Claims Against the United States, 46260-46303 [06-6789]

Agencies

• DEPARTMENT OF DEFENSE
• Department of the Army
• Army Department

[Federal Register Volume 71, Number 155 (Friday, August 11, 2006)]
[Proposed Rules]
[Pages 46260-46303]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-6789]



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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

Federal Register / Vol. 71, No. 155 / Friday, August 11, 2006 / 
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: https://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 https://
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, https://
www.apd.army.mil, within a few months of the date of this Federal 
Register publication of 32 CFR part 536. Users are encouraged to 
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

    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)

    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.

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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.
536.61 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.
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).
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 .
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.

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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.
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.

    (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.
    (C) An Appendix to 28 CFR part 14 sets forth certain delegations of 
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).
    (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).
    (c) Fund source authority for tort claims paid by Financial 
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

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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.

    (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.
    (c) U.S. Army Claims Service. USARCS, a command and component of 
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:
    (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.
    (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.
    (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.
    (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

[[Page 46264]]

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.
    (c) Develop a system that has a high level of proficiency, so that 
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.
    (c) Investigate, process and settle claims beyond field office 
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.
    (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).
    (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.
    (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

[[Page 46265]]

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.
    (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.
    (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.
    (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.
    (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

[[Page 46266]]

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.
    (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.
    (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.
    (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.
    (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 
(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.
    (c) Ensure that claims personnel are adequately trained, and 
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.

[[Page 46267]]

    (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.

    (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.
    (c) Designate claims officers to investigate claims generated by 
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).
    (c) Assist TJAG, through the Commander USARCS, in implementing the 
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.
    (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.
    (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.
    (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.
    (c) Claims directives and plans. (1) Directives. Two copies of 
command claims directives will be furnished to

[[Page 46268]]

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.
    (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.
    (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.
    (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.
    (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).
    (c) Claims assistance. In the vicinity of a field exercise, 
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)).
    (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

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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