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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 opportunity. The statement shall be forwarded to the superior exercising general court-martial 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 I 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.

In the absence of newly discovered evidence, an adjudication pursuant to the regulations in this part shall be final except as to the Secretary of the Navy (Judge Advocate General). In the event of newly discovered evidence deemed sufficient to warrant reopening the matter, further investigation

shall be conducted by the commanding officer and forwarded with recommendations to the Judge Advocate General.

§ 755.10 Effect of court-martial proceedings.

Administrative action under these regulations 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 these regulations. 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 damage 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.

[36 FR 14740, Aug. 11, 1971]

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ty is waived by the Federal Tort Claims Act, therefore, the United States remains ultimately liable for payment of non-appropriated-fund-activity claims. It is policy to pay these claims from non-appropriated funds and to process them primarily through non-appropriated-fund-activity claims procedures, using as guidelines the regulations and statutes applicable to similar appropriated-fundactivity claims.

(b) Claims arising out of the operation of non-appropriated-fund activities, in and outside the United States, shall be investigated in accordance with the procedures for investigating similar claims against appropriatedfund activities. All claims should be submitted to the command having cognizance over the non-appropriatedfund activity involved.

§ 756.2 Notification.

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Many non-appropriated-fund vites 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 non-appropriated-fund activities within their cognizance shall carry liability insurance or become self-insurers, in whole or in part. When the operations of non-appropriated-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. When the activity is self-insured, the self-insurance fund shall be notified of the potential liability.

§ 756.3 Processing claims.

(a) Responsibility for processing. The primary responsibility for the negotiation and settlement of claims resulting from non-appropriated-fund activities is normally with the non-appropriated-fund activity and its insurer. The standard procedures described in Part 750 of this chapter for investigating and processing claims must, however, be followed in order to protect the residual liability of the United States.

(b) Negotiations. (1) When a non-appropriated-fund activity is insured, the insurer will normally conduct negotiations with claimants. The appropriate Naval adjudicating authority has the responsibility of monitoring the negotiations conducted by the insurer. Such monitoring shall be limited to ascertaining that someone has been assigned to negotiate, to obtaining periodic status reports, and to closing out files on settled claims. Any dissatisfaction with the insurer's handling of the negotiations should be referred directly to the Judge Advocate General for appropriate action.

(2) When there is no private insurer and the non-appropriated-fund activity has made no independent arrangements for negotiations, the appropriate Navy adjudicating authority is responsible for conducting negotiations. Under special circumstances, even when there is an insurer, the appropriate Naval adjudicating authority may conduct negotiations, provided the command involved and the insurer agree to it. When an appropriate settlement is negotiated by the Navy, the recommended award will be forwarded to the non-appropriated-fund activity, or its insurer, for payment from nonappropriated funds.

(3) In cases where payment may be authorized under some statute, such as the Foreign Claims Act, but where there is no negligence and neither the non-appropriated-fund activity not its insured is legally responsible, the claim may be considered for payment from appropriated funds or may be referred to the Judge Advocate General for appropriate action.

(c) Denial. Claims resulting from non-appropriated-fund activities may be denied only by the appropriate Naval adjudicating authority, since such a denial is required to begin the 6-month limitation on filing suit under the Federal Tort Claims Act. Claims which have initially been processed and negotiated by a non-appropriatedfund activity or its insurer should not be denied until the activity or its insurer has clearly stated in writing that it does not intend to pay the claim and has elected to defend in court. Claimants shall be notified of a denial in accordance with § 750.7 of this chapter.

§ 756.4 Payment of claims.

(a) Small claims. Any claim not covered by insurance (or if covered by insurance and not paid by the insurer) which can be settled for $100 or less may be adjudicated by the commanding officer of the activity concerned or his designee. The claim will be paid out of funds available to the commanding officer.

(b) Other claims. Claims in excess of $100, for which private insurance is not available and which have been negotiated by the Navy, shall be forwarded to the appropriate headquarters command for payment from nonappropriated funds. Private insurance is usually not available to cover losses which result from some act or omission of a mere participant in a non-appropriated-fund activity. In the event the non-appropriated-fund activity declines to pay the claim, the file shall be forwarded to the Judge Advocate General for determination.

§ 756.5 Claims by employees.

(a) Property. Claims by employees of non-appropriated-fund activities for loss, damage, or destruction of personal property incident to their employment will be processed and adjudicated in accordance with Part 751 of this chapter and forwarded to the appropriate non-appropriated-fund activity for payment from nonappropriated funds.

(b) Personal injury or death of citizens or permanent residents of the United States employed anywhere, or of foreign nationals employed within the United States. The compensation provided by the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 901-950) was extended to provide for employees of non-appropriated-fund activities who suffered injury or death arising out of and in the course of their employment (5 U.S.C. 8171). If there is a substantial possibility that an employee's injury or death is covered by the Longshoremen's and Harbor Workers' Compensation Act, a claim should first be made under that Act since it is the exclusive basis for Government liability for injuries or deaths which are covered (5 U.S.C. 8173).

(c) Personal injury or death of foreign nationals employed outside of the Continental United States. Employees who are not citizens or permanent residents, and who are employed outside of the Continental United States, are protected by private insurance of the non-appropriated-fund activity or by other arrangements (5 U.S.C. 8172). When a non-appropriated-fund activity has neglected to obtain insurance coverage or to make other arrangements, the matter will be processed as a foreign claim, or a Federal Tort Claims Act claim if appropriate, and any award will be paid from nonappropriated funds.

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(1) The Deputy Judge Advocate General; any Assistant Judge Advocate General; the Deputy Assistant Judge Advocate General (Claims);

(2) The Commandants of all naval districts not served by naval legal service offices, and their district judge advocates;

(3) The Officers in Charge of all naval legal service offices, except naval legal service offices in countries where another service has single service responsibility.

(4) The Officers in Charge of U.S. Sending State Offices; and

(5) Such other officers as may be designated by the Judge Advocate General.

(c) Action JAG designees. "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

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§ 757.2 Authority of the Judge Advocate General and JAG designees.

(a) Assertion of claim. When the Department of the Navy furnishes medical care, the Judge Advocate General or the action JAG designee shall determine (1) whether a third-party claim (i.e., a claim under the Act) is possible against a person who is legally liable for causing the injury or disease treated, and (2) whether a Government claim is possible under workmen's compensation or under medicalpayments insurance (e.g., in all automobile accident cases). If either circumstance exists, 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-incharge 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 or any cognizant JAG designees serving in the Office of the Judge Advocate General may accept payment for the full amount of any claim and execute a release therefor.

(2) Any cognizant JAG designee, after considering the factors set forth in § 757.5, may compromise or waive any claim not in excess of $20,000 and issued a release thereof.

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

(d) Potential Value of Claims. When settlement, compromise or waiver is imminent and the final NAVJAG 5890/12 has not been filed, JAG designees are authorized to estimate the potential value of the claim and to take appropriate action if the potential value comes within their settlement authority.

(e) Recomputation of Claims. JAG designees are authorized to recompute the amount of claims reported on form NAVJAG 5890/12 in accordance with the standards of "Tolliver v. Shumate," 151 W. Va. 105, 150 S.E. 2d 579 (1966), and "United States v. Jones," 264 F. Supp. 11 (1967). The information contained on form NAVJAG 5890/13, the particular practices of the hospital involved and the known facts of the case will be considered. Hospitalization periods may be subtracted from the claim when such hospitalization was unnecessary, (such as where a patient was given leave, liberty, or was awaiting assignment to new duties) or may be charged at the reduced rate of an outpatient visit for each day of hospitalization where medical treatment was actually rendered, but hospitalization in a civilian hospital would have been unnecessary or inappropriate. If, upon recomputation, the claim is within the authority of the JAG designee making such recomputation, the claim may be acted upon by that JAG designee.

(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, (2) a suit has been instituted against the United States by the third party, or (3) a suit has been instituted against the individual who received or is receiving the medical care described above, and for whose negligence the United States may be held liable.

(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 interests of the United States; or (3) where such action is authorized by the Judge Advocate General.

[41 FR 26867, June 30, 1976]

§ 757.3 Report of care and treatment.

(a) NAVJAG Form 5890/12. NAVJAG Form 5890/12 (see Appendix section A-24-d)1 shall be used by all Navy medical facilities to report the value of medical care furnished to any patient (1) when a third-party may be legally liable for causing the injury or disease treated, or (2) when a Government claim is possible under workmen's compensation or under medicalpayments insurance (e.g., in all automobile accident cases).

(b) Computations. NAVJAG Form 5890/12 shall be computed by using the rates set out in Appendix A-24-c. 1 All computations by medical personnel and any necessary recomputations will be made pursuant to § 757.2(g).

(c) Submission of NAVJAG Form 5890/12. The NAVJAG Form 5890/12 shall be submitted to the action JAG designee at the following times:

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