims service, however, the SJA may designate a field grade

officer as chief of the service.

COM will

designate the area of responsibility for each new command claims

service.

(3) A command claims service may be a separate organization with a

designated commander or chief. If it is part of the command's Office of

the Staff Judge Advocate (SJA), the SJA will also be the chief of the

command claims service, however, the SJA may designate a field grade

officer as chief of the service.

(e) Area claims offices. The following may be designated as area

claims offices (ACOs):

(1) An office under the supervision of the senior judge advocate

(JA) of each command or organization so designated by the Commander

USARCS. The senior JA is the head of the ACO.

(2) An office under supervision of the senior JA of each command in

the area of responsibility of a command claims service so designated by

the chief of that service after coordination with the Commander USARCS.

The senior JA is the head of the ACO.

(3) The office of counsel of each U.S. Army Corps of Engineers

(COE) district within the United States and such other COE commands or

agencies as designated by the Commander USARCS, with concurrence of the

Chief Counsel, Office of the Chief of Engineers, for all claims

generated within such districts, commands or agencies. The district

counsel or the attorney in charge of the command's or agency's legal

office is the head of the ACO.

(f) Claims processing offices. Claims processing offices (CPOs) are

normally small legal offices or ACO subordinate elements, designated by

the Commander USARCS, a command claims service or an ACO. These offices

are established for the investigation of all actual and potential

claims arising within their jurisdiction, on either an area, command or

agency basis. There are four types of claims processing offices (see

Sec. 536.10):

(1) Claims processing offices without approval authority.

(2) Claims processing offices with approval authority.

(3) Medical claims processing offices.

(4) Special claims processing offices.

r the investigation of all actual and potential

claims arising within their jurisdiction, on either an area, command or

agency basis. There are four types of claims processing offices (see

Sec. 536.10):

(1) Claims processing offices without approval authority.

(2) Claims processing offices with approval authority.

(3) Medical claims processing offices.

(4) Special claims processing offices.

(g) Limitations on delegation of authority under any subpart. (1)

The Commander USARCS, commanders or chiefs of command claims services,

or the heads of ACOs or CPOs with approval authority may delegate, in

writing, all or any portion of their monetary approval authority to

subordinate JAs or claims attorneys in their services or offices.

(2) The authority to act upon appeals or requests for

reconsideration, to deny claims (including disapprovals based on

substantial fraud), to grant waivers of maximum amounts allowable, or

to make final offers will not be delegated except that the Commander

USARCS may delegate this authority to USARCS Division Chiefs.

(3) CPOs will provide copies of all delegations affecting them to

the ACO and, if so directed, to command claims services.

Sec. 536.4 Designation of claims attorneys.

(a) Who may designate. The Commander USARCS, the senior JA of a

command having a command claims service, the chief of a command claims

service, the head of an ACO, or the Chief Counsel of a COE District,

may designate a qualified attorney other than a JA as a claims

attorney. The head of an ACO may designate a claims attorney to act as

a CPO with approval authority.

ion of claims attorneys.

(a) Who may designate. The Commander USARCS, the senior JA of a

command having a command claims service, the chief of a command claims

service, the head of an ACO, or the Chief Counsel of a COE District,

may designate a qualified attorney other than a JA as a claims

attorney. The head of an ACO may designate a claims attorney to act as

a CPO with approval authority.

(b) Eligibility. To qualify as a claims attorney, an individual

must be a civilian employee of the Department of the Army (DA) or DOD,

a member of the bar of a state, the District of Columbia, or a

jurisdiction where U.S. federal law applies, serving in the grade of

GS-11

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

Sec. 536.5 The Judge Advocate General.

TJAG has worldwide Army Staff responsibility for administrative

settlement of claims by and against the U.S. government, generated by

employees of the U.S. Army and DOD components other than the

Departments of the Navy and Air Force. Where the Army has single-

service responsibility, TJAG has responsibility for the Army. See DODD

5515.9. Certain claims responsibilities of TJAG are exercised by The

Assistant Judge Advocate General (TAJAG) as set forth in this part and

directed by TJAG.

Sec. 536.6 The Army claims mission.

(a) Promptly investigate potential claims incidents with a view to

determining the degree of the Army's exposure to liability, the damage

potential, and when the third party is at fault, whether the Army

should take action to collect for medical expenses, lost wages and

property damage.

(b) Efficiently and expeditiously dispose of claims against the

U.S. by fairly settling meritorious claims at the lowest level within

the claims system commensurate with monetary jurisdiction delegated, or

by denying non-meritorious claims.

potential, and when the third party is at fault, whether the Army

should take action to collect for medical expenses, lost wages and

property damage.

(b) Efficiently and expeditiously dispose of claims against the

U.S. by fairly settling meritorious claims at the lowest level within

the claims system commensurate with monetary jurisdiction delegated, or

by denying non-meritorious claims.

litigation and appeals can be avoided or kept to a minimum.

Sec. 536.7 Responsibilities of the Commander USARCS.

The Commander USARCS shall:

(a) Supervise and inspect claims activities worldwide.

(b) Formulate and implement claims policies and uniform standards

for claims office operations.

monetary authority and consider appeals and requests for

reconsideration on claims denied by the field offices.

(d) Supervise the investigation, processing, and settlement of

claims against, and in favor of, the United States under the statutes

and regulations listed in Sec. 536.2 and pursuant to other appropriate

statutes, regulations, and authorizations.

(e) Designate ACOs, CPOs, and claims attorneys within DA and DOD

components other than the Departments of the Navy and Air Force,

subject to concurrence of the commander concerned.

(f) Designate continental United States (CONUS) geographic areas of

claims responsibility.

(g) Recommend action to be taken by the SA, TJAG or the U.S.

Attorney General, as appropriate, on claims in excess of $25,000 or the

threshold amount then current under the FTCA, on claims in excess of

$100,000 or the threshold amount then current under the FCA, the MCA,

the NGCA, AMCSA, FCCA and FMRCA and on other claims that have been

appealed. Direct communication with Department of Justice (DOJ) and the

SA's designee is authorized.

JAG or the U.S.

Attorney General, as appropriate, on claims in excess of $25,000 or the

threshold amount then current under the FTCA, on claims in excess of

$100,000 or the threshold amount then current under the FCA, the MCA,

the NGCA, AMCSA, FCCA and FMRCA and on other claims that have been

appealed. Direct communication with Department of Justice (DOJ) and the

SA's designee is authorized.

(h) Operate the ``receiving State office'' for claims arising in

the United States, its territories, commonwealths and possessions

cognizable under Article VIII of the North Atlantic Treaty Organization

(NATO) Status of Forces Agreement (SOFA), Partnership for Peace (PFP)

SOFA, Article XVI of the Singapore SOFA, and other SOFAs which have

reciprocal claims provisions as delegated by TJAG, as implemented by 10

U.S.C. 2734a and 2734b (Subpart G of this part).

(i) Settle claims of the U.S. Postal Service for reimbursement

under 39 U.S.C. 411 (see DOD Manual 4525.6-M).

(j) Settle claims against carriers, warehouse firms, insurers, and

other third parties for loss of, or damage to, personal property of DA

or DOD soldiers or civilians incurred while the goods are in storage or

in transit at government expense (AR 27-20, chapter 11).

(k) Formulate and recommend legislation for Congressional enactment

of new statutes and the amendment of existing statutes considered

essential for the orderly and expeditious administrative settlement of

noncontractual claims.

(l) Perform post-settlement review of claims.

(m) Prepare, justify, and defend estimates of budgetary

requirements and administer the Army claims budget.

(n) Maintain permanent records of claims for which TJAG is

responsible.

(o) Assist in developing disaster and maneuver claims plans

designed to implement the responsibilities set forth in Sec.

536.9(a)(12).

ment of

noncontractual claims.

(l) Perform post-settlement review of claims.

(m) Prepare, justify, and defend estimates of budgetary

requirements and administer the Army claims budget.

(n) Maintain permanent records of claims for which TJAG is

responsible.

(o) Assist in developing disaster and maneuver claims plans

designed to implement the responsibilities set forth in Sec.

536.9(a)(12).

(p) Develop and maintain plans for a disaster or civil disturbance

in those geographic areas that are not under the jurisdiction of an

area claims authority and in which the Army has single-service

responsibility or in which the Army is likely to be the predominant

Armed Force.

(q) Take initial action, as appropriate, on claims arising in

emergency situations.

(r) Provide assistance as available or take appropriate action to

ensure that command claims services and ACOs are carrying out their

responsibilities as set forth in Sec. Sec. 536.8 and 536.9, including

claims assistance visits.

(s) Serve as proponent for the database management systems for

torts, personnel and affirmative claims and provide standard automated

claims data management programs for worldwide use.

(t) Ensure proper training of claims personnel.

(u) Coordinate claims activities with the Air Force, Navy, Marine

Corps, and other DOD agencies to ensure a consistent and efficient

joint service claims program.

(v) Investigate, process and settle, and supervise the field office

investigation and processing of, medical malpractice claims arising in

Army medical centers within the United States; provide medical claims

judge advocates (MCJAs), medical claims attorneys, and medical claims

investigators assigned to such medical centers with technical guidance

and direction on such claims.

(w) Coordinate support with the U.S. Army Medical Command (MEDCOM)

on matters relating to medical malpractice claims.

(x) Issue an accounting classification to all properly designated

claims settlement and approval authorities.

e advocates (MCJAs), medical claims attorneys, and medical claims

investigators assigned to such medical centers with technical guidance

and direction on such claims.

(w) Coordinate support with the U.S. Army Medical Command (MEDCOM)

on matters relating to medical malpractice claims.

(x) Issue an accounting classification to all properly designated

claims settlement and approval authorities.

(y) Perform the investigation, processing, and settlement of claims

arising in areas outside command claims service areas of operation.

(z) Maintain continuous worldwide deployment and operational

capability to furnish claims advice to any legal office or command

throughout the world. When authorized by the chain of command or

competent authority, issue such claims advice or services, including

establishing a claims system within a foreign country, interpreting

claims aspects of international agreements, and processing claims

arising from Army involvement in civil disturbances, chemical accidents

under the Chemical Energy Stockpile Program, other man-made or natural

disasters, and other claims designated by competent authority.

(aa) Upon receiving both the appropriate authority's directive or

order and full fiscal authorization, disburse the funds necessary to

administer civilian evacuation, relocation, and similar initial

response efforts in response to a chemical disaster arising at an Army

facility.

(bb) Respond to all inquiries from the President, members of

Congress, military officials, and the general public on claims within

USARCS' responsibility.

(cc) Serve as the proponent for this publication and DA Pam 27-162,

both

funds necessary to

administer civilian evacuation, relocation, and similar initial

response efforts in response to a chemical disaster arising at an Army

facility.

(bb) Respond to all inquiries from the President, members of

Congress, military officials, and the general public on claims within

USARCS' responsibility.

(cc) Serve as the proponent for this publication and DA Pam 27-162,

both

of which set forth guidance on personnel, tort, disaster and

affirmative claims, as well as claims management and administration.

(dd) Provide supervision for the Army's affirmative claims and

carrier recovery programs, as well as other methods for recovering

legal debts.

(ee) Provide support for the overseas environmental claims program

as designated by the DA.

(ff) Execute other claims missions as designated by DOD, DA, TJAG

and other competent authority.

(gg) Appoint Foreign Claims Commissions outside Command Claims

Services' geographic areas of responsibility.

(hh) Budget for and fund claims investigations and activities; such

as per diem and transportation of claims personnel, claimants and

witnesses; independent medical examinations; appraisals; independent

expert opinions; long distance telephone calls; recording and

photographic equipment; use of express mail or couriers; and other

necessary expenses.

Sec. 536.8 Responsibilities and operations of command claims

services.

(a) Chiefs of command claims services. Chiefs of command claims

services shall:

(1) Exercise claims settlement authority as specified in this part,

including appellate authority where so delegated.

(2) Supervise the investigation, processing, and settlement of

claims against, and in favor of the United States under the statutes

and regulations listed in Sec. 536.2, and pursuant to other

appropriate statutes, regulations, and authorizations.

mmand claims

services shall:

(1) Exercise claims settlement authority as specified in this part,

including appellate authority where so delegated.

(2) Supervise the investigation, processing, and settlement of

claims against, and in favor of the United States under the statutes

and regulations listed in Sec. 536.2, and pursuant to other

appropriate statutes, regulations, and authorizations.

(3) Designate and grant claims settlement authority to ACOs. A

grant of such authority will not be effective until coordinated with

the Commander USARCS, and assigned an office code. However, the chief

of a command claims service may redesignate a CPO that already has an

assigned office code as an ACO without coordination with the Commander

USARCS. The Commander USARCS, will be informed of such a designation.

(4) Designate and grant claims approval authority to CPOs. Only

CPOs staffed with a claims judge advocate (CJA) or claims attorney may

be granted approval authority. A grant of such authority will not be

effective until coordinated with the Commander USARCS, and assigned an

office code.

(5) Train claims personnel and monitor their operations and ongoing

claims administration. Conduct a training course annually.

(6) Implement pertinent claims policies.

(7) Prepare and publish command claims directives.

(8) Administer the command claims expenditure allowance, providing

necessary data, estimates, and reports to USARCS on a regular basis.

(9) Perform the responsibilities of an ACO (see Sec. 536.9), as

applicable, ensure that SOFA claims are investigated properly and

timely filed with the receiving State and adequately funded.

(10) Serve as the United States ``sending State office,'' if so

designated, when operating in an area covered by a SOFA.

(11) Supervise and provide technical assistance to subordinate ACOs

within the command claims service's geographic area of responsibility.

(12) Appoint FCCs.

ensure that SOFA claims are investigated properly and

timely filed with the receiving State and adequately funded.

(10) Serve as the United States ``sending State office,'' if so

designated, when operating in an area covered by a SOFA.

(11) Supervise and provide technical assistance to subordinate ACOs

within the command claims service's geographic area of responsibility.

(12) Appoint FCCs.

(b) Operations of Command Claims Services. The SJA of the command

shall supervise the command claims service. The command SJA may

designate a field grade JA as the chief of the service. An adequate

number of qualified claims personnel shall be assigned to ensure that

claims are promptly investigated and acted upon. With the concurrence

of the Commander USARCS, a command claims service may designate ACOs

within its area of operations to carry out claims responsibilities

within specified geographic areas subject to agreement by the commander

concerned.

Sec. 536.9 Responsibilities and operations of area claims offices.

(a) Heads of ACOs. Heads of ACOs, including COE offices (see Sec.

536.3(e)(3)) shall:

(1) Ensure that claims and potential claims incidents in their area

of responsibility are promptly investigated in accordance with this

part.

(2) Ensure that each organization or activity (for example, U.S.

Army Reserve (USAR) or Army National Guard of the United States

(ARNGUS) unit, ROTC detachment, recruiting company or station, or DOD

agency) within the area appoints a claims officer to investigate claims

incidents not requiring investigation by a JA (see Sec. 536.23) and

ensure that this officer is adequately trained.

(3) Supervise the investigation, processing, and settlement of

claims against, and in favor of, the United States under the statutes

and regulations listed in Sec. 536.2 and pursuant to other appropriate

statutes, regulations, and authorizations.

s officer to investigate claims

incidents not requiring investigation by a JA (see Sec. 536.23) and

ensure that this officer is adequately trained.

(3) Supervise the investigation, processing, and settlement of

claims against, and in favor of, the United States under the statutes

and regulations listed in Sec. 536.2 and pursuant to other appropriate

statutes, regulations, and authorizations.

(4) Act as a claims settlement authority on claims that fall within

the appropriate monetary jurisdictions set forth in this part and

forward claims exceeding such jurisdictions to the Commander USARCS, or

to the chief of a command claims service, as appropriate, for action.

(5) Designate CPOs and request that the Commander USARCS, or the

chief of a command claims service, as appropriate, grant claims

approval authority to a CPO for claims that fall within the

jurisdiction of that office.

(6) Supervise the operations of CPOs within their area.

(7) Implement claims policies and guidance furnished by the

Commander USARCS.

(8) Ensure that there are adequate numbers of qualified and

adequately trained CJAs or claims attorneys, RCJAs or attorneys,

recovery claims clerks, claims examiners, claims adjudicators and

claims clerks in all claims offices within their areas to act promptly

on claims.

(9) Budget for and fund claims investigations and activities, such

as: Per diem and transportation of claims personnel, claimants and

witnesses; independent medical examinations; appraisals and independent

expert opinions; long distance telephone calls; recording and

photographic equipment; use of express mail or couriers; and other

necessary expenses.

(10) Within the United States and its territories, commonwealths

and possessions, procure and disseminate, within their areas of

jurisdiction, appropriate legal publications on state or territorial

law and precedent relating to tort claims.

ent

expert opinions; long distance telephone calls; recording and

photographic equipment; use of express mail or couriers; and other

necessary expenses.

(10) Within the United States and its territories, commonwealths

and possessions, procure and disseminate, within their areas of

jurisdiction, appropriate legal publications on state or territorial

law and precedent relating to tort claims.

(11) Notify the Commander USARCS, of all claims and potentially

compensable events (PCEs) as required by Sec. 536.22(c); notify the

chief of a command claims service of all claims and PCEs.

(12) Develop and maintain written plans for a disaster or civil

disturbance. These plans may be internal SJA office plans or an annex

to an installation or an agency disaster response plan.

(13) Implement the Army's Article 139 claims program. (See Subpart

I of this part).

(14) Notify USARCS of possible deployments and ensure adequate FCCs

are appointed by USARCS and are trained.

(b) Operations of Area Claims Offices. (1) The ACO is the principal

office for the investigation and adjudication or settlement of claims,

and shall be staffed with qualified legal personnel under the

supervision of the SJA, command JA, or COE district or command legal

counsel.

(2) In addition to the utilization of unit claims officers required

by Sec. 536.10(a), if indicated, the full-time

responsibility for investigating and processing claims arising within

or related to the activities of a unit or organization located within a

section of the designated area may be delegated to another command,

unit, or activity by establishing a CPO at the command, unit, or

activity (see Sec. 536.10(b)(4)). Normally, all CPOs will operate

under the supervision of the ACO in whose area the CPO is located.

Where a proposed CPO is not under the command of the ACO parent

organization, this designation may be achieved by a support agreement

or memorandum of understanding between the affected commands.

unit, or activity by establishing a CPO at the command, unit, or

activity (see Sec. 536.10(b)(4)). Normally, all CPOs will operate

under the supervision of the ACO in whose area the CPO is located.

Where a proposed CPO is not under the command of the ACO parent

organization, this designation may be achieved by a support agreement

or memorandum of understanding between the affected commands.

(3) Normally, claims that cannot be settled by a COE ACO will be

forwarded directly to the Commander USARCS, with notice of referral to

the Chief Counsel, COE. However, as part of his or her responsibility

for litigating suits that involve civil works and military construction

activities, the Chief Counsel, COE, may require that a COE ACO forward

claims through COE channels, provided that such requirement does not

preclude the Commander USARCS from taking final action within the time

limitations set forth in subparts D and H of this part.

Sec. 536.10 Responsibilities and operations of claims processing

offices.

(a) Heads of CPOs. Heads of CPOs will:

(1) Investigate all potential and actual claims arising within

their assigned jurisdiction, on either an area, command, or agency

basis. Only a CPO that has approval authority may adjudicate and pay

presented claims within its monetary jurisdiction.

(2) Ensure that units and organizations within their jurisdiction

have appointed claims officers for the investigation of claims not

requiring a JA's investigation. (See Sec. 536.22).

(3) Budget for and fund claims investigations and activities;

including, per diem and transportation of claims personnel, claimants

and witnesses; independent medical examinations; appraisals;

independent expert opinions; long distance telephone calls; recording

and photographic equipment; use of express mail or couriers; and other

necessary expenses.

(4) Within CONUS, procure and maintain legal publications on local

law relating to tort claims pertaining to their jurisdiction.

ansportation of claims personnel, claimants

and witnesses; independent medical examinations; appraisals;

independent expert opinions; long distance telephone calls; recording

and photographic equipment; use of express mail or couriers; and other

necessary expenses.

(4) Within CONUS, procure and maintain legal publications on local

law relating to tort claims pertaining to their jurisdiction.

(5) Notify the Commander USARCS of all claims and claims incidents,

as required by Sec. 536.22 and AR 27-20, paragraph 2-12.

(6) Implement the Army's Article 139 claims program (see Subpart I

of this part).

(b) Operations of claims processing offices. (1) Claims processing

office with approval authority. A CPO that has been granted approval

authority must provide for the investigation of all potential and

actual claims arising within its assigned jurisdiction, on an area,

command, or agency basis, and for the adjudication and payment of all

claims presented within its monetary jurisdiction. If the estimated

value of a claim, after investigation, exceeds the CPO's payment

authority, or if disapproval is the appropriate action, the claim file

will be forwarded to the ACO unless otherwise specified in this part,

or forwarded to USARCS or the command claims service, if directed by

such service.

(2) Claims processing offices without approval authority. A CPO

that has not been granted claims approval authority will provide for

the investigation of all potential and actual claims arising within its

assigned jurisdiction on an area, command, or agency basis. Once the

investigation has been completed, the claim file will be forwarded to

the appropriate ACO for action. Alternatively, an ACO may direct the

transfer of a claim investigation from a CPO without approval authority

to another CPO with approval authority, located within the ACO's

jurisdiction.

nd actual claims arising within its

assigned jurisdiction on an area, command, or agency basis. Once the

investigation has been completed, the claim file will be forwarded to

the appropriate ACO for action. Alternatively, an ACO may direct the

transfer of a claim investigation from a CPO without approval authority

to another CPO with approval authority, located within the ACO's

jurisdiction.

(3) Medical claims processing offices. The MCJAs or medical claims

attorneys at Army medical centers, other than Walter Reed Army Medical

Center, may be designated by the SJA or head of the ACO for the

installation on which the center is located as CPOs with approval

authority for medical malpractice claims only. Claims for amounts

exceeding a medical CPO's approval authority will be investigated and

forwarded to the Commander USARCS.

(4) Special claims processing offices. (i) Designation and

authority. The Commander USARCS, the chief of a command claims service,

or the head of an ACO may designate special CPOs within his or her

command for specific, short-term purposes (for example, maneuvers,

civil disturbances and emergencies). These special CPOs may be

delegated the approval authority necessary to effect the purpose of

their creation, but in no case will this delegation exceed the maximum

monetary approval authority set forth in other subparts of this part

for regular CPOs. All claims will be processed under the claims

expenditure allowance and claims command and office code of the

authority that established the office or under a code assigned by

USARCS. The existence of any special CPO must be reported to the

Commander USARCS, and the chief of a command claims service, as

appropriate.

pproval authority set forth in other subparts of this part

for regular CPOs. All claims will be processed under the claims

expenditure allowance and claims command and office code of the

authority that established the office or under a code assigned by

USARCS. The existence of any special CPO must be reported to the

Commander USARCS, and the chief of a command claims service, as

appropriate.

(ii) Maneuver damage and claims office jurisdiction. A special CPO

is the proper organization to process and approve maneuver damage

claims, except when a foreign government is responsible for

adjudication pursuant to an international agreement (see Subpart G of

this part). Personnel from the maneuvering command should be used to

investigate claims and, at the ACO's discretion, may be assigned to the

special CPO. The ACO will process claims filed after the maneuver

terminates. The special CPO will investigate claims arising while units

are traveling to or from the maneuver within the jurisdiction of other

ACOs, and forward such claims for action to the ACO in whose area the

claims arose. Claims for damage to real or personal property arising on

private land that the Army has used under a permit may be paid from

funds specifically budgeted by the maneuver for such purposes in

accordance with AR 405-15.

(iii) Disaster claims and civil disturbance. A special CPO provided

for a disaster or civil disturbance should include a claims approving

authority with adequate investigatory, administrative, and logistical

support, including damage assessment and finance and accounting

support. It will not be dispatched prior to notification of the

Commander USARCS, whose concurrence must be obtained before the first

claim is paid.

(5) Supervisory requirements. The CPOs discussed in paragraphs

l disturbance should include a claims approving

authority with adequate investigatory, administrative, and logistical

support, including damage assessment and finance and accounting

support. It will not be dispatched prior to notification of the

Commander USARCS, whose concurrence must be obtained before the first

claim is paid.

(5) Supervisory requirements. The CPOs discussed in paragraphs

(b)(2) through (b)(4) of this section must be supervised by an assigned

CJA or claims attorney in order to exercise delegated approval

authority.

Sec. 536.11 Chief of Engineers.

The Chief of Engineers, through the Chief Counsel, shall:

(a) Provide general supervision of the claims activities of COE

ACOs.

(b) Ensure that each COE ACO has a claims attorney designated in

accordance with Sec. 536.4.

monitor their ongoing claims administration.

(d) Implement pertinent claims policies.

(e) Provide for sufficient funding in accordance with existing Army

regulations and command directives for temporary duty (TDY), long

distance telephone calls, recording equipment, cameras, and other

expenses for investigating and processing claims.

(f) Procure and maintain adequate legal publications on local law

relating to claims arising within the United States, its territories,

commonwealths and possessions.

(g) Assist USARCS in evaluation of claims by furnishing qualified

expert and technical advice from COE resources, on a non-reimbursable

basis except for temporary duty (TDY) and specialized lab services

expenses.

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

cations on local law

relating to claims arising within the United States, its territories,

commonwealths and possessions.

(g) Assist USARCS in evaluation of claims by furnishing qualified

expert and technical advice from COE resources, on a non-reimbursable

basis except for temporary duty (TDY) and specialized lab services

expenses.

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

(a) After consulting with the Commander USARCS on the selection of

medical claims attorneys, the Commander of the U.S. Army MEDCOM, the

European Medical Command, or other regional medical command, through

his or her SJA/Center Judge Advocate, shall ensure that an adequate

number of qualified MCJAs or medical claims attorneys and medical

claims investigators are assigned to investigate and process medical

malpractice claims arising at Army medical centers under the

Commander's control. In accordance with an agreement between TJAG and

The Surgeon General, such personnel shall be used primarily to

investigate and process medical malpractice claims and affirmative

claims and will be provided with the necessary funding and research

materials to carry out this function.

(b) Upon request of a claims judge advocate or claims officer,

shall provide a qualified health care provider at a medical treatment

facility (MTF) to examine a claimant for his injuries even if the

claimant is not otherwise entitled to care at an MTF (See AR 40-400,

Patient Administration, paragraph 3-47).

Sec. 536.13 Chief, National Guard Bureau.

The Chief, National Guard Bureau (NGB), shall:

(a) Ensure the designation of a point of contact for claims matters

in each State Adjutant General's office.

(b) Provide the name, address, and telephone number of these points

of contact to the Commander USARCS.

erwise entitled to care at an MTF (See AR 40-400,

Patient Administration, paragraph 3-47).

Sec. 536.13 Chief, National Guard Bureau.

The Chief, National Guard Bureau (NGB), shall:

(a) Ensure the designation of a point of contact for claims matters

in each State Adjutant General's office.

(b) Provide the name, address, and telephone number of these points

of contact to the Commander USARCS.

ARNG personnel and forward investigations to the Active Army ACO that

has jurisdiction over the area in which the claims incident occurred.

Sec. 536.14 Commanders of major Army commands.

Commanders of MACOMs, through their SJAs, shall:

(a) Assist USARCS in monitoring ACOs and CPOs under their

respective commands for compliance with the responsibilities assigned

in Sec. Sec. 536.9 and 536.10.

(b) Assist claims personnel in obtaining qualified expert and

technical advice from command units and organizations on a

nonreimbursable basis (although the requesting office may be required

to provide TDY funding).

functions set forth in Sec. 536.7.

(d) Coordinate with the ACO within whose jurisdiction a maneuver is

scheduled, to ensure the prompt investigation and settlement of any

claims arising from it.

Sec. 536.15 Claims policies.

(a) General. The following policies will be adhered to in

processing and adjudicating claims falling within this regulation. The

Commander USARCS is authorized to publish new policies or rescind

existing policies from time to time as the need arises.

iction a maneuver is

scheduled, to ensure the prompt investigation and settlement of any

claims arising from it.

Sec. 536.15 Claims policies.

(a) General. The following policies will be adhered to in

processing and adjudicating claims falling within this regulation. The

Commander USARCS is authorized to publish new policies or rescind

existing policies from time to time as the need arises.

(1) Notification. The Commander USARCS must be notified as soon as

possible of both potential and actual claims which are serious

incidents that cannot be settled within the monetary jurisdiction of a

Command Claims Service or an ACO, including those which occur in the

area of responsibility of a CPO. On such claims, the USARCS Area Action

Officer (AAO) must coordinate with the field office as to all aspects

of the investigation, evaluation and determination of liability. An

offer of settlement or the assertion of an affirmative claim must be

the result of a discussion between the AAO and the field office.

Payment of a subrogated claim may commit the United States to liability

as to larger claims. On the other hand, where all claims out of an

incident can be paid within field authority they should be paid

promptly with maximum use of small claims procedures.

(2) Consideration under all subparts. Prior to denial, a claim will

be considered under all subparts of this part, regardless of the form

on which the claim is presented. A claim presented as a personnel claim

will be considered as a tort prior to denial. A claim presented as a

tort will first be considered as a personnel claim, and if not payable,

then considered as a tort. If deniable, the claim will be denied both

as a personnel claim and as a tort.

will

be considered under all subparts of this part, regardless of the form

on which the claim is presented. A claim presented as a personnel claim

will be considered as a tort prior to denial. A claim presented as a

tort will first be considered as a personnel claim, and if not payable,

then considered as a tort. If deniable, the claim will be denied both

as a personnel claim and as a tort.

(3) Compromise. DA policy seeks to compromise claims in a manner

that represents a fair and equitable result to both the claimant and

the United States. This policy does not extend to frivolous claims or

claims lacking factual or legal merit. A claim should not be settled

solely to avoid further processing time and expense. All claims,

regardless of amount, should be evaluated. Congress imposed no minimum

limit on payable claims nor did it intend that small non-meritous

claims be paid. Practically any claim, regardless of amount, may be

subject to compromise through direct negotiation. A CJA or claims

attorney should develop expertise in assessing liability and damages,

including small property damage claims. For example, a property damage

claim may be compromised by deducting the cost of collection, i.e.,

attorney fees and costs, even where liability is certain.

(4) Expeditious processing at the lowest level. Claims

investigation and adjudication should be accomplished at the lowest

possible level, such as the CPO or ACO that has monetary authority over

the estimated total value of all claims arising from the incident. The

expeditious investigation and settlement of claims is essential to

successfully fulfilling the Army's responsibilities under the claims

statutes implemented by this part.

evel. Claims

investigation and adjudication should be accomplished at the lowest

possible level, such as the CPO or ACO that has monetary authority over

the estimated total value of all claims arising from the incident. The

expeditious investigation and settlement of claims is essential to

successfully fulfilling the Army's responsibilities under the claims

statutes implemented by this part.

(5) Notice to claimants of technical errors in claim. When

technical errors are found in a claim's filing or contents, claimants

should be advised of such errors and the need to correct the claim. If

the errors concern a jurisdictional matter, a record should be

maintained and the claimant should be immediately warned that the error

must be corrected before the statute of limitations (SOL) expires.

(b) Cooperative investigative environment. Any person who indicates

a desire to file a claim against the United States cognizable under one

of the subparts of this part will be instructed concerning the

procedure to follow. The claimant will be furnished claim forms and,

when necessary, assisted in completing claim forms, and may be assisted

in assembling evidence. Claims personnel may not assist any claimant in

determining what amount to claim. During claims investigation, every

effort should be made to create a cooperative environment that

engenders the free exchange of information and evidence. The goal of

obtaining sufficient information to make an objective and fair analysis

should be paramount. Personal contact with claimants or their

representatives is essential both during investigation and before

adjudication. When settlement is not feasible, issues in dispute should

be clearly identified to facilitate resolution of any reconsideration,

appeal or litigation.

ion and evidence. The goal of

obtaining sufficient information to make an objective and fair analysis

should be paramount. Personal contact with claimants or their

representatives is essential both during investigation and before

adjudication. When settlement is not feasible, issues in dispute should

be clearly identified to facilitate resolution of any reconsideration,

appeal or litigation.

command claims directives will be furnished to

the Commander USARCS. ACO directives will be distributed to all DA and

DOD commands, installations and activities within the ACO's area of

responsibility, with an information copy to the Commander USARCS.

(2) Disaster and civil preparedness plan. One copy of all ACOs'

disaster or civil disturbance plans or annexes will be furnished to the

Commander USARCS.

(d) Interpretations. The Commander USARCS will publish written

interpretations of this part. Interpretations will have the same force

and effect as this part.

(e) Authority to grant exceptions to and deviations from this part.

If, in particular instances, it is considered to be in the best

interests of the government, the Commander USARCS may authorize

deviations from this part's specific requirements, except as to matters

based on statutes, treaties and international agreements, executive

orders, controlling directives of the Attorney General or Comptroller

General, or other publications that have the force and effect of law.

(f) Guidance. The Commander USARCS, may publish bulletins, manuals,

handbooks and notes, and a DA Pamphlet that provides guidance to claims

authorities on administrative and procedural rules implementing this

part. These will be binding on all Army claims personnel.

(g) Communication. All claims personnel are authorized to

communicate directly with USARCS personnel for guidance on matters of

policy or on matters relating to the implementation of this part.

handbooks and notes, and a DA Pamphlet that provides guidance to claims

authorities on administrative and procedural rules implementing this

part. These will be binding on all Army claims personnel.

(g) Communication. All claims personnel are authorized to

communicate directly with USARCS personnel for guidance on matters of

policy or on matters relating to the implementation of this part.

(h) Private relief bills. The issue of a private relief bill is one

between a claimant and his or her Congressional representative. There

is no established procedure under which the DA sponsors private relief

legislation. Claims personnel shall remain neutral in all private

relief matters and shall not make any statement that purports to

reflect the DA's position on a private relief bill.

Sec. 536.16 Release of information policies.

(a) Conflict of interest. Except as part of their official duties,

government personnel are forbidden from advising or representing

claimants or from receiving any payment or gratuity for services

rendered. They may not accept any share or interest in a claim or

assist in its presentation, under penalty of federal criminal law (18

U.S.C. 203 and 205).

(b) Release of information. (1) Relevant statutes pertinent to the

release of information include the Privacy Act of 1974, 5 U.S.C. 552a

and 552b, the Freedom of Information Act (FOIA), 5 U.S.C. 552 and the

Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C.

1320d through 1320d-8.

(2) It is the policy of USARCS that unclassified attorney work

product may be released with or without a request from the claimant or

attorney, whenever such release may help settle the claim or avoid

unnecessary litigation.

552a

and 552b, the Freedom of Information Act (FOIA), 5 U.S.C. 552 and the

Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C.

1320d through 1320d-8.

(2) It is the policy of USARCS that unclassified attorney work

product may be released with or without a request from the claimant or

attorney, whenever such release may help settle the claim or avoid

unnecessary litigation.

(3) A statutory exemption or privilege may not be waived.

Similarly, documents subject to such statutorily required

nondisclosure, exemption, or privilege may not be released. Regarding

other exemptions and privileges, authorities may waive such exemptions

or privileges and direct release of the protected documents, upon

balancing all pertinent factors, including finding that release of

protected records will not harm the government's interest, will promote

settlement of a claim and will avoid unnecessary litigation, or for

other good cause.

(4) All requests for records and information made pursuant to the

FOIA, 5 U.S.C. 552, the Privacy Act of 1974, 5 U.S.C. 552a, or HIPAA,

42 U.S.C. 1320d, will be processed in accordance with the procedures

set forth in AR 25-55 and AR 340-21, respectively as well as 45 CFR

parts 160 and 164, DODD 6025.18-R, this part, and DA Pam 27-162.

(i) Any request for DOD records that either explicitly or

implicitly cites the FOIA shall be processed under the provisions of AR

25-55. Requests for DOD records submitted by a claimant or claimant's

attorney will be processed under both the FOIA and under the Privacy

Act when the request is made by the subject of the records requested

and those records are maintained in a system of records. Such requests

will be processed under the FOIA time limits and the Privacy Act fee

provisions. Withheld information must be exempt from disclosure under

both Acts.

bmitted by a claimant or claimant's

attorney will be processed under both the FOIA and under the Privacy

Act when the request is made by the subject of the records requested

and those records are maintained in a system of records. Such requests

will be processed under the FOIA time limits and the Privacy Act fee

provisions. Withheld information must be exempt from disclosure under

both Acts.

(ii) Requests that cite both Acts or neither Act are processed

under both Acts, using the FOIA time limits and the Privacy Act fee

provisions. For further guidance, see AR 25-55, paragraphs 1-301 and 1-

503.

(5) The following records may not be disclosed:

(i) Medical quality assurance records exempt from disclosure

pursuant to 10 U.S.C. 1102(a).

(ii) Records exempt from disclosure pursuant to appropriate

balancing tests under FOIA exemption (6) (clearly unwarranted invasion

of personal privacy), exemption (7)(c) (reasonably constitutes

unwarranted invasion of privacy), and law enforcement records (5 U.S.C.

552 (b)) unless requested by the subject of the record.

(iii) Records protected by the Privacy Act.

(iv) Records exempt from disclosure pursuant to FOIA exemption (1)

(National security) (5 U.S.C. 552(b)), unless such records have been

properly declassified.

(v) Records exempt from disclosure pursuant to the attorney-client

privilege under FOIA exemption (5) (5 U.S.C. 552(b)), unless the client

consents to the disclosure.

(6) Records within a category for which withholding of the record

is discretionary (AR 25-55, paragraph 3-101), such as exemptions under

the deliberative process or attorney work product privileges (exemption

(5) (5 U.S.C. 552(b)) may be released when there is no foreseeable harm

to government interests in the judgment of the releasing authority.

unless the client

consents to the disclosure.

(6) Records within a category for which withholding of the record

is discretionary (AR 25-55, paragraph 3-101), such as exemptions under

the deliberative process or attorney work product privileges (exemption

(5) (5 U.S.C. 552(b)) may be released when there is no foreseeable harm

to government interests in the judgment of the releasing authority.

(7) When it is determined that exempt information should not be

released, or a question as to its releaseability exists, forward the

request and two copies of the responsive documents to the Commander

USARCS. The Commander USARCS, acting on behalf of TJAG (the initial

denial authority), may deny release of records processed under the FOIA

only. The Commander USARCS, will forward to TJAG all such requests

processed under both the FOIA and PA. TJAG is the denial authority for

Privacy Act requests (AR 340-21, paragraph 1-7i).

maneuver or disaster, claims personnel may disseminate information on

the right to present claims, procedures to be followed, and the names

and location of claims officers and the COE repair teams. When the

government of a foreign country in which U.S. Armed Forces are

stationed has assumed responsibility for the settlement of certain

claims against the United States, officials of that country will be

furnished as much pertinent information and evidence as security

considerations permit.

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

DODD 5515.9).

(a) Assignment for DOD claims. The Army is responsible for

processing DOD claims pursuant to DODD 5515.9 (posted on the USARCS Web

site; for the address see Sec. 536.2(a)).

he United States, officials of that country will be

furnished as much pertinent information and evidence as security

considerations permit.

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

DODD 5515.9).

(a) Assignment for DOD claims. The Army is responsible for

processing DOD claims pursuant to DODD 5515.9 (posted on the USARCS Web

site; for the address see Sec. 536.2(a)).

(b) Statutes and agreements. DOD has assigned single-service

responsibility for the settlement of certain claims in certain

countries, pursuant to DODD 5515.8 (posted on the USARCS Web

site; for the address see Sec. 536.2(a)) under the following statutes

and agreements:

(1) FCA (10 U.S.C. 2734);

(2) MCA (10 U.S.C. 2733);

(3) Status of Forces Agreements (10 U.S.C. 2734a and 2734b);

(4) NATO SOFA (4 U.S.T. 1792, Treaties and International Acts

Series (T.I.A.S.) 2846) and other similar agreements;

(5) FCCA (31 U.S.C. 3711-3720E) and FMCRCA (42 U.S.C. 2651-2653);

(6) Claims not cognizable under any other provision of law, 10

U.S.C. 2737; and

(7) Advance payments, 10 U.S.C. 2736.

of claims cognizable under the laws listed above has been assigned to

military departments pursuant to DODD 5515.8, as supplemented by

executive agreement and other competent directives.

(d) When claims responsibility has not been assigned. When

necessary to implement contingency plans, the unified or specified

commander with authority over the geographic area in question may, on

an interim basis before receiving confirmation and approval from the

General Counsel, DOD, assign single-service responsibility for

processing claims in countries where such assignment has not already

been made.

Note to Sec. 536.17: See also Sec. 536.32 for information on

transferring claims among armed services branches.

Sec. 536.18 Cross-servicing of claims.

phic area in question may, on

an interim basis before receiving confirmation and approval from the

General Counsel, DOD, assign single-service responsibility for

processing claims in countries where such assignment has not already

been made.

Note to Sec. 536.17: See also Sec. 536.32 for information on

transferring claims among armed services branches.

Sec. 536.18 Cross-servicing of claims.

(a) Where claims responsibility has not been assigned. Claims

cognizable under the FCA or the MCA that are generated by another

military department within a foreign country for which single-service

claims responsibility has not been assigned, may be settled by the Army

upon request of the military department concerned. Conversely, Army

claims may in appropriate cases be referred to another military

department for settlement, DODD 5515.8, E1.2 (posted on the USARCS Web

site; for the address see Sec. 536.2(a)). Tables listing claims

offices worldwide are posted to the USARCS Web site at that address.

U.S. Air Force claims offices may be identified by visiting the Web

site at http://afmove.hq.af.mil/page_afclaims.asp.

(b) Claims generated by the Coast Guard. Claims resulting from the

activities of, or generated by, Coast Guardsmen or civilian employees

of the Coast Guard while it is operating as a service of the U.S.

Department of Homeland Security may upon request be settled under this

part by a foreign claims commission appointed as authorized herein, but

they will be paid from Coast Guard appropriations, 10 U.S.C. 2734.

the NATO PFP or Singaporean SOFAs arising out of the activities of

aircraft within the United States may be investigated and adjudicated

by the U.S. Air Force under a delegation from the Commander USARCS.

Claims exceeding the delegated amount will be adjudicated by the

USARCS.

d from Coast Guard appropriations, 10 U.S.C. 2734.

the NATO PFP or Singaporean SOFAs arising out of the activities of

aircraft within the United States may be investigated and adjudicated

by the U.S. Air Force under a delegation from the Commander USARCS.

Claims exceeding the delegated amount will be adjudicated by the

USARCS.

(d) Claims generated by the American Battle Monuments Commission.

Claims arising out of the activities of or in cemeteries outside the

United States managed by the American Battle Monuments Commission (36

U.S.C. 2110) will be investigated and adjudicated by the U.S. Army.

Note to Sec. 536.18: See also Sec. 536.32 for information on

transferring claims among armed services branches.

Sec. 536.19 Disaster claims planning.

All ACOs will prepare a disaster claims plan and furnish a copy to

USARCS. See DA Pam 27-162, paragraph 1-21 for specific requirements

related to disaster claims planning.

Sec. 536.20 Claims assistance visits.

Members of USARCS and command claims services will make claims

assistance visits to field offices on a periodic basis. See DA Pam 27-

162, paragraph 1-22 for specific requirements related to claims

assistance visits.

Sec. 536.21 Annual claims award.

The Commander USARCS will make an annual claims award to

outstanding field offices. See DA Pam 27-162, para 1-23 for more

information on annual claims awards.

Subpart B--Investigation and Processing of Claims

Sec. 536.22 Claims investigative responsibility--general.

(a) Scope. This subpart addresses the investigation, processing,

evaluation, and settlement of tort and tort-related claims for and

against the United States. The provisions of this subpart do not apply

to personnel claims (AR 27-20, chapter 11), or to claims under subpart

G of this part, Sec. Sec. 536.113 through 536.116.

of Claims

Sec. 536.22 Claims investigative responsibility--general.

(a) Scope. This subpart addresses the investigation, processing,

evaluation, and settlement of tort and tort-related claims for and

against the United States. The provisions of this subpart do not apply

to personnel claims (AR 27-20, chapter 11), or to claims under subpart

G of this part, Sec. Sec. 536.113 through 536.116.

(b) Cooperation. Claims investigation requires team effort between

the U.S. Army Claims Service (USARCS), command claims services, and

area claims offices (ACOs) including U.S. Army Corps of Engineers (COE)

District Offices, claims processing offices (CPOs), and unit claims

officers. Essential to this effort is the immediate investigation of

claims incidents. Prompt investigation depends on the timely reporting

of claims incidents as well as continuous communication between all

commands or echelons bearing claims responsibility.

potentially compensable event (PCE) that requires investigation will

immediately refer it to the appropriate claims office. The Commander

USARCS will be notified of all major incidents involving serious injury

or death or those in which property damage exceeds $50,000. A command

claims service may delegate to an ACO the responsibility for advising

USARCS of serious incidents and complying with mirror file

requirements. A copy of the written delegation and any changes made

thereafter will be forwarded to the Commander USARCS.

USARCS will be notified of all major incidents involving serious injury

or death or those in which property damage exceeds $50,000. A command

claims service may delegate to an ACO the responsibility for advising

USARCS of serious incidents and complying with mirror file

requirements. A copy of the written delegation and any changes made

thereafter will be forwarded to the Commander USARCS.

(d) Geographic concept of responsibility. A command claims service

or an ACO in whose geographic area a claims incident occurs is

primarily responsible for initiating investigation and processing of

any claim filed in the absence of a formal transfer of responsibility

(see Sec. Sec. 536.30 through 536.36). DOD and Army organizations

whose personnel are involved in the incident will cooperate with and

assist the ACO, regardless of where the former may be located.

Note to Sec. 536.22: See the parallel discussion at DA Pam 27-

162, paragraph 2-1.

Sec. 536.23 Identifying claims incidents both for and against the

government.

(a) Investigation is required when:

(1) There is property loss or damage.

(i) Property other than that belonging to the government is

damaged, lost, or destroyed by an act or omission of a government

employee or a member of North Atlantic Treaty Association (NATO),

Australian or Singaporean forces stationed or on temporary duty within

the United States.

(ii) Property belonging to the government is damaged or lost by a

tortious act or omission not covered by the report of survey system or

by a carrier's bill of lading.

(2) There is personal injury or death.

ct or omission of a government

employee or a member of North Atlantic Treaty Association (NATO),

Australian or Singaporean forces stationed or on temporary duty within

the United States.

(ii) Property belonging to the government is damaged or lost by a

tortious act or omission not covered by the report of survey system or

by a carrier's bill of lading.

(2) There is personal injury or death.

(i) A civilian other than an employee of the U.S. government is

injured or killed by an act or omission of a

government employee or by a member of a NATO, Australian or Singaporean

force stationed or on temporary duty within the United States. (This

category includes patients injured during treatment by a health care

provider).

(ii) Service members, active or retired, family members of either,

or U.S. employees, are injured or killed by a third party and receive

medical care at government expense.

(3) A claim is filed.

(4) A competent authority or another armed service or federal

agency requires investigation.

(b) Determining who is a government employee is a matter of

federal, not local, law. Categories of government employees usually

accepted as tortfeasors under federal law are:

(1) Military personnel (soldiers of the Army, or members of other

services where the Army exercises single-service jurisdiction on

foreign soil; and soldiers or employees within the United States who

are members of NATO or of other foreign military forces with whom the

United States has a reciprocal claims agreement and whose sending

States have certified that they were acting within the scope of their

duty) who are serving on full-time active duty in a pay status,

including soldiers:

ises single-service jurisdiction on

foreign soil; and soldiers or employees within the United States who

are members of NATO or of other foreign military forces with whom the

United States has a reciprocal claims agreement and whose sending

States have certified that they were acting within the scope of their

duty) who are serving on full-time active duty in a pay status,

including soldiers:

(i) Assigned to units performing active or inactive duty.

(ii) Serving on active duty as Reserve Officer Training Corps

(ROTC) instructors.

(iii) Serving as Army National Guard (ARNG) instructors or

advisors.

(iv) On duty or training with other federal agencies, for example:

The National Aeronautics and Space Administration, the Department of

State, the Navy, the Air Force, or DOD (federal agencies other than the

armed service to which the Soldier is attached may also provide a

remedy).

(v) Assigned as students or ordered into training at a non-federal

civilian educational institution, hospital, factory, or other facility

(excluding soldiers on excess leave or those for whom the training

institution or organization has assumed liability by written

agreement).

(vi) Serving on full-time duty at nonappropriated fund (NAF)

activities.

(vii) Of the United States Army Reserve (USAR) and ARNG on active

duty under Title 10, U.S.C.

(2) Military personnel who are United States Army Reserve soldiers

including ROTC cadets who are Army Reserve soldiers while at annual

training, during periods of active duty and inactive duty training.

(3) Military personnel who are soldiers of the ARNG while engaged

in training or duty under 32 U.S.C. 316, 502, 503, 504, 505, or engaged

in properly authorized community action projects under the Federal Tort

Claims Act (FTCA), the Non-Scope Claims Act (NSCA), or the National

Guard Claims Act (NGCA), unless performing duties in furtherance of a

mission for a state, commonwealth, territory or possession.

personnel who are soldiers of the ARNG while engaged

in training or duty under 32 U.S.C. 316, 502, 503, 504, 505, or engaged

in properly authorized community action projects under the Federal Tort

Claims Act (FTCA), the Non-Scope Claims Act (NSCA), or the National

Guard Claims Act (NGCA), unless performing duties in furtherance of a

mission for a state, commonwealth, territory or possession.

(4) Civilian officials and employees of both the DOD and DA (there

is no practical significance to the distinction between the terms

``official'' and ``employee''), including but not limited to the

following:

(i) Civil service and other full-time employees of both the DOD and

DA who are paid from appropriated funds.

(ii) Persons providing direct health care services pursuant to

personal service contracts under 10 U.S.C. 1089 or 1091 or where

another person exercised control over the health care provider's day-

to-day practice. When the conduct of a health care provider performing

services under a personal service contract is implicated in a claim,

the CJA, Medical Claims Judge Advocate (MCJA), or claims attorney

should consult with USARCS to determine if that health care provider

can be considered an employee for purposes of coverage.

(iii) Employees of a NAF instrumentality (NAFI) if it is an

instrumentality of the United States and thus a federal agency. To

determine whether a NAFI is a ``federal agency,'' consider both whether

it is an integral part of the Army charged with an essential DA

operational function and also what degree of control and supervision DA

personnel exercise over it. Members or users, unlike employees of

NAFIs, are not considered government employees; the same is true of

family child care providers

hus a federal agency. To

determine whether a NAFI is a ``federal agency,'' consider both whether

it is an integral part of the Army charged with an essential DA

operational function and also what degree of control and supervision DA

personnel exercise over it. Members or users, unlike employees of

NAFIs, are not considered government employees; the same is true of

family child care providers. However, claims arising out of the use of

some NAFI property or from the acts or omissions of family child care

providers may be payable from such funds under subpart K of this part

as a matter of policy, even when the user is not acting within the

scope of employment and the claim is not otherwise cognizable under any

of the other authorities described in this part.

(5) Prisoners of war and interned enemy aliens.

(6) Civilian employees of the District of Columbia ARNG, including

those paid under ``service contracts'' from District of Columbia funds.

(7) Civilians serving as ROTC instructors paid from Federal funds.

(8) ARNG technicians employed under 32 U.S.C. 709(a) for claims

accruing on or after January 1, 1969 (Pub. L. 90-486, August 13, 1968

(82 Stat. 755)), unless performing duties solely in pursuit of a

mission for a state, commonwealth, territory or possession.

(9) Persons acting in an official capacity for the DOD or DA either

temporarily or permanently with or without compensation, including but

not limited to the following:

(i) Dollar-a-year personnel.

(ii) Members of advisory committees, commissions, or boards.

(iii) Volunteers serving in an official capacity in furtherance of

the business of the United States, limited to those categories set

forth in DA Pam 27-162, paragraph 2-45.

Note to Sec. 536.23: See the parallel discussion at DA Pam 27-

162, paragraph 2-2.

Sec. 536.24 Delegation of investigative responsibility.

r-a-year personnel.

(ii) Members of advisory committees, commissions, or boards.

(iii) Volunteers serving in an official capacity in furtherance of

the business of the United States, limited to those categories set

forth in DA Pam 27-162, paragraph 2-45.

Note to Sec. 536.23: See the parallel discussion at DA Pam 27-

162, paragraph 2-2.

Sec. 536.24 Delegation of investigative responsibility.

(a) Area Claims Office. An ACO is authorized to carry out its

investigative responsibility as follows:

(1) At the request of the area claims authority, commanders and

heads of Army and DOD units, activities, or components will appoint a

commissioned, warrant, or noncommissioned officer or a qualified

civilian employee to investigate a claims incident in the manner set

forth in DA Pam 27-162 and this part. An ACO will direct such

investigation to the extent deemed necessary.

(2) CPOs are responsible for investigating claims incidents arising

out of the activities and operations of their command or agency. An ACO

may assign area jurisdiction to a CPO after coordination with the

appropriate commander to investigate claims incidents arising in the

ACO's designated geographic area. (See Sec. 536.3(f)).

(3) Claims incidents involving patients arising from treatment by a

health care provider in an Army medical treatment facility (MTF),

including providers defined in 536.23(b)(4)(ii), will be investigated

by a claims judge advocate (CJA), medical claims judge advocate (MCJA),

or claims attorney rather than by a unit claims officer.

(4) An ACO will publish and distribute a claims directive to all

DOD and Army installations and activities including active, Army

Reserve, and ARNG units as well as units located on the post at which

the ACO is located. The directive will outline each installation's and

activity's claims responsibilities. It will institute a serious claims

incident reporting system.

by a unit claims officer.

(4) An ACO will publish and distribute a claims directive to all

DOD and Army installations and activities including active, Army

Reserve, and ARNG units as well as units located on the post at which

the ACO is located. The directive will outline each installation's and

activity's claims responsibilities. It will institute a serious claims

incident reporting system.

(b) Command claims service responsibility. A command claims

service is responsible for the investigation and processing of claims

incidents arising in its geographic area of responsibility or for any

incidents within the authority of any foreign claims commission (FCC)

it appoints. This responsibility will be carried out by an ACO or a CPO

to the extent possible. A command claims service will publish a claims

directive outlining the geographic areas of claims investigative

responsibilities of each of its installations and activities, requiring

each ACO or CPO to report all serious claims incidents directly to the

Commander USARCS.

over all claims offices, providing guidance on specific cases

throughout the claims process, including the method of investigation.

Where indicated, USARCS may investigate a claims incident that normally

falls within a command claims service's, an ACO's, or a CPO's

jurisdiction. USARCS typically acts through an area action officer

(AAO) who is assigned as the primary point of contact with command

claims services, ACOs or CPOs within a given geographic area. In areas

outside the United States and its commonwealths, territories and

possessions, where there is no command claims service or ACO, USARCS is

responsible for investigation and for appointment of FCCs.

Note to Sec. 536.24: See the parallel discussion at DA Pam 27-

162, paragraph 2-3.

Sec. 536.25 Procedures for accepting claims.

claims services, ACOs or CPOs within a given geographic area. In areas

outside the United States and its commonwealths, territories and

possessions, where there is no command claims service or ACO, USARCS is

responsible for investigation and for appointment of FCCs.

Note to Sec. 536.24: See the parallel discussion at DA Pam 27-

162, paragraph 2-3.

Sec. 536.25 Procedures for accepting claims.

All ACOs and CPOs will institute procedures to ensure that

potential claimants or attorneys speak to a CJA, claims attorney,

investigator, or examiner. On initial contact, claims personnel will

render assistance, discuss all aspects of the potential claim, and

determine what statutes or procedures apply. Assistance will be

furnished to the extent set forth in DA Pam 27-162, paragraph 2-4. To

advise claimants on the correct remedy, claims personnel will

familiarize themselves with the remedies listed in DA Pam 27-162,

paragraphs 2-15 and 2-17.

Sec. 536.26 Identification of a proper claim.

(a) A claim is a writing that contains a sum certain for each

claimant and that is signed by each claimant, or by an authorized

representative, who must furnish written authority to sign on a

claimant's behalf. The writing must contain enough information to

permit investigation. The writing must be received not later than two

years from the date the claim accrues. A claim under the Foreign Claims

Act (FCA) may be presented orally to either the United States or the

government of the foreign country in which the incident occurred,

within two years, provided that it is reduced to writing not later than

three years from the date of accrual. A claim may be transmitted by

facsimile or telegram. However, a copy of an original claim must be

submitted as soon as possible.

(b) Where a claim is only for property damage and it is filed under

circumstances where there might be injuries, the CJA should inquire if

the claimant desires to split the claim as discussed in Sec. 536.60.

ting not later than

three years from the date of accrual. A claim may be transmitted by

facsimile or telegram. However, a copy of an original claim must be

submitted as soon as possible.

(b) Where a claim is only for property damage and it is filed under

circumstances where there might be injuries, the CJA should inquire if

the claimant desires to split the claim as discussed in Sec. 536.60.

(Claim for Damage, Injury, or Death). When the claim is not presented

on an SF 95, the claimant will be requested to complete an SF 95 to

ease investigation and processing.

(d) If a claim names two claimants and states only one sum certain,

the claimants will be requested to furnish a sum certain for each. A

separate sum certain must be obtained prior to payment under the

Federal Tort Claims Act (FTCA), Military Claims Act (MCA), National

Guard Claims Act (NGCA) or the FCA. The Financial Management Service

will only pay an amount above the threshold amount of $2,500 for the

FTCA, or $100,000 for the other statutes.

(e) A properly filed claim meeting the definition of ``claim'' in

paragraph (a) of this section tolls the two-year statute of limitations

(SOL) even though the documents required to substantiate the claim are

not present, such as those listed on the back of an SF 95 or in the

Attorney General's regulations implementing the FTCA, 28 CFR 14.1-

14.11. However, refusal to provide such documents may lead to dismissal

of a subsequent suit under the FTCA or denial of a claim under other

subparts of this part.

(f) Receipt of a claim by another federal agency does not toll the

SOL. Receipt of a U.S. Army claim by DOD, Navy, or Air Force does toll

the SOL.

SF 95 or in the

Attorney General's regulations implementing the FTCA, 28 CFR 14.1-

14.11. However, refusal to provide such documents may lead to dismissal

of a subsequent suit under the FTCA or denial of a claim under other

subparts of this part.

(f) Receipt of a claim by another federal agency does not toll the

SOL. Receipt of a U.S. Army claim by DOD, Navy, or Air Force does toll

the SOL.

(g) The guidelines set forth in federal FTCA case law will apply to

other subparts of this part in determining whether a proper claim was

filed.

Note to Sec. 536.26: See the parallel discussion at DA Pam 27-

162, paragraph 2-5.

Sec. 536.27 Identification of a proper claimant.

The following are proper claimants:

(a) Claims for property loss or damage. A claim may be presented by

the owner of the property or by a duly authorized agent or legal

representative in the owner's name. As used in this part, the term

``owner'' includes the following:

(1) For real property. The mortgagor, mortgagee, executor,

administrator, or personal representative, if he or she may maintain a

cause of action in the local courts involving a tort to the specific

property, is a proper claimant. When notice of divided interests in

real property is received, the claim should if feasible be treated as a

single claim and a release from all interests must be obtained. This

includes both the owner and tenant where both claim.

(2) For personal property. A claim may be presented by a bailee,

lessee, mortgagee, conditional vendor, or others holding title for

purposes of security only, unless specifically prohibited by the

applicable subpart. When notice of divided interests in personal

property is received, the claim should if feasible be treated as a

single claim; a release from all interests must be obtained. Property

loss is defined as loss of actual tangible property, not consequential

damage resulting from such loss.

thers holding title for

purposes of security only, unless specifically prohibited by the

applicable subpart. When notice of divided interests in personal

property is received, the claim should if feasible be treated as a

single claim; a release from all interests must be obtained. Property

loss is defined as loss of actual tangible property, not consequential

damage resulting from such loss.

(b) Claims for personal injury or wrongful death. (1) For personal

injury. A claim may be presented by the injured person or by a duly

authorized agent or legal representative or, where the claimant is a

minor, by a parent or a person in loco parentis. However, determine

whether the claimant is a proper claimant under applicable state law

or, if considered under the MCA, under Sec. 536.77. If not, the

claimant should be so informed in the acknowledgment letter and

requested to withdraw the claim. If not withdrawn, deny the claim

without delay. An example is a claim filed on behalf of a minor for

loss of consortium for injury to a parent where not permitted by state

law. Personal injury claims deriving from the principal injury may be

presented by other parties. A claim may not be presented by a

``volunteer,'' meaning one who has no legal or contractual obligation,

yet voluntarily pays damages on behalf of an injured party and then

seeks reimbursement for their economic damages by filing a claim. See

paragraph (f)(3) of this section.

permitted by state

law. Personal injury claims deriving from the principal injury may be

presented by other parties. A claim may not be presented by a

``volunteer,'' meaning one who has no legal or contractual obligation,

yet voluntarily pays damages on behalf of an injured party and then

seeks reimbursement for their economic damages by filing a claim. See

paragraph (f)(3) of this section.

(2) For wrongful death. A claim may be presented by the executor or

administrator of the deceased's estate, or by any person determined to

be legally or beneficially entitled under applicable local law. The

amount allowed will be apportioned, to the extent practicable, among

the beneficiaries in accordance with the law applicable to the

incident. Under the MCA (subpart C of this part), only one wrongful

death claim is authorized (see Sec. 536.77(c)(1)(i)). Under

subparts D and H of this part, a claim by the insured for property

damage may be considered as a claim by the insurer as the real party in

interest provided the insured has been reimbursed by the insurer and

the insurance information is listed on the SF 95. The insurer should be

required to file a separate SF 95 for payment purposes even though the

SOL has expired. Where the insurance information is not listed on the

SF 95 and the insured is paid by the United States, the payment of the

insurer is the responsibility of the insured even though the insurer

subsequently files a timely claim. To avoid this situation, always

inquire as to the status of any insurance prior to payment of a

property damage claim.

yment purposes even though the

SOL has expired. Where the insurance information is not listed on the

SF 95 and the insured is paid by the United States, the payment of the

insurer is the responsibility of the insured even though the insurer

subsequently files a timely claim. To avoid this situation, always

inquire as to the status of any insurance prior to payment of a

property damage claim.

legal representative who presents a claim will do so in the claimant's

name and sign the form in such a way that indicates the agent's or

legal representative's title or capacity. When a claim is presented by

an agent or legal representative:

(1) It must contain written evidence of the agent's or legal

representative's authority to sign, such as a power of attorney, or

(2) It must refer to or cite the statute granting authority.

(d) Subrogation. A claim may be presented by the subrogee in his or

her own name if authorized by the law of the place where the incident

giving rise to the claim occurred, under subpart D or H of this part

only. A lienholder is not a proper claimant and should be distinguished

from a subrogee to avoid violation of the Antiassignment Act. See

paragraph (f) of this section. However, liens arising under Medicare

will be processed directly with the Center for Medicare and Medicaid

Systems. See DA Pam 27-162, paragraphs 2-57g and h and 2-58.

(e) Contribution or indemnity. A claim may be filed for

contribution or indemnification by the party who was held liable as a

joint tortfeasor where authorized by state law. Such a claim is not

perfected until payment has been made by the claimant/joint tortfeasor.

A claim filed for contribution prior to payment being made should be

considered as an opportunity to share a settlement where the United

States is liable.

ity. A claim may be filed for

contribution or indemnification by the party who was held liable as a

joint tortfeasor where authorized by state law. Such a claim is not

perfected until payment has been made by the claimant/joint tortfeasor.

A claim filed for contribution prior to payment being made should be

considered as an opportunity to share a settlement where the United

States is liable.

(f) Transfer or assignment. (1) Under the Antiassignment Act (31

U.S.C. 3727) and Defense Finance and Accounting Service--Indianapolis

(DFAS-IN) regulation 37-1, a transfer or assignment is null and void

except where it occurs by operation of law or after a voucher for the

payment has been issued. The following are null and void:

(i) Every purported transfer or assignment of a claim against the

United States, or any interest, in whole or in part, on a claim,

whether absolute or conditional; and

(ii) Every power of attorney or other purported authority to

receive payment for all or part of any such claim.

(2) The Antiassignment Act was enacted to eliminate multiple

payment of claims, to cause the United States to deal only with

original parties and to prevent persons of influence from purchasing

claims against the United States.

(3) In general, this statute prohibits voluntary assignments of

claims, with the exception of transfers or assignments made by

operation of law. The operation of law exception has been held to apply

to claims passing to assignees because of bankruptcy proceedings,

assignments for the benefit of creditors, corporate liquidations,

consolidations, or reorganizations, and where title passes by operation

of law to heirs or legatees. Subrogated claims that arise under a

statute are not barred by the Antiassignment Act. For example,

subrogated workers' compensation claims are cognizable when presented

by the insurer under subpart D or H of this part, but not other

subparts.

the benefit of creditors, corporate liquidations,

consolidations, or reorganizations, and where title passes by operation

of law to heirs or legatees. Subrogated claims that arise under a

statute are not barred by the Antiassignment Act. For example,

subrogated workers' compensation claims are cognizable when presented

by the insurer under subpart D or H of this part, but not other

subparts.

(4) Subrogated claims that arise pursuant to contractual provisions

may be paid to the subrogee, if the legal basis for the subrogated

claim is recognized by state statute or case law, only under subpart D

or H of this part. For example, an insurer that issues an insurance

policy becomes subrogated to the rights of a claimant who receives

payment of a property damage claim. Generally, such subrogated claims

are authorized by state law and are therefore not barred by the

Antiassignment Act.

(5) Before claims are paid, it is necessary to determine whether

there may be a valid subrogated claim under a federal or state statute

or a subrogation contract held valid by state law.

(g) Interdepartmental waiver rule. Neither the U.S. government nor

any of its instrumentalities are proper claimants due to the

interdepartmental waiver rule. This rule bars claims by any

organization or activity of the Army, whether or not the organization

or activity is funded with appropriated or nonappropriated funds.

Certain federal agencies are authorized by statute to file claims, for

example, Medicare and the Railroad Retirement Commission. See DA Pam

27-162, paragraph 2-17f.

s are proper claimants due to the

interdepartmental waiver rule. This rule bars claims by any

organization or activity of the Army, whether or not the organization

or activity is funded with appropriated or nonappropriated funds.

Certain federal agencies are authorized by statute to file claims, for

example, Medicare and the Railroad Retirement Commission. See DA Pam

27-162, paragraph 2-17f.

(h) States are excluded. If a state, U.S. commonwealth, territory,

or the District of Columbia maintains a unit to which ARNG personnel

causing the injury or damage are assigned, such governmental entity is

not a proper claimant for loss or damage to its property. A unit of

local government other than a state, commonwealth, or territory is a

proper claimant.

Note to Sec. 536.27: See the parallel discussion at DA Pam 27-

162, paragraph 2-6.

Sec. 536.28 Claims acknowledgment.

Claims personnel will acknowledge all claims immediately upon

receipt, in writing, by telephone, or in person. A defective claim will

be acknowledged in writing, pointing out its defects. Where the defects

render the submission jurisdictionally deficient based on the

requirements discussed in DA Pam 27-162, paragraphs 2-5 and 2-6, the

claimant or attorney will be informed in writing of the need to present

a proper claim no later than two years from the date of accrual. Suit

must be filed in maritime claims not later than two years from the date

of accrual. See Sec. 536.122. In any claim for personal injury or

wrongful death, an authorization signed by the patient, natural or

legal guardian or estate representative will be obtained authorizing

the use of medical information, including medical records, in order to

use sources other than claims personnel to evaluate the claim as

required by the Health Care Portability and Accountability Act (HIPAA),

42 U.S.C. 1320d-1320d-8. See the parallel discussion at DA Pam 27-162,

paragraph 2-7.

Sec. 536.29 Revision of filed claims.

guardian or estate representative will be obtained authorizing

the use of medical information, including medical records, in order to

use sources other than claims personnel to evaluate the claim as

required by the Health Care Portability and Accountability Act (HIPAA),

42 U.S.C. 1320d-1320d-8. See the parallel discussion at DA Pam 27-162,

paragraph 2-7.

Sec. 536.29 Revision of filed claims.

(a) General. A revision or change of a previously filed claim may

constitute an amendment or a new claim. Upon receipt, the CJA must

determine whether a new claim has been filed. If so, the claim must be

logged with a new number and acknowledged in accordance with Sec.

536.27.

(b) New claim. A new claim is filed whenever the writing alleges a

new theory of liability, a new tortfeasor, a new party claimant, a

different date or location for the claims incident, or other basic

element that constitutes an allegation of a different tort not

originally alleged. If the allegation is made verbally or by e-mail,

the claimant will be informed in writing that a new SF 95 must be

filed. A new claim must be filed not later than two years from the

accrual date under the FTCA. Filing a new claim creates an additional

six month period during which suit may not be filed.

constitutes an amendment, not a new claim. Similarly, the addition of

required information not on the original claim constitutes an

amendment. Examples are date of birth, marital status, military status,

names of witnesses, claimant's address, description, or location of

property or insurance information. An amendment may be filed before or

after the two year SOL has run unless final action has been taken. A

new number will not be assigned to an amended claim; however, a change

in the amount will be annotated in the database.

Note to Sec. 536.29: See the parallel discussion at DA Pam 27-

162, paragraph 2-8.

Sec. 536.30 Action upon receipt of claim.

ation of

property or insurance information. An amendment may be filed before or

after the two year SOL has run unless final action has been taken. A

new number will not be assigned to an amended claim; however, a change

in the amount will be annotated in the database.

Note to Sec. 536.29: See the parallel discussion at DA Pam 27-

162, paragraph 2-8.

Sec. 536.30 Action upon receipt of claim.

(a) A properly filed claim stops the running of the SOL when it is

received by any organization or activity of the DOD or the U.S. Armed

Services. Placing a claim in the mail does not constitute filing. The

first Army claims office that receives the claim will date, time stamp,

and initial the claim as of the date the claim was initially received

``on post,'' not by the claims office. If initially received close to

the SOL's expiration date by an organization or activity that does not

have a claims office, claims personnel will discover and record in the

file the date of original receipt.

(b) The ACO or CPO that first receives the claim will enter the

claim into the Tort and Special Claims Application (TSCA) database and

let the system assign a number to the claim. The claim, whether on an

SF 95 or in any other format, shall be scanned into a computer and

uploaded onto the TSCA database so that it will become a permanent part

of the electronic record. A joint claim will be given a number for each

claimant, for example, husband and wife, injured parent and children.

If only one sum is filed for all claimants, the same sum will be

assigned for each claimant. However, request the claimant to name a sum

for each claimant. The claim will bear this number throughout the

claims process. Upon transfer, a new number will not be assigned by the

receiving office. If a claim does not meet the definition of a proper

claim under Sec. Sec. 536.26 and 536.27, it will be date stamped and

logged as a Potentially Compensable Event (PCE).

signed for each claimant. However, request the claimant to name a sum

for each claimant. The claim will bear this number throughout the

claims process. Upon transfer, a new number will not be assigned by the

receiving office. If a claim does not meet the definition of a proper

claim under Sec. Sec. 536.26 and 536.27, it will be date stamped and

logged as a Potentially Compensable Event (PCE).

another ACO's geographic area; the receiving ACO will use the claims

number originally assigned.

(d) Non-Appropriated Fund Instrumentality (NAFI) claims that relate

to claims determined cognizable under subpart K of this part will be

marked with the symbol ``NAFI'' immediately following the claimant's

name, to preclude erroneous payment from appropriated funds (APF). This

symbol will also be included in the subject line of all correspondence.

(e) Upon receipt, copies of the claims will be furnished as follows

(when a current e-mail address is available and it is agreeable with

the receiving party, providing copies by e-mail is acceptable):

(1) To USARCS, if the amount claimed exceeds $25,000, or $50,000

per incident. However, if the claim arises under the FTCA or AMCSA,

only furnish copies if the amount claimed exceeds $50,000, or $100,000

per incident.

(2) For medical malpractice claims, to the appropriate MTF

Commander/s through MEDCOM Headquarters, and to the Armed Forces

Institute of Pathology at the addresses listed below.

MEDCOM, ATTN: MCHO-CL-Q, 2050 Worth Road, Suite 26, Fort Sam

Houston, Texas 78234-5026.

Department of Legal Medicine, Armed Forces Institute of

Pathology, 1335 E. West Highway, 6-100, Silver Spring, MD

20910-6254, Commercial: 301-295-8115, E-Mail: [email protected].

(3) If the claim is against AAFES forward a copy to: HQ Army and

Air Force Exchange Service (AAFES), ATTN: Office of the General Counsel

(GC-Z), P.O. Box 650062, Dallas, TX 75265-0062, E-Mail:

[email protected].

Department of Legal Medicine, Armed Forces Institute of

Pathology, 1335 E. West Highway, 6-100, Silver Spring, MD

20910-6254, Commercial: 301-295-8115, E-Mail: [email protected].

(3) If the claim is against AAFES forward a copy to: HQ Army and

Air Force Exchange Service (AAFES), ATTN: Office of the General Counsel

(GC-Z), P.O. Box 650062, Dallas, TX 75265-0062, E-Mail:

[email protected].

(4) If the claim involves a NAFI, including a recreational user or

family child care provider forward a copy to: Army Central Insurance

Fund, ATTN: CFSC-FM-I, 4700 King Street, Alexandria, VA 22302-4406, E-

Mail: [email protected].

(f) ACOs or CPOs will furnish a copy of any medical or dental

malpractice claim to the MTF or dental treatment facility commander and

advise the commander of all subsequent actions. The commander will be

assisted in his or her responsibility to complete DD Form 2526 (Case

Abstract for Malpractice Claims).

Note to Sec. 536.30: See the parallel discussion at DA Pam 27-

162, paragraph 2-9.

Sec. 536.31 Opening claim files.

A claim file will be opened when:

(a) Information that requires investigation under Sec. 536.23 is

received.

(b) Records or other documents are requested by a potential

claimant or legal representative.

Note to Sec. 536.31: See the parallel discussion at DA Pam 27-

162, paragraph 2-10.

Sec. 536.32 Transfer of claims among armed services branches.

pening claim files.

A claim file will be opened when:

(a) Information that requires investigation under Sec. 536.23 is

received.

(b) Records or other documents are requested by a potential

claimant or legal representative.

Note to Sec. 536.31: See the parallel discussion at DA Pam 27-

162, paragraph 2-10.

Sec. 536.32 Transfer of claims among armed services branches.

(a) Claims filed with the wrong federal agency, or claims that

should be adjudicated by receiving State offices under NATO or other

SOFA, will be immediately transferred to the proper agency together

with notice of same to the claimant or legal representative. Where

multiple federal agencies are involved, other agencies will be

contacted and a lead agency established to take all actions on the

claim. Where the DA is the lead agency, any final action will include

other agencies. Similarly, where another agency is the lead agency,

that agency will be requested to include DA in any final action. Such

inclusion will prevent multiple dates for filing suit or appeal.

(b) If another agency has taken denial action on a claim that

involves the DA, without informing the DA, and in which the DA desires

to make a payment, the denial action may be reconsidered by the DA not

later than six months from the date of mailing and payment made

thereafter.

Note to Sec. 536.32: See also Sec. Sec. 536.17 and 536.18; AR

27-20, paragraph 13-2; and the parallel and related discussion of

this topic at DA Pam 27-162, paragraphs 1-19, 1-20, 2-13 and 13-2.

Sec. 536.33 Use of small claims procedures.

Small claims procedures are authorized for use whenever a claim may

be settled for $5,000 or less. These procedures are designed to save

processing time and eliminate the need for most of the documentation

otherwise required. These procedures are described in DA Pam 27-162,

paragraphs 2-14 and 2-26.

Sec. 536.34 Determination of correct statute.

Sec. 536.33 Use of small claims procedures.

Small claims procedures are authorized for use whenever a claim may

be settled for $5,000 or less. These procedures are designed to save

processing time and eliminate the need for most of the documentation

otherwise required. These procedures are described in DA Pam 27-162,

paragraphs 2-14 and 2-26.

Sec. 536.34 Determination of correct statute.

(a) Consideration under more than one statute. When Congress

enacted the various claims statutes, it intended to allow federal

agencies to settle meritorious claims. A claim must be considered under

other statutes in this part unless one particular statute precludes the

use of other statutes, whether the claim is filed on DD Form 1842

(Claim for Loss of or Damage to Personal Property Incident to Service)

or SF 95. Prior to denial of an AR 27-20, chapter 11 claim, consider

whether it may fall within the scope of subparts C, D, or F of this

part, and where indicated, question the claimant to determine whether

the claim sounds in tort.

(b) Exclusiveness of certain remedies. Certain remedies exclude all

others. For

example, the Court of Federal Claims has exclusive jurisdiction over

U.S. Constitution Fifth Amendment takings, express or implied-in-fact,

as well as governmental contract losses, or intangible property losses.

Claims of this nature for $10,000 or less may be filed in a U.S.

District Court. There is no administrative remedy. While the FTCA is

the preemptive tort remedy in the United States, its commonwealths,

territories and possessions, nevertheless, other remedies must be

exhausted prior to favorable consideration under the FTCA. The FTCA

does not preclude use of the MCA or the NGCA for claims arising out of

noncombat activities or brought by soldiers for incident-to-service

property losses sustained within the United States

the preemptive tort remedy in the United States, its commonwealths,

territories and possessions, nevertheless, other remedies must be

exhausted prior to favorable consideration under the FTCA. The FTCA

does not preclude use of the MCA or the NGCA for claims arising out of

noncombat activities or brought by soldiers for incident-to-service

property losses sustained within the United States. See DA Pam 27-162,

paragraphs 2-15a and b for a more detailed discussion of determining

the correct statute for property claims versus personal injury and

death claims. In addition, it is important to consider the nature of

the claim, e.g., whether the claim may be medical malpractice in

nature, related to postal matter, or an automobile accident.

Discussions of these and many other different types of claims are also

provided herein as well as in the corresponding paragraph 2-15 of DA

Pam 27-162. It is also very important to consider when a claim may fall

outside the jurisdiction of the Army claims system. Some of these

instances are alluded to immediately above, but for a detailed

discussion of related remedies see Sec. 536.36 of this part and

paragraph 2-17 of DA Pam 27-162.

the performance of official duties in a foreign country where the

United States is the sending State must be filed and processed under a

SOFA, provided that the claimant is a proper party claimant under the

SOFA. DA Pam 27-162, paragraph 2-15c sets forth the rules applicable in

particular countries. A SOFA provides an exclusive remedy subject to

waiver as set forth in Sec. 536.76(h) of this part.

performance of official duties in a foreign country where the

United States is the sending State must be filed and processed under a

SOFA, provided that the claimant is a proper party claimant under the

SOFA. DA Pam 27-162, paragraph 2-15c sets forth the rules applicable in

particular countries. A SOFA provides an exclusive remedy subject to

waiver as set forth in Sec. 536.76(h) of this part.

(2) Single-service jurisdiction is established for all foreign

countries in which a SOFA is in effect and for certain other countries.

A list of these countries is posted on the USARCS Web site; for the

address see Sec. 536.2(a). Claims will be processed by the service

exercising single-service responsibility. In the United States, USARCS

is the receiving State office and all SOFA claims should be forwarded

immediately to USARCS for action. Appropriate investigation under

subpart B of this part procedures is required of an ACO or a CPO under

USARCS' direction.

(d) Foreign Claims Act claims. (1) Claims by foreign inhabitants,

arising in a foreign country, which are not cognizable under a SOFA,

fall exclusively under the FCA. The determination as to whether a

claimant is a foreign inhabitant is governed by the rules set out in

subpart C and subpart J of this part. In case of doubt, this

determination must be based on information obtained from the claimant

and others, particularly where the claimant is a former U.S. service

member or a U.S. citizen residing in a foreign country.

FA,

fall exclusively under the FCA. The determination as to whether a

claimant is a foreign inhabitant is governed by the rules set out in

subpart C and subpart J of this part. In case of doubt, this

determination must be based on information obtained from the claimant

and others, particularly where the claimant is a former U.S. service

member or a U.S. citizen residing in a foreign country.

(2) Tort claims will be processed by the armed service that

exercises single-service responsibility. When requested, the Commander

USARCS may furnish a Judge Advocate or civilian attorney to serve as a

Foreign Claims Commission (FCC) for another service. With the

concurrence of the Commander USARCS, Army JAs may be appointed as

members of another department's foreign claims commissions. See Subpart

J of this part. The FCA permits compensation for damages caused by

``out-of-scope'' tortious conduct of Soldier and civilian employees.

Many of these claims are also compensable under Article 139, Uniform

Code of Military Justice. See DA Pam 27-162, chap. 9. To avoid the

double payment of claims, ACOs and CPOs must promptly notify the

Command Claims Service of each approved Article 139 claim involving a

claimant who could also file under an applicable SOFA.

(e) National Guard Claims Act claims. (1) Claims attributed to the

acts or omissions of ARNG personnel in the course of employment fall

into the categories set forth in subpart F of this part.

(2) An ACO will establish with a state claims office routine

procedures for the disposition of claims, designed to ensure that the

United States and state authorities do not issue conflicting

instructions for processing claims. The procedures will require

personnel to advise the claimant of any remedy against the state or its

insurer.

into the categories set forth in subpart F of this part.

(2) An ACO will establish with a state claims office routine

procedures for the disposition of claims, designed to ensure that the

United States and state authorities do not issue conflicting

instructions for processing claims. The procedures will require

personnel to advise the claimant of any remedy against the state or its

insurer.

(i) Where the claim arises out of the act or omission of a member

of the ARNG or a person employed under 32 U.S.C. 709, it must be

determined whether the employee is acting on behalf of the state or the

United States. For example, an ARNG pilot employed under section 709

may be flying on a state mission, federal mission, or both, on the same

trip. This determination will control the disposition of the claim. If

agreement with the concerned state cannot be reached and the claim is

otherwise payable, efforts may be made to enter into a sharing

agreement with the state concerned. The following procedures are

required in the event there is a remedy against the state and the state

refuses to pay or the state maintains insurance coverage and the

claimant has filed an administrative claim against the United States.

First, forward the file and the tort claim memorandum, including

information on the status of any judicial or administrative action the

claimant has taken against the state or its insurer to the Commander

USARCS. Upon receipt, the Commander USARCS will determine whether to

require the claimant to exhaust his or her remedy against the state or

its insurer or whether the claim against the United States can be

settled without requiring such exhaustion. If the Commander USARCS

decides to follow the latter course of action, he or she will also

determine whether to obtain an assignment of the claim against the

state or its insurer and whether to initiate recovery action to obtain

contribution or indemnification

edy against the state or

its insurer or whether the claim against the United States can be

settled without requiring such exhaustion. If the Commander USARCS

decides to follow the latter course of action, he or she will also

determine whether to obtain an assignment of the claim against the

state or its insurer and whether to initiate recovery action to obtain

contribution or indemnification. The state or its insurer will be given

appropriate notification in accordance with state law.

(ii) If an administrative claim remedy exists under state law or

the state maintains liability insurance, the Commander USARCS or an ACO

acting upon the Commander USARCS' approval may enter into a sharing

agreement covering payment of future claims. The purpose of such an

agreement is to determine in advance whether the state or the DA is

responsible for processing a claim (did the claim arise from a federal

or state mission?), to expedite payment in meritorious claims, and to

preclude double recovery by a claimant.

(f) Third-party claims involving an independent contractor.

(1) Generally. (i) Upon receipt, all claims will be examined to

determine whether a contractor of the United States is the tortfeasor.

If so, the claimant or legal representative will be notified of the

name and address of the contractor and further advised that the United

States is not responsible for the acts or omissions of an independent

contractor. This will be done prior to any determination as to the

contractor's degree of culpability as compared to that of the United

States.

(ii) If, upon investigation, the damage is considered to be

primarily due to the contractor's fault or negligence, the claim will

be referred to the contractor or the contractor's insurance carrier for

settlement and the claimant will be so advised.

contractor. This will be done prior to any determination as to the

contractor's degree of culpability as compared to that of the United

States.

(ii) If, upon investigation, the damage is considered to be

primarily due to the contractor's fault or negligence, the claim will

be referred to the contractor or the contractor's insurance carrier for

settlement and the claimant will be so advised.

(iii) Health care providers hired under personal services contracts

under the provisions of 10 U.S.C. 1089 are not considered to be

independent contractors but employees of the United States for tort

claims purposes.

(2) Claims for injury or death of contractor employees. Upon

receipt of a claim for injury or death of a contractor employee, a copy

of the portions of the contract applicable to claims and workers'

compensation will be obtained, either through the contracting office or

from the contractor. Claims personnel must find out the status of any

claim for workers' compensation benefits as well as whether the United

States paid the premiums. The goal is to involve the contractor in any

settlement, where indicated, in the manner set forth in DA Pam 27-162,

paragraphs 2-15f and 2-61. In claims arising in foreign countries

consider whether the claim is covered by the Defense Bases Act, 42

U.S.C. 1651-1654.

(g) Claims by contractors for damage to or loss of their property

during the performance of their contracts. Claims by contractors for

property damage or loss should be referred to the contracting officer

for determination as to whether the claim is payable under the

contract. Such a claim is not payable under the FTCA where the damage

results from an in-scope act or omission. Contract appeal procedures

must be exhausted prior to consideration as a bailment under the MCA or

FCA.

of their contracts. Claims by contractors for

property damage or loss should be referred to the contracting officer

for determination as to whether the claim is payable under the

contract. Such a claim is not payable under the FTCA where the damage

results from an in-scope act or omission. Contract appeal procedures

must be exhausted prior to consideration as a bailment under the MCA or

FCA.

(h) Maritime claims. Maritime torts are excluded from consideration

under the FTCA. The various maritime statutes are exclusive remedies

within the United States and its territorial waters. Maritime statutes

include the Army Maritime Claims Settlement Act (AMCSA), 10 U.S.C.

4801, 4802 and 4806, the Suits in Admiralty Act (SIAA), 46 U.S.C. app.

781-790, the Public Vessels Act (PVA), 46 U.S.C. app. 781-790, and the

Admiralty Extension Act (AEA), 46 U.S.C. app. 740. Within the U.S. and

its territorial waters, maritime suits may be filed under the SIAA or

the PVA without first filing an administrative claim, except where

administrative filing is required by the AEA. Administrative claims may

also be filed under the AMSCA. In any administrative claim brought

under the AMCSA, all action must be completed not later than two years

from its accrual date or the SOL will expire. Outside the United

States, a maritime tort may be brought under the MCA or FCA as well as

the AMCSA. The body of water on which it occurs must be navigable and a

maritime nexus must exist. Once a maritime claim is identified, give

the claimant written notice of the two-year filing requirement. In case

of doubt, the ACO or CPO should discuss the matter with the appropriate

AAO. Even when the claimant does not believe that a maritime claim is

involved, provide the claimant with precautionary notice. See DA Pam

27-162, paragraphs 2-7e and 8-6.

ble and a

maritime nexus must exist. Once a maritime claim is identified, give

the claimant written notice of the two-year filing requirement. In case

of doubt, the ACO or CPO should discuss the matter with the appropriate

AAO. Even when the claimant does not believe that a maritime claim is

involved, provide the claimant with precautionary notice. See DA Pam

27-162, paragraphs 2-7e and 8-6.

(i) Postal claims. See also DA Pam 27-162, paragraphs 2-15i, 2-30

and 2-56g discussing postal claims.

(1) Claims by the U.S. Postal Service for funds and stock are

adjudicated by USARCS with assistance from the Military Postal Service

Agency and the ACO or CPO having jurisdiction over the particular Army

post office, when directed by USARCS to assist in the investigation of

the claim.

(2) Claims for loss of registered and insured mail are processed

under subpart C of this part by the ACO or CPO having jurisdiction over

the particular Army post office.

(3) Claims for loss of, or damage to, parcels delivered by United

Parcel Service (UPS) are the responsibility of UPS.

(j) Blast damage claims. After completing an investigation and

prior to final action, all blast damage claims resulting from Army

firing and demolition activities must be forwarded to the Commander

USARCS for technical review. The sole exception to this rule is when a

similar claim is filed citing the same time, place and type of damage

as one which has already received technical review. See also DA Pam 27-

162, paragraph 2-28.

eting an investigation and

prior to final action, all blast damage claims resulting from Army

firing and demolition activities must be forwarded to the Commander

USARCS for technical review. The sole exception to this rule is when a

similar claim is filed citing the same time, place and type of damage

as one which has already received technical review. See also DA Pam 27-

162, paragraph 2-28.

(k) Motor vehicle damage claims arising from the use of non-

governmental vehicles. See also Sec. 536.60 (splitting property damage

and personal injury claims) and DA Pam 27-162, paragraphs 2-15k

(determining the correct statute), 2-61 (joint tortfeasors), and 2-62e

(indemnity or contribution).

(1) Government tortfeasors. A Soldier or U.S. government civilian

employee who negligently damages his or her personal property while

acting within the scope of employment is not a proper claimant for

damage to that property.

(2) Claims by lessors for damage to rental vehicles. Third-party

claims arising from the use of rental vehicles will be processed in the

same manner as NAFI commercially insured activities after exhaustion of

any other remedy under the Government Travel Card Program or the

Surface Deployment and Distribution Command Car Rental Agreement.

(3) Third-party damages arising from the use of privately owned

vehicles. Third-party tort claims arising within the United States from

a Soldier's use of a privately owned vehicle (POV) while allegedly

within the scope of employment must be forwarded to the Commander

USARCS for review and consultation before final action. The claim will

be investigated and any authorization for use ascertained including

payment for mileage. A copy of the Soldier's POV insurance policy will

be obtained prior to forwarding. If the DA is an additional insurer

under applicable state law, the claim will be forwarded to the

Soldier's liability carrier for payment. When the tort claim arises in

a foreign country, follow the provisions of Subpart J of this part.

ed and any authorization for use ascertained including

payment for mileage. A copy of the Soldier's POV insurance policy will

be obtained prior to forwarding. If the DA is an additional insurer

under applicable state law, the claim will be forwarded to the

Soldier's liability carrier for payment. When the tort claim arises in

a foreign country, follow the provisions of Subpart J of this part.

(l) Claims arising from gratuitous use of DOD or Army vehicles,

equipment or facilities. (1) Before the commencement of any event that

involves the use of DOD or Army land, vehicles, equipment or Army

personnel for community activities, the Command involved should be

advised to first determine and weigh the risk to potential third-party

claimants against the benefits to the DOD or the Army. Where such risk

is excessive, try to obtain an agreement from the sponsoring civilian

organization holding the Army harmless. When feasible, third-party

liability insurance may be required from the sponsor and the United

States added to the policy as a third-party insured.

(2) When Army equipment and personnel are used for debris removal

relief pursuant to the Federal Disaster Relief Act, 42 U.S.C. 5173, the

state is required to assume responsibility for third-party claims. The

senior judge advocate for a task force engaged in such relief should

obtain an agreement requiring the state to hold the Army harmless and

establish a procedure for payment by the state. Claims will be

received, entered into the TSCA database, investigated and forwarded to

state authorities for action.

42 U.S.C. 5173, the

state is required to assume responsibility for third-party claims. The

senior judge advocate for a task force engaged in such relief should

obtain an agreement requiring the state to hold the Army harmless and

establish a procedure for payment by the state. Claims will be

received, entered into the TSCA database, investigated and forwarded to

state authorities for action.

(m) Real estate claims. Claims for rent, damage, or other payments

involving the acquisition, use, possession or disposition of real

property or interests therein, are generally payable under AR 405-15.

These claims are handled by the Real Estate Claims Office in the

appropriate COE District or a special office created for a deployment.

Directorate of Real Estate, Office of the Chief of Engineers, has

supervisory authority. Claims for damage to real property and

incidental personal property, but not for rent (for example, claims

arising during a maneuver or deployment) may be payable under subparts

C or J of this part. However, priority should be given to the use of AR

405-15 as it is more flexible and expeditious. In contingency

operations and deployments, there is a large potential for overlap

between

contractual property damage claims and noncombat activity/maneuver

claims. Investigate carefully to ensure the claim is in the proper

channel (claims or real estate), that it is fairly settled, and that

the claimant does not receive a double payment. For additional

guidance, see subpart J of this part and United States Army Claims

Service Europe (USACSEUR) Real Estate/Office of the Judge Advocate

Standard Operating Procedures for Processing Claims Involving Real

Estate During Contingency Operations (August 20, 2002).

roper

channel (claims or real estate), that it is fairly settled, and that

the claimant does not receive a double payment. For additional

guidance, see subpart J of this part and United States Army Claims

Service Europe (USACSEUR) Real Estate/Office of the Judge Advocate

Standard Operating Procedures for Processing Claims Involving Real

Estate During Contingency Operations (August 20, 2002).

(n) Claims generated by civil works projects. Civil works projects

claims arising from tortious activities are defined by whether the

negligent or wrongful act or omission arising from a project or

activity is funded by a civil works appropriation. Civil works claims

are those noncontractual claims which arise from a negligent or

wrongful act or omission during the performance of a project or

activity funded by civil works appropriations as distinguished from a

project or activity funded by Army operation and maintenance funds.

Civil works claims are paid out of civil works appropriations to the

extent set forth in Sec. 536.71(f). A civil works claim can also arise

out of a noncombat activity, for example, an inverse condemnation claim

in which flooding exceeds the high water mark. Maritime claims under

subpart H of this part are civil works claims when they arise out of

the operation of a dam, locks or navigational aid.

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

paragraph 2-1.

Sec. 536.35 Unique issues related to environmental claims.

of a noncombat activity, for example, an inverse condemnation claim

in which flooding exceeds the high water mark. Maritime claims under

subpart H of this part are civil works claims when they arise out of

the operation of a dam, locks or navigational aid.

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

paragraph 2-1.

Sec. 536.35 Unique issues related to environmental claims.

Claims for property damage, personal injury, or death arising in

the United States based on contamination by toxic substances found in

the air or the ground must be reported by USARCS to the Environmental

Law Division of the Army Litigation Center and the Environmental Torts

Branch of DOJ. Such claims arising overseas must be reported to the

Command Claims Service with geographical jurisdiction over the claim

and USARCS. Claims for personal injury from contamination frequently

arise at an area that is the subject of claims for cleanup of the

contamination site. The cleanup claims involve other Army agencies, use

of separate funds, and prolonged investigation. Administrative

settlement is not usually feasible because settlement of property

damage claims must cover all damages, including personal injury.

Payment by Defense Environmental Rehabilitation Funds should be

considered initially and any such payment should be deducted from any

settlement under AR 27-20.

Sec. 536.36 Related remedies.

An ACO or a CPO routinely receives claims or inquiries about claims

that clearly are not cognizable under this part. It is the DA's policy

that every effort be made to discover another remedy and inform the

inquirer as to its nature. Claims personnel will familiarize themselves

with the remedies set forth in DA Pam 27-162, paragraph 2-17, to carry

out this policy. If no appropriate remedy can be discovered, forward

the file to the Commander USARCS, with recommendations.

Sec. 536.37 Importance of the claims investigation.

policy

that every effort be made to discover another remedy and inform the

inquirer as to its nature. Claims personnel will familiarize themselves

with the remedies set forth in DA Pam 27-162, paragraph 2-17, to carry

out this policy. If no appropriate remedy can be discovered, forward

the file to the Commander USARCS, with recommendations.

Sec. 536.37 Importance of the claims investigation.

Prompt and thorough investigation will be conducted on all

potential and actual claims for and against the government. Evidence

developed during an investigation provides the basis for every

subsequent step in the administrative settlement of a claim or in the

pursuit of a lawsuit. Claims personnel must gather and record adverse

as well as favorable information. The CJA, claims attorney or unit

claims officer must preserve their legal and factual findings.

Sec. 536.38 Elements of the investigation.

(a) The investigation is conducted to ascertain the facts of an

incident. Which facts are relevant often depends on the law and

regulations applicable to the conduct of the parties involved but

generally the investigation should develop definitive answers to such

questions as ``When?'' ``Where?'' ``Who?'' ``What?'' and ``How?''.

Typically, the time, place, persons, and circumstances involved in an

incident may be established by a simple report, but its cause and the

resulting damage may require extensive effort to obtain all the

pertinent facts.

(b) The object of the investigation is to gather, with the least

possible delay, the best available evidence without accumulating

excessive evidence concerning any particular fact. The claimant is

often an excellent source of such information and should be contacted

early in the investigation, particularly when there is a question as to

whether the claim was timely filed.

Sec. 536.39 Use of experts, consultants and appraisers.

is to gather, with the least

possible delay, the best available evidence without accumulating

excessive evidence concerning any particular fact. The claimant is

often an excellent source of such information and should be contacted

early in the investigation, particularly when there is a question as to

whether the claim was timely filed.

Sec. 536.39 Use of experts, consultants and appraisers.

(a) ACOs or CPOs will budget operation and maintenance (O&M) funds

for the costs of hiring property appraisers, accident

reconstructionists, expert consultants to furnish opinions, and medical

specialists to conduct independent medical examinations (IMEs). Other

expenses to be provided for from O&M funds include the purchase of

documents, such as medical records, and the hiring of mediators. See

Sec. 536.53(b). Where the cost exceeds $750 or local funds are

exhausted, a request for funding should be directed to the Commander

USARCS, with appropriate justification. The USARCS AAO must be notified

as soon as possible when an accident reconstruction is indicated.

(b) Where the claim arises from treatment at an Army MTF, the

MEDDAC commander should be requested to fund the cost of an independent

consultant's opinion or an IME.

to claims in which liability or damages cannot be determined otherwise

and in which the use of such sources is economically feasible, for

instance, where property damage is high in amount and not determinable

by a government appraiser or where the extent of personal injury is

serious and a government IME is neither available nor acceptable to a

claimant. Prior to such an examination at an MTF, ensure that the

necessary specialists are available and a prompt written report may be

obtained.

sources is economically feasible, for

instance, where property damage is high in amount and not determinable

by a government appraiser or where the extent of personal injury is

serious and a government IME is neither available nor acceptable to a

claimant. Prior to such an examination at an MTF, ensure that the

necessary specialists are available and a prompt written report may be

obtained.

(d) Either an IME or an expert opinion is procured by means of a

personal services contract under the Federal Acquisition Regulation

(FAR), part 37, 48 CFR 37.000 through 37.604, through the local

contracting office. The contract must be in effect prior to

commencement of the records review. Payment is authorized only upon

receipt of a written report responsive to the questions asked by the

CJA or claims attorney.

(e) Whenever a source other than claims personnel is used to assist

in the evaluation of a claim in which medical information protected by

HIPAA is involved, the source must sign an agreement designed to

protect the patient's privacy rights.

Sec. 536.40 Conducting the investigation.

(a) The methods and techniques for investigating specific

categories of claims are set forth in DA Pam 27-162, paragraphs 2-25

through 2-34. The investigation of medical malpractice claims should be

conducted by a CJA or claims attorney, using a medical claims

investigator.

(b) A properly filed claim must contain enough information to

permit investigation. For example, if the claim does not specify the

date, location or

details of every incident complained of, the claimant or legal

representative should be required to furnish the information.

theory of liability. However, the investigation should not be limited

to the theories specified, particularly where the claimant is

unrepresented. All logical theories should be investigated.

Sec. 536.41 Determination of liability--generally.

d of, the claimant or legal

representative should be required to furnish the information.

theory of liability. However, the investigation should not be limited

to the theories specified, particularly where the claimant is

unrepresented. All logical theories should be investigated.

Sec. 536.41 Determination of liability--generally.

(a) Under the FTCA, the United States is liable in the same manner

and to the same extent as a private individual under like circumstances

in accordance with the law of the place where the act or omission

giving rise to the tort occurred (28 U.S.C. 2673 and 2674). This means

that liability must rest on the existence of a tort cognizable under

state law, hereinafter referred to as a state tort. A finding of state

tort liability requires the litigating attorney to prove the elements

of duty, breach of duty, causation, and damages as interpreted by

federal case law.

(b) The foregoing principles and requirements will be followed in

regard to tort claims against the United States under other subparts,

with certain exceptions noted within the individual subparts or

particular tort statutes.

and also maritime case law where applicable. Additionally, a noncombat

activity can furnish the basis for a claim under subparts C, F, and J

of this part. Noncombat activities include claims arising out of civil

works, such as inverse condemnation.

(d) Federal, not state or local, law applies to a determination as

to who is a federal employee or a member of the armed forces. Under all

subparts, the designation ``federal employee'' excludes a contractor of

the United States. See 28 U.S.C. 2671. See however, Sec. 536.23(b)

(4)(ii) concerning personal services contractors. For employment

identification purposes apply FTCA case law in making a determination.

tate or local, law applies to a determination as

to who is a federal employee or a member of the armed forces. Under all

subparts, the designation ``federal employee'' excludes a contractor of

the United States. See 28 U.S.C. 2671. See however, Sec. 536.23(b)

(4)(ii) concerning personal services contractors. For employment

identification purposes apply FTCA case law in making a determination.

(e) Federal, not state or local, law applies to an interpretation

of the SOL under all subparts. Minority or incompetence does not toll

the SOL. Case law developed under the FTCA will be used in other

subparts in interpreting SOL questions.

(f) Under the FTCA state or local law is used to determine scope of

employment and under other subparts for guidance.

Sec. 536.42 Constitutional torts.

A claim for violation of the U.S. Constitution does not constitute

a state tort and is not cognizable under any subpart. A constitutional

claim will be scrutinized in order to determine whether it is totally

or partially payable as a state tort. For example, a Fifth Amendment

taking may be payable in an altered form as a real estate claim. For

further discussion see DA Pam 27-162, paragraph 2-36.

Sec. 536.43 Incident to service.

(a) A member of the armed forces' claim for personal injury or

wrongful death arising incident to service is not payable under any

subpart except to the extent permitted by the receiving State under

Sec. Sec. 536.107 through 536.113 (Claims arising overseas); however,

a claim by a member of the United States Armed Forces for property loss

or damage may be payable under AR 27-20, chapter 11 or, if not, under

subparts C, E, F, or G of

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