from and returning to his place of residence. Witnesses who are not salaried employees of the Government and who are not in custody and who attend at point so far removed from their respective residences as to prohibit return thereto from day to day will be entitled to an additional allowance of $8 per day for expenses of subsistence including the time necessarily occupied in going to and returning from the place of attendance. In lieu of the mileage allowance provided for herein, witnesses who are required to travel between the Territories, possessions, or to and from the continental United States, will be entitled to the actual expenses of travel at the lowest first-class rate available at the time of reservation for passage, by means of transportation employed. When a witness is detained in prison for want of security for his appearance, he will be entitled, in addition to his subsistence, to a compensation of $1 a day.

(ii) In Alaska and Canal Zone. (a) In Alaska such witnesses are entitled to the witness fees and mileage prescribed for witnesses before the United States district court in the judicial division in which the trial or hearing is held. Fees vary in the different judicial divisions.

(b) In the Canal Zone such witnesses are entitled to the witness fees and mileage as are prescribed for witnesses before the United States court in the Canal Zone.

(c) Responsible officers in Alaska and in the Panama Canal Zone will keep informed as to the fees payable in United States courts in those places. (c) Mileage-(1) General. A civilian witness not in Government employ, when furnished transportation in kind by the Government, is entitled to 8 cents per mile less the cost of transportation furnished. A civilian witness residing within the jurisdiction of the court, who is subpoenaed and attends the trial in obedience to such subpoena, is entitled to mileage between his residence and the place of trial, regardless of whether both are in the same city.

(2) Computation. Mileage at the rate of 8 cents per mile will be computed on the basis of the Rand McNally Standard Highway Mileage Guide re

gardless of the mode of transportation used.

(d) Subsistence per diem allowance(1) When payable. The subsistence per diem allowance is payable only when the place of trial is so far removed from the place of residence as to prohibit return of the witness thereto from day to day and such fact is properly certified. (See 6 Comp. Gen. 835.) (2) Computation. In computing the subsistence per diem allowance prescribed in paragraph (b)(3)(i) of this section, the calendar day beginning at midnight is the unit, and the subsistence per diem allowance accrues from the time it is necessary for the witness to leave his home in order to arrive at the place of trial at the appointed time until the time he could arrive at his home by first available transportation after his discharge from attendance, any fractional part of a day under such transportation to be regarded as a day for per diem purposes. (See 5 Comp. Gen. 1028, as modified by 6 Comp. Gen. 480 and 6 id. 835.)

(e) Attendance fees-(1) Attendance at more than one case on same day. A person attending as a witness in more than one case on the same day under a general subpoena to appear and testify is entitled to only one per diem for each day's attendance. If separate subpoenas are issued in each case, the defendants being different, the witness is entitled to separate per diem for actual attendance in each case. The duplication of fees on account of attendance as witness in more than one case on the same day does not apply to the 8-cent mileage allowance and does not apply to the per diem on $8 in lieu of subsistence.

(2) Attendance before officer taking deposition. A witness who is required to appear before an officer (civil or military) empowered to take depositions and there to give testimony under oath to be used before a court is entitled for such service and for the necessary travel incident thereto, including return travel, to the allowances prescribed in paragraphs (a) and (b) of this section, the same as though his appearance were before a court. (See 8 Comp. Gen. 18.)

(3) Attendance before military courts or boards of limited jurisdiction. A

subpoena or other compulsory process addressed to a civilian by a military court or board which has not express statutory authority to issue such process, such as a board of officers convened to investigate and report upon the facts connected with the death of an enlisted member while on temporary duty, is void. Civilian witnesses who appear before such a board in response to such void process must be regarded as having done so voluntarily and are not entitled to witness fees, in the absence of a specific appropriation therefor. (See 8 Comp. Gen. 64.)

(4) Computation. The provisions of paragraph (d)(2) of this section are equally applicable for computation of the attendance fee.

(f) Expert-(1) Fees paid. An expert witness employed in accordance with Manual for Courts-Martial, 1951, paragraph 116, may be paid compensation at the rate prescribed in advance by the official empowered to authorize his employment. (See 11 Comp. Gen. 504.) In the absence of such advance authorization no fees, other than ordinary witness fees, may be paid for the employment of an individual as an expert witness. (See paragraph 116, Manual for Courts-Martial (Executive Order 10214).)

(2) Limitations. (i) An expert while employed on behalf of the Government is an officer or employee of the United States within the laws affecting traveling and subsistence expenses of officers and employees of the Government generally. His traveling allowances are therefore subject to the limitations prescribed in the Travel Expense Act of 1949 (63 Stat. 166; 5 U.S.C. 835-842) and the Standardized Government Travel Regulations. (See 6 Comp. Gen. 712.)

(ii) There is no authority for payment by the Government of fees to an expert, who was employed by an officer or employee of the Government to aid in the performance of his duties, other than an expert witness who actually appears as such (paragraph (b)(2) of this section).

(iii) A retired officer, not on active duty, employed as an expert witness is not entitled to any compensation in addition to his retired pay for such service. The traveling allowances of

such a retired officer, so employed, are subject to the limitations prescribed in the Travel Expense Act of 1949 and the Standardized Government Travel Regulations. (See 6 Comp. Gen 712.)

(g) Witness not subpoenaed—(1) Compelled to testify. A person who, although not subpoenaed, is present at trial or hearing before a court or other body authorized to compel the attendance of witnesses by compulsory process, and who is compelled or required to testify at such hearing, is entitled to fees and mileage allowances payable to witnesses.

(2) Voluntarily testifies. A person who was neither subpoenaed nor requested to appear as a witness, but who voluntarily requested and was granted permission to testify to certain matters considered pertinent to an inquiry being conducted, is not entitled to mileage and witness fees. (See 9 Comp. Gen. 255.)

§ 534.4 Other fees.

(a) Service of subpoena. Fees or compensation for the service of a subpoena by a civilian are not prescribed by the laws of the United States. Fees and mileage allowed by the local law for similar services may be paid. If no specific fee or mileage is fixed by local law, reasonable allowances may be paid. (See Dig. Op. JAG, 1912-40, sec. 379.)

(b) Taking of depositions-(1) Fees of civil officers. A civil officer before whom a deposition is taken may be paid the fees allowed by law of the place where the deposition is taken (or a reasonable fee if no specific fee is fixed by local laws), but no mileage or other allowance for travel of the civil officer to the witness is provided for or authorized by law. (See 2 Comp. Gen. 65.)

(2) Travel of witnesses. If the witness and the civil officer before whom the deposition is to be taken do not reside at the same place, the witness should be required to perform the necessary travel, and he is entitled to mileage or other travel allowance therefor as prescribed in § 534.3(e)(2). (3) Oaths in matters of military administration. Where the service of one of the officers designated in the Uni

form Code of Military Justice, Article 136, is not available, fees may be paid to civil officers for administering oaths in matters relating to military administration, subject to the conditions indicated in paragraph (b)(1) of this section.

(c) Interpreters. An interpreter appointed under the Uniform Code of Military Justice, Article 28 (10 U.S.C. 828), is entitled for his services as such to the allowances prescribed for witnesses (§ 534.3).

(d) Furnishing copies of official records or documents. The fees provided by the local laws may be paid to the proper officials for furnishing such certified copies of public records or documents and expenses in connection with the procurement of photostatic copies, photographs, and negatives as are required by the court.

(e) Attendance upon civil courts—(1) Cases involving performance of official duties. A military member on active duty or a civilian in Government employ appearing on behalf of the United States in cases arising out of the performance of their official duties is entitled to transportation and per diem as prescribed in § 534.3(a)(1) and (b)(1). Payment may be made by Department of the Army finance and accounting officers and will be charged to Department of the Army appropriations available for travel expenses of military personnel and civilian employees.

(2) Cases involving other than performance of official duties. A military member on active duty or a civilian in Government employ appearing on behalf of the United States in cases involving other than the performance of their official duties is entitled to transportation or transportation allowances and per diem as may be prescribed by The Attorney General. The subpoena or letter requesting attendance will specify the rates payable and will cite the appropriation chargeable. Payment may be made by a Department of the Army finance and accounting officer and reimbursement obtained from the Department of Justice.

(3) Cases in which civilians not in Government employ are called as witnesses. Payments to civilians out of Government employ will not be made

§ 536.1 Purpose and scope.

(a) Purpose. Part 536 prescribes policies and procedures to be followed in the filing, investigation, processing and administrative settlement of Army generated noncontractual claims. Sections 536.1-536.11 contain general instructions and guidance for the investigation and processing of claims and apply to all claims unless other laws or regulations specify other procedures. They are intended to insure that incidents that may result in claims are promptly and efficiently investigated under supervision adequate to insure a sound basis for official action and that all claims resulting from such incidents are expeditiously settled.

(b) Scope-(1) Applicability. (i) The provisions of §§ 536.12-536.24 apply in

the settlement of claims under the Military Claims Act (10 U.S.C. 2733) for personal injury, death or property damage that was either caused by members or employees of the Army acting within the scope of their employment, or otherwise incident to noncombat activities of the Army.

(ii) Section 536.25 sets forth the procedures to be followed and the standards to be applied in the processing of claims cognizable under Article 139, Uniform Code of Military Justice (10 U.S.C. 939) for property willfully damaged of wrongfully taken or withheld by members of the Army.

(iii) Section 536.29 governs the administrative settlement of claims under the Federal Tort Claims Act (28 U.S.C. 1346(b), 2671, 2672, 2674-2680) for personal injury, death or property damage casued by the negligent act or omissions of members or employees of the Army while acting within the scope of their employment.

(iv) Section 536.45 provides the procedures to be followed in the settlement of claims under the Army Maritime Claims Settlement Act (10 U.S.C. 4801-4804, 4806) for damage caused by a vessel of or in the service of the Army.

(v) Sections 536.140-536.152 provide instructions for settlement of claims under the National Guard Claims Act (32 U.S.C. 715) for personal injury, death or property damage that was either caused by a member or employee of the Army National Guard while in training or duty under Federal law, and acting within the scope of their employment; or otherwise incident to noncombat activities of the Army National Guard not in active Federal service.

(vi) Sections 536.161-536.171 provide instructions for settlement of claims under title 10, United States Code, section 2737 for personal injury, death or property damage (not cognizable under any other law) incident to the use of Government property by members or employees of the Army.

(2) Nonappropriated fund activities. Claims arising from acts or omissions of employees of nonappropriated fund activities within the United States, its Territories, and possessions, are processed in the manner prescribed by

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§ 536.2 Information and assistance.

(a) Government personnel are forbidden to represent any claimant or to receive any gratuity for services. They may not accept any interest in a claim or assist in its presentation (62 Stat. 697, as amended, 18 U.S.C. 283). They are prohibited from disclosing information which may be made the basis of a claim, or any evidence of record in any claim matter, except as prescribed in §§ 518.1 to 518.4 of this chapter or other pertinent regulations. A person lacking authority to approve or disapprove a claim may not advise a claimant or his representative as to the disposition recommended.

(b) The prohibitions against furnishing information and assistance do not apply to the performance of official duty. Any person who indicates a desire to file a claim will be instructed generally as to procedure. He will be furnished forms, as prescribed in appropriate regulations and, when necessary, assisted in preparing the form and assembling evidence. In the vicinity of a field exercise, maneuver, or disaster, information may be disseminated concerning the right to present claims, the procedure to be followed, and the names and locations of claims officers, engineer repair teams, etc. When the government of a foreign country in which the United States Armed Forces are stationed has assumed responsibility for the settlement of certain claims against the United States, officials of that country will be furnished pertinent informa

tion and evidence so far as security considerations permit.

§ 536.3 Definitions and explanations.

The words "he," "him," "his," or "himself" when used in this regulation are applicable to both masculine and feminine genders. The following terms as used in §§ 536.1 to 536.11 and the regulations referred to in § 536.1(b) will have the meanings here indicated:

(a) Approving authority. Any officer designated by the Secretary of the Army or his designee to approve, but not disapprove, claims against the United States in accordance with this regulation. For purposes of the Federal Tort Claims Act (28 U.S.C. 26712680), the Nonscope of Employment Claims Act (10 U.S.C. 2737), and the Military Personnel and Civilian Employees Claims Act (31 U.S.C. 240-243) the term approving authority may include a Department of the Army civilian attorney who has been so designated by The Judge Advocate General.

(a-1) Army National Guard personnel. A member of the Army National Guard engaged in training or duty under section 316, 502, 503, 504, or 505 of title 32, United States Code, or any other provisions of law for which he is entitled to pay under section 301 of title 37, United States Code, or for which he has waived that pay, or who is employed under section 709 of title 32, United States Code.

(a-2) Advance payment. A payment not exceeding $1,000 made prior to settlement of a meritorious claim under §§ 536.12-536.24, §§ 536.140-435.152, and the Foreign Claims Act (10 U.S.C. 2734) where there exists an immediate need of the person who suffered the injury, damage, or loss, or of his family, or the family of a person who was killed, for food, clothing, shelter, medical or burial expenses or other necessities, and other resources for such expenses are not reasonably available.

(b) Civilian employees. For the purposes of creating liability against the Government under Part 536, civilian employee means a person whose activities the Government has the right to direct and control not only as to the result to be accomplished but also as to the details and means by which this