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the claimant by the most practicable means, that:

(1) In order for a claim to be cognizable under Article 139, UCMJ, the claimant must be within the provisions of § 750.50.

(2) A claim shall be presented, if practicable, in triplicate. It should contain a statement setting forth the amount of the claim, insurance coverage, and available detailed facts and circumstances surrounding the incident from which the claim arose. When there is more than one claimant as a result of a single incident, each such claimant must file a claim separately and individually. The claim shall be personally signed by the claimant or his duly authorized agent or representative. The appropriate portions of § 750.52 set forth additional information and evidence which ordinarily should be supplied by a person making claim for damage or loss of property.

(3) Such claim must be submitted to the investigating body as expeditiously as possible and not later than 30 days from the date of this advice.

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(a) General. The procedure for redress of injuries to property (Article 139, UCMJ) is accomplished by the use of a formal investigation or a court of inquiry. The claim is the subject of inquiry by either of these bodies, and the rules governing the appropriate type of investigation are applicable.

(b) Fact-finding body. The fact-finding body appointed to investigate a complaint under Article 139, UCMJ shall consist of from one to three commissioned officers. Subject to the provisions of the regulations in this part, pertinent portions of §§ 750.58 and 750.59 respecting matters to be ascertained in investigating property damage are applicable. The claim of the owner or custodian of the property involved shall be made an enclosure to the record of proceedings of the fact-finding body.

(c) Statutory requirements and powers. Under the authority of Article 139, UCMJ, witnesses may be summoned to testify at the investigation in the same manner as for courts-martial. See paragraph 115, MCM. However, when an investigation is convened to inquire into other matters in addition to investigating a complaint under Article 139, UCMJ, the power of subpoena shall not be used to compel the attendance of witnesses

whose testimony is not directly related to the Article 139 claim. Witnesses before such investigations shall be examined on their oath or affirmation. Depositions, documents, and other evidence may be received in evidence.

(d) Rights of an alleged offender. An alleged offender shall, if practicable, be accorded the rights of a party. See Subpart J of Part 719 of this subchapter. If such rights are not accorded an alleged offender, and such rights have not been waived by him, he shall, prior to any charge being made against his pay, be afforded the opportunity to inspect the record of proceedings or a copy thereof. He shall, in such a case, submit a signed statement in regard thereto or to the efect that he does not desire to make such a statement. If, by reason of unauthorized absence of other factors, the rights of a party cannot be aiforded to an alleged offender, a full and complete report of the reasons therefor shall be included in the record of proceedings. If, at the time of the convening of an Article 139 investigation, the identity of an offender is unknown, the investigation shall proceed with the subject matter of the inquiry. However, as soon as the identity of the offender becomes known, such person shall be called before the investigation (unless such action is impractical by reason of unauthorized absence or other factors), designated as a party to the investigation, and accorded his rights as such. Such proceedings and any waiver on the part of the offender shall be recorded verbatim. A person in an unauthorized absence or desertion status shall, while in such status, be considered as having waived his rights as a party to the investigation. Upon termination of the unauthorized absence or desertion, such person shall, if practicable, be accorded the rights of a party as to any portion of the investigation which has not then been completed.

(e) Measure of damages. The inquiry or investigation is to be guided by the general claims regulations (Part 750 of this subchapter) in determining the measure of damages as a basis for recommending assessment.

(f) Findings. The investigation shall make findings of fact as to the necessary elements set forth in these regulations pertaining to the validity of the claim under consideration and shall state its findings of fact and opinions as appropriate, as to the person or persons re

sponsible for the damage concerning which the claim is filed. Using the appropriate measure of damages, it shall determine the amount of damage incurred by the property owner.

(g) Recommendations. The fact-finding body shall make recommendations as to the amount to be assessed and charged against the pay of the responsible party or parties. If more than one person is found to be responsible, recommendations shall be made as to the amount to be assessed against each offender.

(h) Consolidation of investigations. A formal investigation conducted under Article 139, UCMJ may be combined with an investigation required for any other

reason.

§ 755.7 Action to be taken by commanding officer and higher authority where offenders are members of one command.

(a) Action by commanding officer. When all of the offenders are members of the command of the officer who has ordered the investigation, such officer shall determine, in taking action on the record of such investigation, whether the claim is within the provisions of Article 139, UCMJ and the regulations in this part. If he finds that the claim is within such provisions, he shall fix the amount to be assessed against the offender or offenders. Subject to the limitations of § 755.4, charges totaling the amount of damages assessed and approved shall be made in such proportion as may be deemed just upon the pay of those shown to have been principals or accessories.

(b) Review. If the commanding officer has authority to convene a general court-martial, no additional review of the investigation is required as to the redress of injuries to property. If the commanding officer does not have general court-martial jurisdiction, the original of the investigation, with the commanding officer's action thereon approving or disapproving the claim, shall be forwarded to the officer exercising general court-martial jurisdiction over the command. A copy of the report will be filed at the command concerned. Upon receipt by the officer exercising general court-martial jurisdiction, the report, as approved or disapproved, will be reviewed. Such reviewing authority shall place his action on the record and return the record to the commanding officer

who, after noting his order or other actions thereon, shall forward it to the Judge Advocate General via any other appropriate commands. The final action of a commanding officer either directing a charge against the pay of an offender or denying the claim, shall be consistent with the reviewing authority's action. The claimant and offender or offenders shall be informed of such final order. Any determination that the claim is invalid or that no members of the command were pecuniarily responsible shall be communicated promptly to the claimant.

(c) Charge against pay. The amount ordered by the commanding officer shall, as provided in the Navy Comptroller Manual, be charged against the pay of the offender and the amounts so collected will be paid to the claimant. The amount charged in any single month against the pay of an offender under Article 139, UCMJ shall not exceed onehalf of the basic pay of the offender. The basic pay of an offender shall be as defined in paragraph 126h (2), Manual for Courts-Martial. The action by the commanding officer in ordering the assessment against the pay of an offender shall be conclusive on any disbursing officer for payment by him to the claimant of the damages assessed, approved, charged, and collected.

§ 755.8 Action to be taken by commanding officer and higher authority where offenders are members of different commands.

(a) Action by common superior. Where the offenders are members of different commands the investigation or investigations conducted under Article 139, UCMJ shall be forwarded, if practicable, to the common superior who exercises general court-martial jurisdiction. In such circumstances, a commanding officer who ordered an investigation shall not make charges against the pay of an offender, but shall make recommendations in this regard. If an alleged offender was neither accorded the rights of a party nor subsequently afforded the right to inspect the investigative report. and make a statement thereon, a copy of the report shall be forwarded to such offender for his inspection and his statement. This statement may set forth the member's version of the incident or it may merely reflect the fact that he does. not desire to avail himself of the oppor

tunity. The statement shall be forwarded to the superior exercising general courtmartial jurisdiction who is to adjudicate the claim. The common superior commander shall fix the amount, if any, to be assessed against the offender or offenders and direct the appropriate commanding officers to take action accordingly. See § 755.7 (b) and (c). The common superior shall forward the record, with his action and all statements appended, to the Judge Advocate General via appropriate commands.

(b) Forwarding to SECNAV (JAG). Where it is not practicable or possible to carry out the procedure prescribed in paragraph (a) of this section, the investigation or investigations shall be forwarded to the Secretary of the Navy (Judge Advocate General) who will take action in the matter. Commanding officers, in such a situation, are not to make charges against the pay of an offender until directed by the Secretary of the Navy (Judge Advocate General). § 755.9

Reconsideration.

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Administrative action under the regulations in this part is separate and distinct from and is not affected by any disciplinary action against the offender; consequently, a person may be tried and punished for violation of the UCMJ without regard to proceedings under the regulations in this part. The two proceedings, one disciplinary and the other administrative, are legally independent of each other and action in one proceeding is not determinative in the other; the court-martial is of a criminal nature and the assessment of damages is of a civil nature. Acquittal or conviction of the alleged offender by court-martial is evidence but is without independent controlling effect upon the proceedings under Article 139, UCMJ or approval or denial of a claim thereunder.

PART 756-NONAPPROPRIATEDFUND CLAIMS REGULATIONS

Sec.

756.1

756.2

756.3

General.

Insurance.

Settlement by insurer.

756.4 Payment of claims. 756.5 Reports.

AUTHORITY: The provisions of this Part 756 issued under sec. 5031, 70A Stat. 278, as amended, sec. 133, 76 Stat. 517, secs. 301, 8171-8173, 80 Stat. 379, 555-556; 5 U.S.C. 301, 8171-8173, 10 U.S.C. 5031.

SOURCE: The provisions of this Part 756 appear at 35 F.R. 13111, Aug. 18, 1970, unless otherwise noted.

NOTE: This part is Chapter XXIII of the Manual of the Judge Advocate General of the Navy.

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Claims arising out of the operation of nonappropriated fund activities, in and outside the United States, shall be investigated in accordance with the procedures for investigating similar claims against appropriated fund activities. All claims should be submitted to the command having cognizance over the nonappropriated fund activity involved. Claims arising out of the operations of the Navy Exchange System, which is under the Navy Supply Systems Command, shall be processed in accordance with the provisions of the Navy Exchange Manual and therefore are not covered in this Manual. § 756.2

Insurance.

Many nonappropriated fund activities carry commercial insurance to protect them from claims for property damage and personal injury attributable to their operations. The Commandant of the Marine Corps, the Chief of Naval Personnel, and the Naval Supply Systems Command determine whether nonappropriated fund activities within their cognizance shall carry liability insurance or become self-insurers, in whole or in part. When the operations of nonappropriated fund activities result in property damage or personal injury, the insurance carrier, if any, should be given written notification immediately. Notification should not be postponed until a claim is filed. § 756.3 Settlement by insurer.

In those cases where the insurer for the nonappropriated fund activity effects a settlement with a claimant and obtains appropriate releases, processing of the

claim by naval authorities is unnecesAsary. A copy of the release should be obtained and filed with the investigative report.

F

§ 756.4 Payment of claims.

(a) Small claims. Any claim for $50 or less not covered by insurance (or if covered by insurance and not paid by the insurer) shall be adjudicated by the commanding officer of the activity concerned or his designee. The claim may be paid out of nonappropriated funds available to the commanding officer.

(b) Where no insurance is carried or where insurance coverage is denied. Claims in the amount of $5,000 or less adjudicated and approved by a naval district commandant or his district judge advocate, shall be forwarded via the Judge Advocate General to the Commandant of the Marine Corps or to the Chief of Naval Personnel, as appropriate, for payment out of nonappropriated funds. Claims in excess of $5,000 shall be forwarded to the Judge Advocate General for adjudication and referral to the Commandant of the Marine Corps or Chief of Naval Personnel for paymer.t out of nonappropriated funds.

(c) Settlement under international agreement. Where claims have been settled by a foreigr. country pursuant to treaties or agreements with the United States, statements and pertinent data indicating the portion of the claims attri.utable to nonappropriated fund activities of the Navy shall be transmitted promptly to the Judge Advocate General for referral to the appropriate command, bureau, or office for payment. § 756.5

Reports.

(a) Compromised claims and small claims. In every instance where a claim has been settled as provided in §§ 756.3 and 756.4, a brief report shall be forwarded to the district judge advocate of the naval district or to the Office of the Judge Advocate General for claims arising in areas not within the jurisdiction of a naval district.

(b) Claims disputed by insurer. If responsibility is disputed by an insurer, or if settlement is not reached, a report of the circumstances, including the name of the insurer, shall be forwarded to the Judge Advocate General for referral to the Commandant of the Marine Corps or to Chief of Naval Personnel, as appropriate. A copy of all correspondence shall be provided the district judge advocate

50-075-71- -47

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Geographical

757.10

757.11

Determination, assertion, and collec

Statistical reports.

limitations-single

service responsibility.

Rates for medical care provided in
Federal hospitals.

Claims under the act involving other
claims.

757.12 Reference material.

AUTHORITY: The provisions of this Part 757 issued under sec. 5031, 70A Stat. 273, as amended, 76 Stat. 593-594, sec. 301, 80 Stat. 379; 5 U.S.C. 301, 10 U.S.C. 5031, 42 U.S.C. 2651-2653, E.O. 11060; 3 CFR, 1959-1963 Comp., p. 651, 28 CFR Part 43, and Bureau of the Budget notices (28 F.R. 11510, 12104, 29 F.R. 12482, 30 F.R. 16220, 31 F.R. 10754).

SOURCE: The provisions of this Part 757 appear at 35 F.R. 13112, Aug. 18, 1970, unless otherwise noted.

NOTE: This Part 757 is Chapter XXIV of the Manual of the Judge Advocate General of the Navy.

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For purposes of this part:

(a) "Medical care" includes hospital, medical, surgical, or dental care and treatment, and the furnishing of prostheses and medical appliances.

(b) "JAG designees" are: Commandants of all Naval Districts; District Judge Advocates; Commander, U.S. Naval Forces Marianas and his Staff Judge Advocate; Commander, U.S. Naval Forces, Iceland; Officer in Charge, U.S. Sending State Office for Italy; Officer in Charge, U.S. Sending State Office for Australia; Deputy Judge Advocate General; any Assistant Judge Advocate General; the Deputy Assistant Judge Advocate General (Litigation and Claims); and the Director, Litigation and Claims Division.

(c) "Action JAG designees" are the JAG designees in whose area the incident giving rise to the claim occurred. This is a general definition and should

not be considered applicable in cases where the best interests of the Government would be served by transferring the case to another JAG designee; e.g., where the tort feasor has moved from or resides in a place other than the place where the incident occurred. When a case is transferred from one JAG designee to another, the responsibility for conducting an investigation and making an initial assertion remains with the JAG designee in whose area the incident giving rise to the claim occurred.

(d) "The Act" means the Medical Care Recovery Act (42 U.S.C. 2651-53). § 757.2 Authority of the Judge Advocate General and JAG designees.

(a) Assertion of claim. When the Department of the Navy is responsible for furnishing medical care, the Judge Advocate General or the action JAG designee shall determine whether medical care was or will be furnished for an injury or disease caused under circumstances entitling the United States to recover under the Act. If it is so determined, the action JAG designee shall assert a claim for the reasonable value of such care and treatment. When an accident occurs at a place where the naval service does not have a command, unit, or activity conveniently located for conducting an investigation, the commanding officer or officer in charge having immediate responsibility for making the investigation may request assistance from the commanding officer or officer in charge of any other command, unit or activity within the Department of Defense. Such assistance may take the form of a complete investigation of the accident or incident, or it may cover only part of the investigation. In a reciprocal situation where the commanding officer or officer in charge of any other command, unit, or activity within the Department of Defense requests assistance from any naval command, unit or activity, the latter should honor the request. If a complete investigation is requested, the report shall be made in accordance with the regulations of the service actually making the investigation. These investigations will normally be conducted without reimbursement for per diem, mileage, or other expenses incurred by the investigating activity.

(b) Authority of JAG and certain JAG designees. (1) The Judge Advocate General and JAG designees serving in the Office of the Judge Advocate Gen

eral may accept payment for the full amount of any claim and execute a release therefor.

(2) A claim not in excess of $20,000 may be compromised or settled, and a release executed therefor by either the Judge Advocate General or the Deputy Judge Advocate General.

(3) A claim not in excess of $10,000 may be compromised or settled, and a release executed therefor by any Assistant Judge Advocate General.

(4) A claim not in excess of $7,500 may be compromised or settled, and a release executed therefor by the Deputy Assistant Judge Advocate General (Litigation and Claims).

(c) Authority of other JAG designees. All other JAG designees are authorized to (1) accept payment for the full amount of a claim and execute a release therefor, or (2) compromise or settle and execute a release of any claim not in excess of $5,000.

(d) Waiver. The Judge Advocate General, the Deputy Judge Advocate General, or any JAG designee when specifically authorized by either of the foregoing, may waive and release any claim not in excess of $20,000, in whole or in part, either for the convenience of the Government or if it is determined that collection would result in undue hardship on the person who suffered the injury or disease giving rise to the claim.

(e) Claims exceeding $20,000. Claims in excess of $20,000 may be comprised, settled, and waived only with the prior approval of the Department of Justice.

(f) Limitations. The authority set forth in this section shall not be exercised in any case in which (1) the claim of the United States has been referred to the Department of Justice or (2) a suit has been instituted by the third party against the United States or against the individual who received or is receiving the medical care described above, and the suit arises out of the occurrence which gave rise to the third-party claim of the United States.

(g) Restrictions on contact with Department of Justice and United States Attorneys. JAG designees, except those serving in the Office of the Judge Advocate General, shall refrain from dealing directly with the Department of Justice or U.S. Attorneys except in those cases (1) where the Department of Justice or a U.S. attorney has assumed cognizance over the case; (2) where circumstances dictate immediate action to protect the

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