(f) An insurance carrier who becomes subrogated to the rights of an insured must support its claim as to liability and measure of damages (quantum) in the same manner as any other claimant. In this connection, the policy, release and subrogation agreement, affidavit, or other documentary evidence that payment in the same or a larger amount than that claimed has been made to the insured, or on his behalf, will not be accepted by the approving authority as sufficient evidence to establish such facts, inasmuch as such settlements are not binding upon the United States and an independent adjudication, supported by authorities and appropriate evidence, is required by the Federal Tort Claim Act (62 Stat. 982; 28 U. S. C. 2671-2680) and §§ 836.31 to 836.46.

[18 F. R. 3412, June 13, 1953, as amended at 19 F. R. 1903, Apr. 3, 1954]

§ 836.40 Statute of limitations—(a) Claims. Any claim cognizable under §§ 836.31 to 836.46 must be presented in writing within two years after the occurrence of the accident or incident out of which the claim arises.

(b) Suits. A suit may to filed pursuant to the provisions of 62 Stat. 933, as amended; 28 U. S. C. 1346 (b) if brought within two years after such claim accrued. If a claim for a sum not exceeding $1,000 is presented to the Air Force, the time to institute a suit under the act shall be extended for a period of six months from the date of mailing of notice to the claimant by the Air Force with respect to the final disposition of the claim, or for a period of six months from the date of withdrawal of the claim from the Air Force.

§ 836.41 Acceptance of award—(a) General. The acceptance by the claimant of any award, compromise, or settlement made pursuant to §§ 836.31 to 836.46 shall be final and conclusive on the claimant, and shall constitute a complete release of any claim against the United States and against the military or civilian personnel of the Air Force whose act or omission gave rise to the claim by reason of the same subject matter.

(b) Acceptance agreements. An acceptance agreement and general release will be required of and signed by the claimant, or claimants, as a condition precedent to payment under §§ 836.31 to 836.46 in all cases except where the

claim is for property damage only and is approved in the amount claimed, and the report of the claims officer shows affirmatively that no persons were injured or killed in the accident or incident giving rise to the claim for property damage.

(c) Minors. Where the amount claimed for personal injury of a minor does not justify the expense incident to the appointment of a statutory guardian, the entire file will be forwarded to The Judge Advocate General, USAF, for appropriate action. However, when the claim involves personal property of a minor, a release executed by him, supported by a release and indemnity agreement executed by his legal or natural guardian, would adequately protect the interests of the Government when local law requires a tender of the consideration in the event the minor subsequently repudiates the settlement.

[17 F. R. 3324, Apr. 15, 1952, as amended at 19 F. R. 1903, Apr. 3, 1954]

§ 836.42 Attorney fees. The Secretary of the Air Force or his designee making an award pursuant to §§ 836.31 to 836.46, may, as a part of such award, determine and allow reasonable attorney fees, which, if the amount awarded is $500 or more, shall not exceed 10 percent of the sum approved, and shall be paid to the attorney representing the claimant, out of, but not in addition to, the amount of the award. Attorney fees may be fixed only on written request of either the claimant or his attorney.

§ 836.43 Injury or death of military personnel or civilian employees―(a) Military personnel. The Government is not liable under the provisions of 62 Stat. 982; 28 U. S. C. 2671-2680 for personal injuries to or death of military personnel where the injuries or death arise out of or in the course of activity incident to service, and such claims cannot be considered administratively under the provisions of §§ 836.31 to 836.46.

(b) Civilian employees. Claims on account of personal injury or death of civilian employees of the Air Force, to whom the Federal Employees' Compensation Act of September 7, 1916, as amended (39 Stat. 742, as amended; 5 U. S. C. 751-793), is applicable, will not be considered administratively under the provisions of §§ 836.31 to 836.46.

(c) Medical, hospital and burial expenses. See 836.14 (b).

§ 836.44 Final action by designee. Claims under the provisions of §§ 836.31 to 836.46 may be approved or disapproved in whole or in part by the appropriate designee of the Secretary of the Air Force. The action of such approving authority, in approving or disapproving a claim in whole or in part, will be final and conclusive for all administrative purposes.

[19 F. R. 1903, Apr. 3, 1954]

Upon disap

§ 836.45 Disapproval. proval of a claim in whole or in part by the approving authority, the claimant will be notified in writing of the action taken, the reason therefor, and the fact that the action of the designee is final. If a claim is disapproved in part, the claimant will be advised that payment will be forthcoming for the approved part of the claim upon receipt within 30 days of a properly executed settlement agreement, and that upon nonreceipt of the settlement agreement within the time allotted, it will be presumed that it is the claimant's intention to withdraw his claim from further administrative processing.

[19 F. R. 1903, Apr. 3, 1954]

§ 836.46 Payment. Prior to payment by the Air Force of any claim within the provisions of §§ 836.31 to 836.46, each of the following conditions must be fulfilled:

(a) The amount of the damage, loss, or destruction, or the amount payable on account of personal injury or death must be determined in accordance with the law of the place where the negligent act or omission occurred.

(b) The payment must not exceed $1,000.

(c) The claim must be presented within two years after the occurrence of the accident or incident out of which the claim arises.

(d) The claimant must accept, in writing, in full satisfaction, and final settlement:

(1) The amount approved for personal injury or wrongful death, even though equal to amount claimed.

(2) The amount approved for property damage or loss if less than the amount claimed.

(3) The amount approved for property damage or loss equal to amount claimed when personal injury or death resulted also from the accident or inci

dent giving rise to the claim for property damage, even though no claim is filed on account of the personal injury or death. CLAIMS UNDER ARTICLE 139, UNIFORM CODE OF MILITARY JUSTICE

AUTHORITY: §§ 836.51 to 836.56 issued under R. S. 161, sec. 202, 61 Stat. 500, as amended; 5 U. S. C. 22, 171a. Interpret or apply sec. 1, 57 Stat. 372, as amended, sec. 1, 59 Stat. 225, sec. 1, 62 Stat. 983, as amended, sec. 1, 64 Stat. 144; 31 U. S. C. 222c, 223b, 28 U. S. C. 2672, 50 U. S. C. 735.

SOURCE: §§ 836.51 to 836.56 appear at 18 F. R. 3192, June 4, 1953.

§ 836.51 Purpose. Sections 836.51 to 836.56 outline the procedure for the administrative settlement of claims arising under Article 139 of the Uniform Code of Military Justice (64 Stat. 144; 50 U. S. C. 735).

§ 836.52 Claims payable. Any claim falling within the statutory provisions of Article 139 of the Uniform Code of Military Justice (64 Stat. 144; 50 U. S. C. 735), not hereinafter excluded, may be submitted for consideration under §§ 836.51 to 836.56 and in proper cases approved for payment: Provided, That such damage, loss, or destruction was caused by riotous, violent or disorderly conduct or acts of depredation, willful misconduct or such reckless disregard of property rights as to carry an implication of guilty intent (see §§ 836.53 and 836.55).

Claims

§ 836.53 Claims not payable. otherwise within the scope of §§ 836.51 to 836.56 are nevertheless not payable under their provisions when the damage, loss, or destruction of property involves any of the following:

(a) Claims payable under other regulations. Claims payable under the provisions of §§ 836.11 to 836.24, §§ 836.31 to 836.46; 836.61 to 836.83; §§ 836.90 to 836.108, or §§ 836.141 to 836.148 are not payable under the provisions of §§ 836.51 to 836.56. No charges (stoppages) against the pay of responsible persons will be made under §§ 836.51 to 836.56 to reimburse the Government for payments made under such other regulations: Provided, That claims which are within the scope of §§ 836.51 to 836.56, and also within the scope of §§ 836.61 to 836.83, but the act or omission occurred outside the scope of the members' employment (see § 836.66 (b)), may be processed under §§ 836.51 to 836.56, either in whole or in part, where specific authority

to do so has been obtained from the designated authority (foreign claims commission) having jurisdiction over claims arising in foreign countries in such overseas command.

(b) Claims resulting from simple negligence. Claims resulting from the simple negligence of the responsible person whether or not within the scope of his employment.

(c) Claims of subrogees. Claims of insurers and other subrogees.

(d) Insured losses. Any portion of a claim covered by insurance regardless of whether claim is made against the insurer or not.

(e) Claims for personal injury or death. Claims for personal injury or death.

(f) Acts or omissions within scope of employment. Claims for damage, loss or destruction of property resulting from acts or omissions of the responsible person while acting within the scope of his employment.

(g) Absence of riotous, violent and disorderly conduct. Claims arising from larceny, forgery, deceit, embezzlement, fraud, misappropriation, and misapplication, where the wrongful taking is accomplished under conditions of stealth, deception, trickery, or device, unaccompanied by any force, violence, riotous, or disorderly conduct.

Property

(i) Government property. owned by the United States and its instrumentalities, including property furnished through the Armed Forces Clothing Monetary Allowance System or through issue.

(j) Contributory negligence. When the negligent or wrongful act of the claimant, or his agent or employee while acting within the scope of his employment, in whole or in part, is the proximate cause of the incident giving rise to the claim.

(k) Indirect damages. Indirect and consequential damages (see § 836.3 (c)

(5)).

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Action by

§ 836.54 Procedure—(a) injured person. Any person who believes that his property has been willfully damaged or wrongfully taken by a member of the Air Force may complain, orally or in writing to the commander of the person alleged to be the offender. However, if the organization or detachment of the alleged offender is unknown, the injured person may complain to the commander of the nearest Air Force unit or installation (see §§ 836.2 and 836.3 (e)). Such a complaint should, before action thereon, be accompanied by a claim for damages in writing, in triplicate, and for a definite amount (see § 836.3 (b)). Where appropriate, such a claim may be regarded as the complaint.

(b) Action on complaint-(1) By commander receiving complaint. The commander to whom such a complaint is submitted will, if he is authorized to appoint a claims officer, convene a board of from one to three officers to investigate the complaint, to ascertain and report the facts, and to make findings and recommendations relating to the claim or the assessment of the damages sustained against the responsible parties, or forward the complaint direct to the commander concerned for necessary action in accordance herewith.

(2) By a board of officers.

The claims

officer may act as a board of one officer without further appointment in any case referred to him by the commander who does not convene a special board to investigate the complaint. Such a board is empowered to summon and examine witnesses, to receive documentary and other evidence, to determine whether the claim is cognizable under Article 139 of the Uniform Code of Military Justice (64 Stat. 144; 50 U. S. C. 735) and whether the alleged offender is a member of the command of the officer appointing the board. If an appearance of the alleged offender before the board is not practicable, he will, after all available witnesses have been heard, be afforded an opportunity to submit any pertinent evidence he may desire to have the board consider. If the board finds that the claim is cognizable under the provisions of Article 139 and §§ 836.51 to 836.56 it may recommend an assessment of the damages sustained against the responsible parties, in accordance with the provisions of §§ 836.51 to 836.56 and § 836.4, or, in either event, it may recommend disapproval of the claim in accordance with the provisions of §§ 836.51 to 836.56.

Page 57

However, where the offenders cannot be identified but the organization or detachment to which they belong is known, such assessments totaling the amount of damages sustained may be recommended in such proportion as may be deemed just upon the individual members thereof who were found by the board to have been present at the scene at the time the damages complained of were inflicted.

(c) Action by appointing commander on the report of the board-(1) Where the alleged offender is found to be a member of his command. If the board finds that the claim is or is not cognizable under Article 139 of the Uniform Code of Military Justice and recommends an assessment against a member of the command of the appointing commander, or disapproval of the claim, the appointing commander will refer the report to a staff judge advocate, judge advocate, or any other officer qualified as provided by Article 27 of the Uniform Code of Military Justice (64 Stat. 117; 50 U.S. C. 591), for review and recommendation before approving or disapproving the report. If no such officer is available he will refer the report to the next higher headquarters having such an assigned officer, for such review and recommendation. After considering this review and recommendation, the appointing commander, or his successor in command, will personally determine whether the claim is within the provisions of Article 139 and §§ 836.51 to 836.56. If he finds that the claim is within the provisions thereof, he will personally fix the amount to be charged against the pay of any offender in his command, which will not be in excess of the assessment recommended by the board. If the offender cannot be ascertained but the organization or detachment is known and it is in his command, such charges, totaling the amount of damages assessed and approved, may be made in such proportion as may be deemed just upon the individual members of such organization or detachment who are shown to have been present at the scene at the time the damages complained of were inflicted, as determined by the approved findings of the board. The amount so approved will be entered on the offender's Military Pay Record to be stopped against his pay and the amount so stopped or collected will be paid to the claimant by the disbursing officer having custody of the offender's pay record. Any order of the commander directing such charges (stop

pages) against the pay of the offender shall be conclusive on any disbursing officer for the payment by him to the claimant of the damages so assessed and approved. (See paragraph (e) of this section.) The claimant and the offender will be promptly notified, in writing, of the action taken.

(2) Where the alleged offender is found to be a member of another command. In such circumstances, the appointing commander will forward the complaint and a copy of the report direct to the commander of the alleged offender, if known, for necessary action. The latter will then take action as provided in subparagraph (1) of this paragraph, or he may refer the complaint and report to a board for such further proceedings BS may be necessary before taking such action.

(3) Where the alleged offender is found to be a member of another armed force of the United States. In such circumstances, the appointing commander will forward the complaint and a copy of the report to The Judge Advocate General, United States Air Force, for transmission to the service concerned. The claimant will also be informed of such disposition of his complaint.

(4) Where the alleged offender is found not to be a member of an armed force of the United States. In such circumstances, the appointing commander will disapprove the claim in accordance with the procedure outlined in subparagraph (1) of this paragraph.

(d) Reconsideration of action. The action of the commander, in approving or disapproving the claim and/or the findings and assessment of damages, in whole or in part, as provided in paragraph (c) (1) of this section. is not subject to appeal by the claimant or the offender, but errors or irregularities may be corrected by the commander. Requests for such reconsideration or review will be in writing and will be submitted to such commander by the claimant or offender within 10 days after receipt of notice of the action taken, together with the supporting evidence, in triplicate, indicating fraud, error of law, regulation, fact and/or calculation. The following rules govern reconsideration action:

(1) The appointing commander. The commander who took such original setion on the claim may reconsider and change his former decision which was favorable or unfavorable to the offender,

if he determines that the original finding was wrong, so long as he is still the commander of the unit or installation concerned, and regardless of whether the offender has been transferred.

(2) Successor in command. If the appointing commander has ceased to be the commander of the unit or installation, his authority to reconsider and change his decision which was favorable or unfavorable to the offender is lost. However, his successor in that command may change the original decision even though the offender has been transferred, but only upon the basis of newly discovered evidence, fraud or obvious error of law, fact, or calculation appearing on the face of the record.

(3) Commander of offender's new command. The commander of the unit or installation to which the offender has been transferred has no authority to change a decision which was favorable or unfavorable to the offender, unless the original unit has been disbanded, in which event he may take the corrective action authorized in subparagraph (2) of this paragraph, provided he could have appointed such a board under paragraph (b) of this section.

the

(4) Responsible command. If commander of the responsible command desires to relieve or charge an offender improperly charged or relieved in the first instance the report will be returned and all errors or irregularities will be called to the attention of the commander who ordered the charges or disapproved the claim. Such commander will promptly reconsider the action in accordance with the rules set forth in subparagraphs (1), (2) and (3) of this paragraph, and correct any such errors or irregularities, removing as to future payments any improper charges so ordered, and approving any claim improperly denied.

(e) Remission of indebtedness. There can be no remission of an assessment properly charged against an offender without the consent of the injured person. The act of May 22, 1928, as amended by the act of June 26, 1934 (45 Stat. 698, 48 Stat. 1222; 10 U. S. C. 875a), and Transfer Order 25, October 14, 1948 (13 F. R. 6270), which authorizes the Secretary of the Air Force to remit and cancel indebtedness of an airman to the United States or any of its instrumentalities, is not applicable to permit the remission and can

under §§ 836.51 to 836.56, since the cited statute applies only to indebtedness to the United States or any of its instrumentalities and Article 139 of the Uniform Code of Military Justice is never applied where only Government property is involved.

§ 836.55 Conditions of payment. Prior to assessment and payment of any claim under the provisions of §§ 836.51 to 836.56, each of the following conditions must be fulfilled:

(a) The claim must relate to real or personal property, excluding property of the United States. (See § 836.53 (i)).

(b) The property must have been willfully damaged or wrongfully taken by military personnel of the Air Force.

(c) The offender must be a member of the Air Force at the time the complaint is filed.

(d) The amount of the damage, loss, or destruction must be determined.

(e) Damages assessed against the responsible parties by the board must be approved personally by their commander (see § 836.54 (c) (1)).

(f) The commander of the offender must have personally ordered the charges against his pay (see § 836.54 (c) (1)).

(g) The complaint must have been presented within 90 days; also the claim must be in writing, for a definite amount, and relate to damage caused by the acts of the offender.

(h) The negligent or wrongful act of the claimant, his employee or agent, must not have been the proximate cause of the incident from which the claim arose.

(i) The claim, or any approved portion thereof, must not be excluded by any of the provisions of §§ 836.51 to 836.56 (see 836.53).

(j) The offender must have been afforded a right of appearance before the board or the right to inspect the record of evidence and to submit evidence, unless the offender waived such rights either expressly or by his own act.

§ 836.56 Effect of court-martial proceedings. Administrative action under §§ 836.51 to 836.56 is separate and distinct from, and is not affected by, any disciplinary action taken, or to be taken, against the offender; consequently such a person may be tried and punished for