amount less than the full amount claimed, less normal depreciation, if applicable, is recommended due to preexisting damage, inflated estimates of repair, economically repairable property claimed as beyond repair, salvage value of property, or other factors. Specific recommendations shall also include designation of those repair and replacement costs for which written estimates have been waived in accordance with § 751.17 (b) and an explanation of any unusual circumstances justifying nonroutine processing of the claim. Any convenient format can be used for the written report as long as all relevant information is included. Appendix section A-21-g1 shows a sample report. The claims investigating officer will complete and sign part III of DD Form 1842 (see Appendix section A-21c (2)) 1 when investigation of the claim is complete. Report control symbol JAG 5890–2 is assigned to this report.

1

(c) Claims arising from the same incident. A separate report shall be prepared on each claim filed. However, where separate claims arise from the same incident, the claims investigating officer may avoid duplication of effort by completing one detailed report of investigation with all necessary exhibits and documents. He may then incorporate this report and its supporting exhibits by reference. A brief reference to the case (name, case number, date, etc.) in which the detailed report and exhibits may be found shall be included.

(d) Small-claims procedure. When the total amount claimed is $500 or less and the claims investigating officer has determined that all damage or loss claimed was actually incurred, that the amounts claimed are accurate and reasonable, and that the full amount claimed, limited by normal depreciation where applicable, should be allowed, he may complete part II of DD Form 1842 (see appendix section A-21c(3))1 in lieu of making a more detailed written report. Preparation of DD Form 1842, part II, for certification and signature by the adjudicating authority shall constitute a finding that the claim is properly presented and substantiated and a recommendation for payment in full less normal depreciation, if applicable.

(e) Forwarding of claim. For all claims not including enlisted uniform items to be replaced in kind, a claims

1 Filed as part of original document.

investigating officer representing a Navy Personal Property Office or Marine Corps Transportation Office may, with the permission of his Commanding Officer, forward the claim file and claims investigating officer's report directly to the cognizant adjudicating authority. All other claims should be forwarded to the cognizant adjudicating authority via the Commanding Officer.

[38 FR 6040, Mar. 6, 1973, as amended at 39 FR 22422, June 24, 1974]

§ 751.23 Action by commanding officer. Items of military clothing and related articles which have been lost or destroyed incident to service may be replaced in kind. (See §751.24 (e).) The items issued need not be new and unused, provided they are in at least as good condition as the lost or destroyed items immediately prior to the accident or incident causing the loss or damage. If items which were initially issued to the claimant by the Government have been lost or damaged incident to service and replacement in kind cannot be effected, because items are not available for issue, monetary compensation is payable for those items replaced or to be replaced by the claimant at his own expense. The amount allowable normally will be the reasonable cost of replacement with no deduction for depreciation (in order that the claimant will not be required to bear an expense which he would not have incurred if the items had been available for replacement in kind). If military items were initially acquired by the claimant at his own expense, and replacement in kind cannot be effected or the claimant is unwilling to accept replacement in kind because the lost or destroyed items were of a better quality than those available for issue, monetary compensation may be allowed for the loss or destruction of the items involved.

(a) Examination and approval of report. The commanding officer, the chief of staff, chief staff officer, or executive officer, or judge advocate shall review the file and determine whether the findings of the investigating officer are complete, whether the facts and evidence are clearly stated, and whether the recommendation of the investigating officer is supported by adequate evidence. In proper cases he may refer such report back to the investigating officer for further investigation and the inclusion of additional data. The commanding officer, chief of staff, chief staff officer, ex

ecutive officer, or judge advocate shall then by first endorsement to the investigating officer's report, indicate his title and approve the report without qualification or with stated exceptions. In no event will any opinion be expressed to the claimant as to whether his claim will be approved. The endorsement shall express an opinion as to whether the possession of the property by the claimant was reasonable, useful, or proper under the attendant circumstances.

(b) Statement concerning replacement in kind. There shall be included in the first endorsement on the investigating officer's report, and attached to each copy of such report, either a statement that no replacement in kind was made or a list of the items replaced, together with the price of each. This statement may be omitted when replacement in kind is made for all items claimed.

(c) Forwarding of claim. When there has been replacement in kind for all items claimed, the report need not be forwarded beyond the officer authorizing such replacement. In all other cases the investigating officer's report in triplicate, including the original and two copies of the claim plus one copy of each supporting document or paper, shall be forwarded by endorsement to the cognizant adjudicating authority. A list of commands authorized to adjudicate these claims is contained in appendix section A-21(j).1

§ 751.24

Adjudicating authority.

(a) Claims by Navy personnel. The following persons are authorized to adjudicate and authorize payment of personnel claims up to $10,000.00:

(1) The Judge Advocate General (2) The Deputy Judge Advocate General

(3) Any Assistant Judge Advocate General

(4) The Deputy Assistant Judge Advocate General (Litigation and Claims)

(5) Director, Litigation and Claims Division

(6) Head, Personnel Claims Branch, Litigation and Claims Division

(7) Head, Operational Claims and Litigation Branch

(8) Commandants of Naval Districts and their Staff Judge Advocates

(9) Officers in Charge of the Naval Legal Service Offices and Staff Judge Advocates attached to Naval Legal Serv

1Filed as part of the original document.

ice Offices when designated by the office in charge.

(10) Naval Supply Center, Oakland, California Staff Judge Advocate ($5,000)

(11) Other Navy Judge Advocates when designated by the Judge Advocate General

In addition to the above, all Navy judge advocates are hereby designated and authorized to adjudicate and authorize payment of claims up to $1,000 filed under this part. Any naval officer, when personally designated by the Judge Advocate General, is authorized to adjudicate and authorize payment of claims up to $500 filed under this part. Exercise of adjudicating authority is conditioned upon receipt of funding authority and accounting data from the Judge Advocate General, Washington, D.C. 20370. Appendix A-21-i1 lists those commands currently authorized to adjudicate personnel claims.

(b) Claims by Marine Corps personnel. The Commandant of the Marine Corps; the Director of Personnel of the Marine Corps; the Deputy Director of Personnel of the Marine Corps; the Head, Personal Affairs Branch, Personnel Department, Headquarters, U.S, Marine Corps; and such other officers as may be specifically designated by the Secretary of the Navy are hereby designated and authorized to consider, ascertain, adjust and determine claims of Marine Corps personnel, both military and civilian, filed under this chapter.

(c) Claims by nonappropriated-fund employees. Claims by employees of Navy nonappropriated-fund activities for loss, damage or destruction of personal property incident to their employment will be processed and adjudicated in accordance with this part and forwarded to the appropriate nonappropriated-fund activity for payment from nonappropriated funds. Claims by employees of Marine Corps nonappropriated-fund activities should be referred directly to the appropriate nonappropriated-fund activity for investigation and payment.

(d) Partial payments when hardship exists. Every instance of loss or damage cognizable under this chapter can be expected to cause some degrees of inconvenience to the claimant and/or his family. When the magnitude of the loss or damage is such that the claimant needs funds to feed, clothe or house himself or his family properly, the adjudicating authority may authorize a partial

payment of an appropriate amount, normally one-half of the estimted total payment. Each authorization of partial payment must be accompanied by:

(1) A statement signed by the claimant requesting advance payment and setting forth in detail the circumstances of the loss or damage, the extent of the loss or damage, the estimated total value of his claim, his awareness that any amount advanced will be in partial payment of his claim and will not constitute a final settlement of the claim, an agreement to pay checkage if the amount advanced exceeds the amount allowed following final adjudication by the appropriate adjudicating authority, and a statement that he is aware of the penalties imposed by title 18 section 287 of the United States Code for willfully making a false claim. The claimant may present his statement on a Personal Claim form (DD Form 1842 with DD Form 1845 attached) for the purpose of compliance with this requirement.

(2) A statement by the Claims Investigating Officer confirming that the claimant is a proper claimant under the provisions of this part and setting forth his opinion regarding the reasonablenes of the estimated total value of the claim, the extent to which the claim has been substantiated. the amount and type of additional substantiation necessary before investigation of the claim can be completed, and any other information relevant to the hardship of the claimant or his family.

(3) A statement by the adjudicating authority certifying that the claim is cognizable under the provisions of this part and that the final adjudicated value of the claim is expected to exceed the amount of the partial payment authorized in accordance with the terms of this subparagraph. When a partial payment has been made, a copy of the payment voucher and all other information related to the partial payment will be placed in the claimant's claim file and other necessary action will be taken to ensure that the amount of the partial payment is deducted from the adjudicated value of the claim when final payment is made.

(e) Replacement in kind. Officers in the grade of lieutenant commander, major, or higher who are commanding officers, or who are in higher echelons

of command, including the officers specified in paragraph (a) of this section, or who are Senior Officers Present, are hereby designated and authorized to consider, ascertain, adjust, and determine the respective claims of Navy or Marine Corps enlisted personnel for replacement in kind filed under this chapter. Marine Corps officers below the grade of major, where such officers are in command of separate companies, batteries, squadrons, detachments, ports, or stations, are hereby designated and authorized to consider, ascertain, adjust, and determine claims of enlisted personnel for replacement in kind filed under this chapter. Replacement in kind authority may also be exercised by such other officers as may be specifically designated by the Secretary of the Navy. Accounting data for replacement of uniform items is specified in Navy Comptroller Manual section 023304 paragraph 3.

(f) Payments and collections. Payment of approved personnel claims and deposit of checks received from carriers, contractors, insurers, or members will be made by the Navy or Marine Corps disbursing officer serving the adjudicating authority. Payments will be charged to funds made available to the adjudicating authority for this purpose. Credit for collections will be to the accounting data specified in Navy Comptroller Manual section 046370, paragraph 2.

(g) Reports. Commands adjudicating personnel claims shall forward backlog reports to the Judge Advocate General on the last day of any calendar month when the number of personnel claims pending adjudication on that date exceeds one-third of the number of claims adjudicated during the reporting month. The report will contain the number and dollar amount of claims received for adjudication during the month, the number and dollar value of claims allowed. the number of claims denied, the number of claims forwarded to a higher authority for adjudication, and the number of claims pending as of the reporting date. The report should contain relevant information relating to the cause for the backlog of claims pending adjudication. This report is in addition to normal accounting reports required to control claims allotments. Adjudicating authorities will maintain in their files data for the current and preceding fiscal year. Re

port Control Symbol JAC 5890-5 is assigned to this report.

[38 FR 6040, Mar. 6, 1973, as amended at 39 FR 22422, June 24, 1974]

§ 751.25 Limitation on agent or attorney fees.

(a) Controlling statute. The Military Personnel and Civilian Employees' Claims Act of 1964, as amended (31 U.S.C. 240-243), the statutory authority underlying this part, provides in section 243 that:

No more than 10 per centum of the amount paid in settlement of each individual claim submitted and settled under the authority of sections 240-243 of this title shall be paid or delivered to or received by any agent or attorney on account of services rendered in connection with that claim and the same shall be unlawful, any contract to the contrary notwithstanding. Any person violating the provisions of sections 240-243 of this title shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in any sum not exceeding $1,000.

(b) Federal tort claims distinguished. The above-quoted provision which does not require that an attorney's fees be fixed in, and be made a part of, the award adjudicating the claim, is different from an otherwise similar provision concerning certain Federal tort claims as described in § 751.39.

(c) Other prohibition. The provisions concerning an attorney's fee set forth in (a) above does not authorize a fee in those cases where a fee is prohibited for other reasons (see SECNAVINST 5801.1B, Legal assistance program, paragraph 15). § 751.26 Separation from service.

Separation from the service or termination of employment shall not bar military personnel or civilian employees from filing claims or bar the authority of the designated officers from considering, ascertaining, adjusting, determining, and authorizing payment of claims otherwise failing within the provisions of these regulations when such claim accrued prior to separation or termination. § 751.27 Meritorious claims not otherwise provided for.

Meritorious claims within the scope of the Military Personnel and Civilian Employees' Claims Act of 1964, as amended (31 U.S.C. 240-243 which are not otherwise provided for in this chapter, may be forwarded via official channels to the

Secretary of the Navy (Judge Advocate General) for consideration. Exceptional meritorious cases may be approved for payment by the Secretary of the Navy or by the Judge Advocate General. § 751.28 Reconsideration.

(a) A claim may be reconsidered which was previously disapproved in whole or in part even though final settlement has been made when it appears that the original action was erroneous or incorrect in law or in fact based on the evidence of record at the time of the action or subsequently submitted. A request for reconsideration shall be made in writing to the adjudicating authority originally acting on the claim and should include all documents which have been returned to the claimant. All requests for reconsideration shall be made within 6 months from the date the claimant received notice of the intial adjudication of his claim. Any adjudicating authority shall reconsider a claim upon which he has originally acted upon the request of a claimant or someone acting in the claimant's behalf and may settle it by granting such relief as may be warranted. If it is determined that the original action was incorrect, it shall be modified and, if appropriate, a supplemental payment shall be approved. An adjudicating authority_may also, on his own initiative, reconsider a claim which he has denied in whole or in part.

(b) If an adjudicating authority does not grant the relief requested, or otherwise resolve the claim to the satisfaction of the claimant, the request for reconsideration shall be forwarded, together with the entire file and the adjudicating authority's recommendation, to the nearest appropriate $10,000 authority for final disposition. Final reconsideration of claims originally adjudicated by adjudicating authorities authorized to pay claims up to $10,000 will be made by the Judge Advocate General.

[38 FR 6040, Mar. 6, 1973, as amended at 39 FR 22422, June 24, 1974]

§ 751.29 Authorization for issuance of

instructions.

The Judge Advocate General of the Navy may issue such amplifying instruction or guidance as may be considered appropriate to give full force and effect to the purposes of this part.