When you are the victim of an accident resulting from a soldier in one of the military branches, you must follow the proper Federal Procedures for making a claim. Examples of Military Negligence can be Medical-Malpractice, Jet aircraft accidents including F-18, F-16, F-22 Raptors resulting in civilian and or military casualties, car accidents resulting in civilian accidents during recruiting or on the job travel, wrongful death, and other negligence actions that result in injury to non-military persons. Below you will find the law as prescribed by Title 32 of the US Code. Call Benson and Bingham if you or a loved one has suffered a loss due to the Negligence of the U.S. Armed Forces including the Army, Navy, Air Force, Marines, National Guard, and/or Home Land Security.
750.4 Claims: In general.
(a) Claims against the United States. Claims against the United States shall receive prompt and professional disposition. Every effort will be made to ensure an investigation is thoroughly and accurately completed, the claimant’s allegations evaluated promptly, and where liability is established, a check issued as quickly as possible to prevent further harm to a meritorious claimant. Similarly, claims not payable will be processed promptly and the claimant advised of the reasons for the denial.
(b) Claims in favor of the United States. Potential claims in favor of the United States will be critically evaluated and, where appropriate, promptly asserted and aggressively pursued.
(c) Assistance to claimants. Claimants or potential claimants who inquire about their rights or the procedures to be followed in the resolution of their claims should be referred to the Tort Claims Unit Norfolk. The Tort Claims Unit Norfolk will provide claims forms, advise where the forms should be filed, and inform the requester of the type of substantiating information required. Claims officers may provide advice on the claims process but shall not provide advice or opinions about the merits or the wisdom of filing a particular claim. While claims officers have a responsibility to provide general information about claims, they must consider 18 U.S.C. 205, which makes it a crime for an officer or employee of the United States to act as an agent or an attorney in the prosecution of any claim against the United States.
[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53418, Sept. 19, 2007]
750.5 Claims: Proper claimants.
(a) Damage to property cases. A claim for damage to, or destruction or loss of, property shall be presented by the owner of the property or a duly authorized agent or legal representative. “Owner” includes a bailee, lessee, or mortgagor, but does not include a mortgagee, conditional vendor, or other person having title for security purposes only.
(b) Personal injury and death cases. A claim for personal injury shall be presented by the person injured or a duly authorized agent or legal representative, or, in the case of death, by the properly appointed legal representative of the deceased’s estate or survivor where authorized by State law.
(c) Subrogation. A subrogor and a subrogee may file claims jointly or separately. When separate claims are filed and each claim individually is within the Tort Claims Unit Norfolk’s adjudicating authority limits, they may be processed by the Tort Claims Unit, even if the aggregate of such claims exceeds the Tort Claims Unit’s monetary authority. However, if the aggregate of the claims exceeds the sum for which approval of the Department of Justice (DoJ) is required, currently $200,000.00 under the Federal Tort Claims Act, then the Tort Claims Unit Norfolk must obtain DoJ approval via the Office of the Judge Advocate General, Claims and Tort Litigation Division, before the claims may be settled.
(d) Limitation on transfers and assignment. All transfers and assignments made of any claim upon the United States, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, are absolutely null and void unless they are made after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof. 31 U.S.C. 203. This statutory provision does not apply to the assignment of a claim by operation of law, as in the case of a receiver or trustee in bankruptcy appointed for an individual, firm, or corporation, or the case of an administrator or executor of the estate of a person deceased, or an insurer subrogated to the rights of the insured.
[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53418, Sept. 19, 2007]
750.6 Claims: Presentment.
(a) Written demand and Standard Form 95. A claim shall be submitted by presenting a written statement with the amount of the claim expressed in a sum certain, and, as far as possible, describing the detailed facts and circumstances surrounding the incident from which the claim arose. The Claim for Damage or Injury, Standard Form 95, shall be used whenever practical for claims under the Federal Tort and Military Claims Acts. Claims under the Personnel Claims Act shall be submitted on DD Form 1842.2 The claim and all other papers requiring the signature of the claimant shall be signed by the claimant personally or by a duly authorized agent. If signed by an agent or legal representative, the claim shall indicate the title or capacity of the person signing and be accompanied by evidence of appointment. When more than one person has a claim arising from the same incident, each person shall file a claim separately.
2 The Claim for Damage or Injury, Standard Form 95 and the DD Form 1842 are available at the Web site of the United States Navy Judge Advocate General’s Corps at http://www.jag.navy.mil.
(b) To whom submitted. Claims under the Federal Tort and Military Claims Acts should be submitted to the Tort Claims Unit Norfolk at the address provided in Sec. 750.3 above, or the Office of the Judge Advocate General, Claims and Tort Litigation Division, 1322 Patterson Avenue, SE., Suite 3000, Washington Navy Yard, Washington, DC 20374–5066. Claims may also be submitted to the commanding officer of the Navy or Marine Corps activity involved if known, the commanding officer of any Navy or Marine activity, preferably the one nearest to where the accident occurred, or the local Naval Legal Service Command activity. The claim should be immediately forwarded to the Tort Claims Unit Norfolk.
[72 FR 53418, Sept. 19, 2007]
750.7 Claims: Action by receiving command.
(a) Record date of receipt. The first command receiving a claim shall stamp or mark the date of receipt on the letter or claim form. The envelope in which the claim was received shall be preserved.
(b) Determine the military activity involved. The receiving command shall determine the Navy or Marine Corps activity most directly involved with the claim—usually the command where the incident is alleged to have occurred—and forward a copy of the claim to that activity. The original claim (and the transmittal letter, if a copy is forwarded to a more appropriate activity) should immediately be sent to the Tort Claims Unit Norfolk.
(c) Initiate an investigation. A JAGMAN Litigation Report Investigation shall be commenced immediately by the command most directly involved with the claim. Once the investigation has been completed, an advance copy shall be forwarded by the convening authority to the Tort Claims Unit Norfolk. Waiting until endorsements have been obtained before providing a copy of the investigation to the Tort Claims Unit Norfolk is neither required nor desirable. The facts of the incident must be made known to cognizant claims personnel as soon as possible.
[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53419, Sept. 19, 2007]
750.8 Claims: Responsibility of the Tort Claims Unit Norfolk.
(a) Reviewing prior actions. The adjudicating authority (Tort Claims Unit Norfolk) determines whether an adequate investigation has been conducted, whether the initial receipt date is recorded on the face of the claim, and whether all holders of the investigation, if completed, are advised of the receipt of the claim.
(b) Determining the sufficiency of the claim. The claim should be reviewed and a determination of its sufficiency made. If the claim is not sufficient as received, it shall be immediately returned to the party who submitted it along with an explanation of the insufficiency. This does not constitute denial of the claim. The claim shall not be considered “presented” until it is received in proper form.
(c) Adjudicating the claim. (1) The Tort Claims Unit Norfolk shall evaluate and either approve or disapprove all claims within its authority, except where the payment of multiple Federal Torts Claims Act claims arising from the same incident will exceed $200,000.00 in the aggregate and thereby require approval of DoJ. In this latter instance, the Torts Claims Unit Norfolk shall contact the Office of the Judge Advocate General, Claims and Tort Litigation Division (OJAG Code 15).
(2) The Tort Claims Unit Norfolk shall evaluate and, where liability is established, attempt to settle claims for amounts within its adjudicating authority. Negotiation at settlement figures above the Tort Claims Unit Norfolk’s payment limits may be attempted if the claimant is informed that the final decision on the claim will be made at a higher level.
(3) If a substantiated claim cannot be approved, settled, or compromised within the settlement authority limits of the Tort Claims Unit Norfolk, the Tort Claims Unit Norfolk shall contact OJAG Code 15 to seek additional settlement authority. To obtain the additional settlement authority, the following materials shall be forwarded to OJAG Code 15:
(i) A letter of transmittal containing a recommendation on resolution of the claim.
(ii) A memorandum of law containing a review of applicable law, an evaluation of liability, and a recommendation on the settlement value of the case. This memorandum should concentrate on the unusual aspects of applicable law, chronicle the attempts to resolve the case, provide information about the availability of witnesses, and outline any other information material to a resolution of the claim, i.e. , prior dealings with the claimant’s attorney, local procedural rules, or peculiarities that may make trial difficult. The memorandum should be tailored to the complexity of the issues presented and provide any expert opinions that have been obtained in the case by the Navy or the claimant.
(d) Preparing litigation reports. The Tort Claims Unit Norfolk will prepare a litigation report when a lawsuit is filed and the complaint is received. The report is sent directly to the DoJ official or the U.S. Attorney having cognizance of the matter. The report is a narrative summary of the facts upon which the suit is based and has as enclosures the claims file and a memorandum of law on the issues presented. A copy of the report and all enclosures should be sent to the Judge Advocate General (OJAG Code 15).
[72 FR 53419, Sept. 19, 2007]
750.9 Claims: Payments.
Claims approved for payment shall be expeditiously forwarded to the disbursing office or the General Accounting Office depending on the claims act involved and the amount of the requested payment. Generally, payment of a Federal tort claim above $2,500.00 requires submission of the payment voucher to the General Accounting Office. All other field authorized payment vouchers are submitted directly to the servicing disbursing office for payment.
750.10 Claims: Settlement and release.
(a) Fully and partially approved claims. When a claim is approved for payment in the amount claimed, settlement agreement may not be necessary. When a federal tort, military, or non-scope claim is approved for payment in a lesser amount than that claimed, the claimant must indicate in writing a willingness to accept the offered amount in full settlement and final satisfaction of the claim. In the latter instance, no payment will be made until a signed settlement agreement has been received.
(b) Release. (1) Acceptance by the claimant of an award or settlement made by the Secretary of the Navy or designees, or the Attorney General or designees, is final upon acceptance by the claimant. Acceptance is a complete release by claimant of any claim against the United States by reason of the same subject manner. Claimant’s acceptance of an advance payment does not have the same effect.
(2) The claimant’s acceptance of an award or settlement made under the provisions governing the administrative settlement of Federal tort claims or the civil action provisions of 28 U.S.C. 1346(b) also constitutes a complete release of any claim against any employee of the Government whose act or omission gave rise to the claim.
[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53419, Sept. 19, 2007]
750.11 Claims: Denial.
A final denial of any claim within this chapter shall be in writing and sent to the claimant, his attorney, or legal representative by certified or registered mail with return receipt requested. The denial notification shall include a statement of the reason or reasons for the denial. The notification shall include a statement that the claimant may:
(a) If the claim is cognizable under the Federal Tort Claims Act, file suit in the appropriate United States District Court within 6 months of the date of the denial notification.
(b) If the claim is cognizable under the Military Claims Act, appeal in writing to the Office of the Judge Advocate General, Claims and Tort Litigation Division within 30 days of the receipt of the denial notification. The notice of denial shall inform the claimant or his representative that is suit is not possible under the act.
[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53419, Sept. 19, 2007]
750.12 Claims: Action when suit filed.
(a) Action required of any Navy official receiving notice of suit. The commencement, under the civil action provisions of the Federal Tort Claims Act (28 U.S.C. 1346(b)), of any action against the United States and involving the Navy, that comes to the attention of any official in connection with his official duties, shall be reported immediately to the Tort Claims Unit Norfolk to take any necessary action and provide prompt notification to the Judge Advocate General. The commencement of a civil action against an employee of the Navy for actions arising from the performance of official duties shall be reported in the same manner.
(b) Steps upon commencement of civil action. Upon receipt by the Judge Advocate General or Tort Claims Unit Norfolk of notice from the DoJ or other source that a civil action involving the Navy has been initiated under the civil action provisions of the Federal Tort Claims Act, and there being no investigative report available at the headquarters, a request shall be made to the commanding officer of the appropriate Naval Legal Service Command activity for an investigative report into the incident. If there is not a completed investigation, the request shall be forwarded to the appropriate naval activity to convene and complete such a report. The commanding officer of the Naval Legal Service Command activity shall contact the Tort Claims Unit Norfolk to determine whether an administrative claim had been filed and, if available information indicates none had, the Tort Claims Unit Norfolk shall advise the Office of the Judge Advocate General (Claims and Tort Litigation Division) immediately.
[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53419, Sept. 19, 2007]
750.13 Claims: Single service responsibility.
(a) The Department of Defense has assigned single-service responsibility for processing claims in foreign countries under the following acts. The service and country assignments are in DODDIR 5515.8 of 9 June 1990.
(1) Foreign Claims Act (10 U.S.C. 2734);
(2) Military Claims Act (10 U.S.C. 2733);
(3) International Agreements Claims Act (10 U.S.C. 2734a and b), on the pro-rata cost sharing of claims pursuant to international agreement;
(4) NATO Status of Forces Agreement (4 UST 1792, TIAS 2846) and other similar agreements;
(5) Medical Care Recovery Act (42 U.S.C. 2651–2653) claims for reimbursement for medical care furnished by the United States;
(6) Nonscope Claims Act (10 U.S.C. 2737), claims not cognizable under any other provision of law;
(7) Federal Claims Collection Act (31 U.S.C. Sections 3701, 3702, and 3711), claims and demands by the United States Government; and
(8) Public Law 87–212 (10 U.S.C. 2736), advance or emergency payments.
(b) Single service assignments for processing claims mentioned above are as follows:
(1) Department of the Army: Austria, Belgium, El Salvador, the Federal Republic of Germany, Grenada, Honduras, Hungary, Korea, Iraq, Kuwait, Latvia, Lithuania, the Marshall Islands, the Netherlands, Poland, Romania, Slovakia, Slovenia and Switzerland, and as the Receiving State Office in the United States under 10 U.S.C. Sections 2734a—2734b and the NATO Status of Forces Agreement, and other Status of Forces Agreements with countries not covered by the NATO agreement. Claims arising from Operation Joint Endeavor, including the former Yugoslavia, Hungary, Slovakia and the Czech Republic, as well as the Rwanda Refugee Crisis Area are also assigned to the Army.
(2) Department of the Navy: Bahrain, Greece, Iceland, Israel, Italy, Spain and the United Arab Emirates.
(3) Department of the Air Force: Australia, Azores, Canada, Cyprus, Denmark, India, Japan, Luxembourg, Morocco, Nepal, Norway, Pakistan, Saudi Arabia, Tunisia, Turkey, the United Kingdom, Egypt, Oman, and claims involving, or generated by, the United States Central Command (CENTCOM) and the United States Special Operations Command (SOCOM), that arise in countries not specifically assigned to the Departments of the Army and the Navy.
(c) U.S. forces afloat cases under $2,500.00. Notwithstanding the single service assignments above, the Navy may settle claims under $2,500.00 caused by personnel not acting within the scope of employment and arising in foreign ports visited by U.S. forces afloat and may, subject to the concurrence of the authorities of the receiving state concerned, process such claims.
[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007]
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