§ 536.151 Property lost or damaged incident to service.

Claims of Army National Guard personnel for personal property lost or damaged incident to federally funded duty or training will be considered under §§ 536.139-536.152 only if they are not payable under title 31 United States Code 241, and are generated by tortfeasors defined in § 536.141, e.g., damage to POV's.

§ 536.151a Claimants excluded.

A national, or a corporation controlled by a national, of a country at war or engaged in armed conflict with the United States, or of any country allied with such enemy country, is exIcluded as a claimant, unless the settlement authority of the command exercising claims supervisory authority of the area determines that the claimant is and, at the time of the incident, was friendly to the United States. A prisoner of war or an interned enemy alien is not excluded as to a claim for damage to or loss or destruction of personal property in the custody of the Government otherwise payable under §§ 536.140-536.152.

§ 536.151b Claims over $25,000.

Claims cognizable under title 32, United States Code, section 715, and this chapter, which are meritorious in amounts in excess of $25,000 will be forwarded to the Chief US Army Claims Service, who will effectuate a tentative settlement subject to approval by the Secretary of the Army or require the claimant to state the minimum amount he will accept and to provide appropriate justification. Upon completion of the foregoing, the Chief US Army Claims Service, will prepare a memorandum of law with recommendations, and forward the claim to the Secretary of the Army for final action. The Secretary will either disapprove the claim or approve it in whole or in part. If the claim is approved in an amount in excess of $25,000 the claimant may be paid $25,000 after the execution of the settlement agreement in full satisfaction of the claim. The excess will be reported to the Claims Division, General Accounting Office, 441 S Street N.W. Washington DC, 20548 for payment.

§ 536.151c Settlement procedures.

(a) Approving and settlement authorities will follow the procedures set forth in §§ 536.7-536.11.

(b) Disapproval of a claim. The disapproval of a claim, in whole or in part, is final unless the claimant appeals in writing. If the claim is in excess of $5,000 the appeal is to the Secretary of the Army. Claims of $5,000 or less which are disapproved at the US Army Claims Service will be appealed to The Judge Advocate General or the Assistant Judge Advocate General. Claims of $5,000 or less which are disapproved by field settlement authorities will be appealed to the Chief, US Army Claims Service. Upon disapproval of a claim, in whole or in part, the settlement authority will notify the claimant by certified or registered mail of the action taken and reason therefor. The letter of notification will inform the claimant that

(1) He may appeal, and it will indicate the authority to whom the appeal should be addressed.

(2) No form is prescribed for an appeal but it must be forwarded through the authority disapproving the claim.

(3) The ground for appeal should be set forth fully.

(4) The appeal must be submitted within 30 days of receipt by the claimant of notice of action on his claim. An appeal will be considered timely if postmarked within 30 days after receipt by the claimant of such notification. For good cause shown, the Chief, US Army Claims Service, may extend the time for appeal.

§ 536.151d Action on appeal.

(a) Upon receipt, the appeal will be examined by the settlement authority and after any action deemed necessary it will be forwarded with the related file and a seven-paragraph memorandum of opinion to the Chief, US Army Claims Service, Fort Meade, MD 20755. If the evidence in the file, including information submitted by the claimant with the appeal, indicates that the appeal should be sustained, it may be treated as a request for reconsideration under § 536.152 and the processing of the appeal may be de

layed pending the outcome of further efforts by the settlement authority to settle the claim. The Judge Advocate General, the Assistant Judge Advocate General, or the Chief, US Army Claims Service, may take similar action in appropriate cases.

(b) As to an appeal which will be acted on by The Judge Advocate General, the Assistant Judge Advocate General, or the Secretary of the Army, the Chief, US Army Claims Service, will forward the claim togethhis recommendation for action. The appeal will be sustained or denied. All matters submitted by the claimant will be forwarded and considered.

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with

(a) An approving or settlement authority may reconsider a claim upon request of the claimant or someone acting in his behalf. In the absence of such a request, an approving or settlement authority may on his own initiative reconsider a claim. He may reconsider a claim which he previously disapproved in whole or in part (even though a settlement agreement has been executed), when it appears that his original action was incorrect in law or fact based on the evidence of record at the time of the action or subsequently received. If he determines that his original action was incorrect, he will modify the action and, if appropriate, make a supplemental payment. The basis for a change in action will be stated in a memorandum included in the file.

(b) A successor supervisory or settlement authority may also reconsider the original action on a claim but only on the basis of fraud or collusion, new and material evidence, or manifest error of fact such as errors in calculation or factual misinterpretation of applicable law.

(c) A request for reconsideration should indicate fully the legal or factual basis asserted as grounds for relief. Following completion of any investigation or other action deemed necessary for an informed disposition of the request, the approving or settlement authority will reconsider the claim and attempt to settle it by granting such relief as may appear warranted. When further settlement efforts appear unwarranted, the entire file with a memorandum of opinion will be forwarded through claims channels to the Chief, U.S. Army Claims Service, Office of The Judge Advocate General, Fort Meade, MD 20755, and the claimant informed of such reference.

of law for damage to, or loss of, property, or for personal injury or death, caused by a member of the Army or a civilian official or employee of the Department of the Army, or of the Army, incident to the use of a vehicle of the United States at any place incident to the use of other property of the United States on a Government installation.

§ 536.164 Claims payable.

(a) General. A claim for personal injury, death, or damage to or loss of property, real or personal, is payable under §§ 536.161-536.171 when

(1) Caused by the act or omission, negligent, wrongful, or otherwise involving fault, of a member of the Army, or the Army National Guard, or a civilian employee of the Department of the Army, the Army, or the Army National Guard

(i) Incident to the use of a vehicle of the United States at any place.

(ii) Incident to the use of any other property of the United States on a Government installation.

(2) The claim may not be approved under any other claims statute and claims regulation available to the Department of the Army for the administrative settlement of claims.

(3) The claim has been determined to be meritorious, and the approving or settlement authority has obtained a settlement agreement in an amount not in excess of $1,000 in full satisfaction of the claim prior to approval of the claim for payment.

(b) Personal injury or death. A claim for personal injury or death is allowable only for the cost of reasonable medical, hospital, and burial expenses actually incurred and not otherwise furnished or paid by the United States.

§ 536.165 Claims not payable.

A claim is not allowable under §§ 536.161-536.170 which:

(a) Is cognizable under any other provision of law administered by the military departments or regulations of the Department of the Army.

(b) Results wholly or partly from the negligent or wrongful act of the claimant, his agent, or his employee.

The doctrine of comparative negligence is not applicable.

(c) Is for medical, hospital, and burial expenses furnished or paid by the United States.

(d) Is for any element or damage pertaining to personal injuries or death other than provided in

§ 536.164(b). All other items of damage, for example, compensation for loss of earnings and services, diminution of earning capacity, anticipated medical expenses, physical disfigurement, and pain and suffering are not payable.

(e) Is legally recoverable by the claimant under an indemnifying law or indemnity contract. If the claim is legally recoverable in part, that part recoverable by the claimant is not payable.

(f) Is a subrogated claim.

and no other method of collection is provided, the matter is referred for action under this section. This relationship exists with regard to

(i) Property under the control of the Department of the Army. See AR 73510 and AR 735-11.

(ii) Property of the Defense Supply Agency in the custody of the Department of the Army. See AR 735-16.

(iii) Property of nonappropriated funds of the Army (except Army and Air Force Exchange Service property). See AR 230-8.

(iv) Federal property made available to the Army National Guard. See NGR 75-4.

(2) This section does not apply to(i) Claims arising from marine casualties. See AR 55-19 and § 537.7.

(ii) Claims for damage to property funded by civil functions appropriations.

(iii) Claims for damage to property of the Army and Air Force Exchange Service.

(iv) Reimbursements from agencies and instrumentalities of the United States for damage to property.

(v) Collection for damage to property by offset against the pay of employees of the United States, or against amounts owed by the United States to common carriers, contractors, and

States.

(vi) Claims by the United States against carriers, warehousemen, insurers, and other third parties for amounts paid in settlement of claims by members and employees of the Army, or the Department of Defense, for loss, damage, or destruction of personal property while in transit or storage at Government expense. See § 536.27 of this chapter and AR 73512.

(3) The commander of a major overseas command, as defined in paragraph (c)(5) of this section, is authorized to establish procedures for the processing of claims in favor of the United States for loss, damage, or destruction of property which may, to the extent deemed necessary, modify the procedures prescribed herein. Two copies of all implementing directives will be furnished The Judge Advocate General, Attention: Chief, Litigation Division, Department of the Army,

Washington, D.C. 20310. Procedures will be prescribed

(i) To carry out the provisions of Department of Defense Directive No. 5515.8, assigning single service claims responsibility.

(ii) To carry out provisions of treaties and other international agreements which limit or provide special methods for the recovery of claims in favor of the United States.

(c) Definitions. For the purpose of this section only, the following terms have the meaning indicated:

(1) Claim. The Government's right to compensation for damage caused to Army property.

(2) Prospective defendant. An individual, partnership, association, corporation, governmental body, or other legal entity, foreign or domestic, except an instrumentality of the United States, against whom the United States has a claim.

(3) Damage. A comprehensive term, including not only damage to, but also loss or destruction of Army property.

(4) Army property. Real or personal property of the United States or its instrumentalities and, if the United States is responsible therefor, real or personal property of a foreign government, which is in the possession or under the control of the Army, one of its instrumentalities, or the Army National Guard, including that property of an activity for which the Army has been designated the administrative agency, and that property located in an area in which the Army has been assigned single service claims responsibility by appropriate Department of Defense directive.

(5) Major overseas command. U.S. Army Forces Southern Command; U.S. Army, Europe; and any command outside the continental limits of the continguous States specially designated by The Judge Advocate General under the provisions of § 536.4b of this chapter.

(6) Army staff judge advocate. The staff judge advocate of each of the numbered armies in the continental United States, the Military District of Washington, U.S. Army, and U.S. Army, Alaska.

(7) Staff judge advocate. An officer so assigned (par. 2b, AR 1-140). The

staff judge advocate of a command or agency reporting directly to Headquarters, Department of the Army, or of a major subordinate command of the U.S. Army Materiel Command, the senior Army judge advocate assigned to a joint or unified command, and, if the command has established a command claims service pursuant to § 536.4b of this chapter, the chief of the command claims service will perform the duties specified for staff judge advocates in this regulation. In addition, the legal adviser of a comparable command or agency not having a judge advocate or staff judge advocate will perform these duties.

(8) Judge advocate. An officer so designated (par. 2b, AR 1-140). If no judge advocate is present for duty, and the command or agency has a legal adviser, he will perform the duties specified for judge advocates in this section. Any official authorized to perform the duties specified for staff judge advocates under this section may perform the duties specified for judge advocates herein.

(9) Legal adviser. An attorney within the meaning of paragraph 2-2, CPR A8, who is the principal adviser to the commander or operating head of any Army command or agency on legal matters.

(d) Limitation of time. The Act of July 18, 1966 (80 Stat. 304, 28 U.S.C. 2415) established a 3-year statute of limitations, effective July 19, 1966, upon actions in favor of the United States for money damages founded upon a tort. In computing periods of time excluded under 28 U.S.C. 2416, the judge advocate concerned shall be deemed the official charged with responsiblity and will ensure that action may be brought in the name of the United States within the limitation period.

(e) Foreign prospective defendants. Except as indicated below, claims within the scope of this section against foreign prospective defendants will be investigated, processed, and asserted without regard to the nationality of the prospective defendant. Claims against an international organization, a foreign government or a political subdivision, agency, or instrumentality thereof, or against a