The following sums are appropriated, *** For payment of ***; claims (not to exceed $1,000 in any one case) for damages to or loss of private property incident to the operation of Army and Air National Guard camps of instruction, either during the stay of units of said organizations at such camps or while en route thereto or therefrom; *** (Act of August 1, 1953, Public Law 179, 83d Cong.).

(b) In accordance with general principles of law, the National Guard and the Air National Guard when not in Federal service are not agencies of the United States, and the United States is not liable for injury or damage arising from their activities. Thus, claims for such injury or damage are not cognizable under the Federal Tort Claims Act, as revised and codified (62 Stat. 982, 28 U.S.C. 3671-80). By the statutory provisions referred to in paragraph (a) of this section, the United States assumes an obligation to settle administratively limited classes of claims relating to activities of the National Guard and the Air National Guard.

As used in §§ 564.51 to 564.58, the following terms shall have the meaning hereinafter set forth:

(a) Claim. A written demand for payment in money.

(b) Private property. Real or personal property, excluding property owned by any government entity, Federal, State, city, county, or town, and excluding stocks, bonds, chose in action, debts, and insurance policies.

(c) Camps of instruction. Regularly scheduled training for units in organized camps, or bivouacs and maneuvers away from such camps constituting part of such training.

(d) While en route thereto or therefrom. The period of time during which a unit as distinguished from its individual members if travelling from its rendezvous to a camp of instruction or return, or from the camp of instruction or on a regularly scheduled maneuver and return thereto, and the routes followed by the unit. The term does not include the movement of individuals.

(e) Proximate cause. No precise definition of this term can be given. Whether acts or omissions of personnel constitute proximate cause must

be determined in accordance with the local law. In general, an act or omission may be said to have been a proximate cause of the accident or incident if it was one of the impelling forces resulting in the accident or incident. For example, in a rear-end collision, the failure of the driver of the following car to stop in time is said to be the proximate cause of the accident. But, if the driver of the leading car stopped so suddenly and without warning that the second car, using the utmost diligence, could not have stopped, the conduct of the driver of the leading car would be said to have been the proximate cause of the accident. An act or omission without the existence of which the accident or incident would not have occurred but which cannot be said to have brought it about is a condition and would not constitute a basis for liability, or, if committed by the claimant, would not constitute a basis for denial of his claim. For example, violations of statutes or ordinances providing standards of safety may be negligence in themselves, but may not constitute the bases of liability or for denial of a claim.

(f) Scope of employment. Scope of employment is determined in accordance with the law of the place where the accident or incident occurred, except that statutes in derogation of the common law, such as statutes creating a presumption that an employee is in scope of employment if using the employer's car with permission, are not controlling. An act or omission is within the scope of employment if such activity is expressly or impliedly directed or authorized by competent authority or is at least in part intended to further the mission of the unit or organization, or the interests of the National Guard or the Air National Guard. In determining whether an act or omission was within the scope of employment, consideration must be given to all the attendant facts and circumstances, including the time, place, and purpose thereof; whether it was in furtherance of the omission of the unit of the National Guard or Air National Guard; whether it was usual for or reasonably to be expected of personnel of the classification and

grade involved; and whether the instrumentality causing the damage or injury resulted was property of the National Guard or Air National Guard, or of a State or the Federal Government being used by the National Guard or Air National Guard.

§ 564.54 Claims payable.

Claims for damage to or loss of private property proximately resulting from authorized activities incident to the operation of camps of instruction, including maneuvers, field exercises, training of units and personnel, movement of vehicles, operation of aircraft, maintenance and support of units and personnel, tortious acts or omissions of military personnel or civilian employees of the National Guard or Air National Guard in the scope of employment, and claims arising under a contract, executed incident to camps of instruction, even though legally enforceable under the express terms of the contract and no other, are payable under §§ 564.51 to 564.58.

§ 564.55 Claims not payable.

(a) Contributory negligence. Negligence or wrongful act of the claimant or of his agent or employee, a proximate cause of the accident or incident, bars a claim. The law of the place where the accident or incident occurred will be followed in determining whether contributory negligence is present but the doctrine of comparative negligence will not be applied.

(b) Personal injury. Claims for personal injury are not cognizable under the act of §§ 564.51 to 564.58.

(c) Use and occupancy. Claims for use and occupancy, payment of which is governed by the terms of a lease or contract, are not cognizable under §§ 564.51 to 564.58.

§ 564.56 Action by claimant.

(a) Who may present a claim. A claim for damage to or loss of private property may be presented by the owner, or his agent or legal representative. The word "owner", as so used, includes bailees, lessees, mortgagors, conditional vendors, and subrogees, but does not include mortgagees, conditional vendors, and others having title for purposes of security only. If

filed by an agent or legal representative, the claim should be filed in the name of the owner, signed by such agent or legal representative, showing the title or capacity of the person signing, and be accompanied by evidence of the appointment of such person as agent, executor, administrator, guardian, or other fiduciary. If filed by a corporation the claim should show the title or capacity of the officer signing it and be accompanied by evidence of his authority to act. In case of the death of the proper claimant, if it appears that no legal representative has been or will be appointed, the claim may be presented by any person who, by reason of the family relationship, has in fact incurred the expense for which the claim is made.

(b) Form of claim. A claim shall be submitted in the form of a statement signed by the claimant, setting forth his address, and stating briefly all the facts and circumstances relating to the damage for which compensation is claimed, including a description of the property, evidence of its value, the nature and extent of the damage, the date and place such damage was incurred, the agency by which it was caused, if known, and the amount. Standard Form 95 (Claim for Damage or Injury), appropriately modified by deleting references to "injury” and "personal injury," may be used for this purpose. The claim and all papers accompanying it which are signed by the claimant should bear like signatures.

(c) Time within which claim must be presented. A claim cognizable under §§ 564.51 to 564.58 must be submitted within two years of the date of occurrence of the accident or incident.

(d) Place of filing. A claim cognizable under §§ 564.51 to 564.58 must be presented in writing to the adjutant general, or his duly authorized representative, of the State, Territory, Commonwealth, or District of Columbia, having jurisdiction over the personnel or unit involved in the accident or incident out of which the claim arose, or to the office of the Chief, National Guard Bureau, The Pentagon, Washington, D.C. 20310.

(e) Evidence to be submitted by claimant (1) General. A claim for

damage to or loss of private property must be specific and substantiated by evidence of the damage or loss. A mere statement that such property was damaged or lost and that a certain amount is a fair compensation therefor is not sufficient to support a claim.

(2) Motor vehicles, buildings, fences, and other structures. The claimant must submit, if repairs or replacement has been effected, itemized bills therefor, signed and certified as just and correct by the repairman or suppliers, together with evidence of payment thereof, if made; if repairs or replacement has not been effected, an estimate of the cost thereof signed by a person competent to effect such repairs or replacement.

(3) Crops, trees, land, and other realty. The claimant must submit an itemized signed estimate of the cost of repairs or restoration of the property, supported by evidence of the number of acres of land, crops, or trees involved, the normal yield per acre and the market value of the property per unit of measure common to the property damaged, or the estimated length of time the land will be unfit for grazing, the normal rental value per acre of similar land in the vicinity, and such other information as may be necessary.

(4) Contracts. A copy of the contract, or competent evidence of the provisions thereof, will be furnished by the claimant in support of a claim cognizable under § 564.54.

(5) Additional evidence. The claims officer, the interested State adjutant general, or the Chief National Guard Bureau, may require the claimant to submit such additional evidences as he deems necessary to substantiate the claim, including, without limiting the generality of the foregoing, estimates of cost, of repairs from repairman other than those whose estimates the claimant has submitted with the claim and evidence of ownership of or interest in the property.

§ 564.57 Procedure.

Responsibility for the investigation of claims cognizable under §§ 564.51 to 564.68 and of accidents or incidents which may give rise to such claims rests in the adjutants general of the

several States. Accordingly, claims received by the National Guard Bureau, or other agencies of the United States, will be referred to the adjutants general of the interested States. Regulations promulgated by the State adjutants general should require the prompt investigation of all accidents or incidents which might result in claims cognizable hereunder, whether or not claims have been filed.

§ 564.58 Determination of amount allowable.

(a) The maximum amount which may be allowed is the value of the property immediately prior to the accident or incident. Subject to the foregoing, the amount allowable is the cost, incurred or estimated to be incurred, of replacing the property, or of restoring it to the condition in which it was immediately prior to the accident or incident. However, if as the result of the repairs effected, the value of the property is appreciably enhanced, a sum equal to the increase in value will be deducted from the cost of restoring the property in determining the amount allowed. Conversely, if after the repairs have been effected, the value of the property is appreciably less than that prior to the accident or incident, the difference in value will be added to the cost of repairs in determining the amount allowed. However, no award in excess of the amount claimed may be made.

(b) In determining the amount allowable for repairs, the permanency of parts replaced will be considered and deductions made for depreciation as appropriated. Thus, an automobile tire is not expected to last through the life of a vehicle so that when a tire threefourths worn is replaced with a new tire, the amount allowable is onefourth of the cost of the new tire. The same principle applies to batteries and other items of equipment or accessories during relatively short wearout periods. However, no allowance for depreciation is made in replacing parts, such as fenders, bumpers, radiators, which normally would last through the life of the vehicle.

(c) Deprivation of use of property (including motor vehicles) is allowable

as an item of damages, but only in those cases where the claimant has sustained legally provable damages. Towing charges are also allowable items of damage. However, interest,

cost of preparation of claim and of securing supporting evidence, inconvenience, and similar items are not property allowable items of damage.

13-106 0-83--19

Sec.

571.1

PART 571-RECRUITING AND ENLISTMENTS

General.

571.2 Basic qualifications for enlistment. 571.3 Waivable enlistment criteria including civil offenses.

571.4 Periods of enlistment. 571.5 Enlistment options.

AUTHORITY: Sec. 3012, 70A Stat. 157; 10 U.S.C. 3012.

SOURCE: 44 FR 9745, Feb. 15, 1979, unless otherwise noted.

§ 571.1 General.

(a) Purpose. This part gives the qualifications for men and women enlisting or reenlisting in the Regular Army (RA). The procedures simplify and standardize the processing of applicants through the recruiting service. The applicant's ability to meet all requirements or exceptions will determine eligibility. This includes obtaining prescribed waivers.

(b) Definitions. The following definitions apply to this part:

(1) Enlistment. The first voluntary enrollment in the Regular Army as an enlisted member.

(2) Reenlistment. The second or subsequent voluntary enrollment in the Regular Army as an enlisted member.

(3) United States Army. The Regular Army, Army of the United States (AUS), Army National Guard (ARNG) of the United States, and the United States Army Reserve (USAR).

(4) Regular Army (RA). The permanent Army, which is a major component of the United States Army, as used in this part distinguishes it from the other major components.

(5) Prior Service (PS). One or more days of completed active duty in a regular component or of extended active duty in a Reserve component of any of the Armed Forces, in the Army National Guard or Army Reserve programs of active duty for training pursuant to the Reserve Forces Act of 1955; in the Reserve Enlistment Program of 1963; or in similar programs of any of the Army Forces. Short periods of active duty for training in any other

programs will not meet prior service requirements in this part.

(6) Non-Prior Service (NPS). No previous service in any of the Armed Forces of the United States, or previous service without completion of 1 or more days of active duty or active duty for training as given in paragraph (b)(5) of this section.

(7) Within 3 months of separation. The 3 month's period when an individual must reenlist to be eligible for certain benefits. This period begins on the day following separation and ends with the date of the month, 3 months later, that corresponds to the separation date. When there is no corresponding date in the 3rd month, the terminating date will be the last day of that month. For example, an individual separated on 31 January has a terminating date of 30 April.

(8) Major commanders. The following have commanding generals, United States Army Forces Command (FORSCOM); United States Army Training and Doctrine Command (TRADOC); US Army Military District of Washington (MDW); US Army Materiel Development and Readiness Command (DARCOM); US Army Intelligence and Security Command (INSCOM); US Army Communications Command (ACCOM); US Army Criminal Investigation Command (CIDC); US Army Health Services Command (HSC); Military Traffic Management Command (MTMC); Commander in Chief, US Army Europe and Seventh Army (CINCUSAREUR): Eighth US Army; and US Army Japan (USAJ).

(9) Dependent. The term "dependent" means:

(i) A spouse. This does not include a common law spouse unless so judged by a civil court.

(ii) Any unmarried natural (legitmate or illegitimate) or adopted child of the applicant if the child is under 18 year of age, whether or not the applicant has custody of the child, and regardless of who has guardianship of the child. If the applicant's child has been adopted by another person (Final adoption decree issued and effective) then the child is not the applicant's