have the State or its insurer reimburse its portion to the United States, or by having each party pay its agreed share directly to the claimant. If the State or its insurer desires to pay less than 50 percent of the actual value of the claim, the procedure set forth in paragraph (b)(4) of this section will be followed.

(4) If there is a remedy against the State and the State refuses to make payment, or there is insurance coverage and the claimant has filed an administrative claim against the United States, forward file with seven-paragraph memorandum to the Chief, US Army Claims Service, including information as to the status of any judicial or administrative action the claimant has taken against the State or its insurer. The Chief, US Army Claims Service, will determine whether the claimant will be required to exhaust his remedy against the State or its insurer, or whether the claim against the United States can be settled without such requirement. If he determines to follow the latter course of action, he will also determine whether an assignment of the claim against the State or its insurer will be obtained and whether recovery action will be taken. The State or its insurer will be given appropriate notification in accordance with State law necessary to obtain contribution or indemnification.

(c) Claims in which there is a demand by the claimant against the Army National Guard tortfeasor individually. The procedures set forth in § 536.9(e) are applicable. However, as an Army National Guard driver acting under the authorities in § 536.141 is not within the provisions of the Driver's Act (28 U.S.C. 2679(b)), and it is thus possible to bring a successful action in a State court, such demands will be closely monitored. If possible, an early determination will be made as to whether any private insurance of the National Guard tortfeasor is applicable. Where such insurance is applicable and the claim against the United States is of doubtful validity, final action will be withheld pending resolution of the demand against the National Guard tortfeasor. If, in the opinion of the claims approving or set

tlement authority, such insurance is applicable and the claim against the United States is payable in full or in a reduced amount, settlement efforts will be made either together with the insurer or singly by the United States as in (b) of this section. Any settlement will not include amounts recovered or recoverable as in § 536.9. If the insurance is not applicable, settlement or disapproval action will proceed without further delay.

§ 536.149 When claim must be presented.

(a) A claim may be settled under §§ 536.140-536.152 only if the incident out of which the claim arose occurred on or after September 13, 1960, and is presented in writing within 2 years after it accrues, except that if the claim accrues in time of war or armed conflict or if such war or armed conflict intervenes within 2 years after it accrues, and if good cause is shown, the claim may be presented not later than 2 years after war or armed conflict is terminated.

(b) As used in this section, a war or armed conflict is one in which any armed force of the United States is engaged. The dates of commencement and termination of any armed conflict shall be established by concurrent resolution of Congress or by determination of the President.

§ 536.150 Where claim must be presented. A claim must be presented to an agency or the instrumentality of Army. However, the statute of limitations is tolled if a claim is filed with another agency of the Government and is forwarded to the Army within 6 months, or if the claimant makes inquiry of the Army concerning his claim within 6 months. Further, the filing of a claim with authorities or personnel of the Army National Guard will not toll the statute of limitations unless the claim is specifically addressed to the US Army. If a claim is received by an official of the Army who is not a claims approving or settlement authority under this regulation, the claim will be transmitted without delay to the nearest approving or settlement authority.

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§ 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 excluded 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 NW. 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 together with his recommendation for action. The appeal will be sustained or denied. All matters submitted by the claimant will be forwarded and considered.

(c) Since an appeal under this authority is not an adversary proceeding, no form of hearing is authorized; however, the Claimant should be afforded a reasonable period of time, upon request, to obtain and submit any additional evidence or written argument for consideration by the appellate authority.

(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.

CLAIMS INCIDENT TO USE OF GOVERNMENT VEHICLES AND OTHER PROPERTY OF THE UNITED STATES NOT COGNIZABLE UNDER OTHER LAW

§ 536.161 Statutory authority. The statutory authority for §§ 536.161-536.171 is contained in the Act of October 9, 1962 (76 Stat. 767, 10 U.S.C. 2737), commonly known as the "Non-Scope of Employment Claims Act."

§ 536.162 Definitions.

The definitions of terms set forth in § 536.3 of this part are applicable to §§ 536.161-536.171 unless otherwise defined herein:

(a) Government installation. A U.S. Government facility having fixed boundaries owned or controlled by the Government.

(b) Vehicle. Includes every description of carriage or other artificial contrivance used, or capable of being used, as a means of transportation on land (1 U.S.C. 4).

§ 536.163 Scope.

Sections 536.161-536.171 have been approved by the Secretary of Defense pursuant to title 10, United States Code, section 2737(h), and prescribes the substantive bases and special procedural requirements for the administrative settlement and payment, in an amount not more than $1,000, of any claim against the United States not cognizable under any other provision

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,