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Nonscope Claims - 14135_333
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Exclusion from Liability
.  Claimant’s  rights  after  denial. If  a  claim submitted solely as a nonscope claim is denied, the claimant may appeal to the Secretary of the Navy (Judge Advocate  General)  within  30  days  of  the  notice  of denial. There is no right to sue under the nonscope claims statute. EXAMPLE Facts. SW1 Bad Boy resolved to kill his archenemy SWC Nice Guy, but he planned to make it look like an accident. He stole a government sedan, drove it off base,  and  rode  around  town  looking  for  SWC  Guy. When he spotted SWC Guy standing on a corner, SW1 Boy aimed the car at SWC Guy and bore down on him at a high speed. SWC Guy tried to jump out of the way, but not quickly enough to avoid being struck a glancing blow.  As  a  result,  SWC  Guy  suffered  extensive  injuries. Also, the clothes he was wearing and the radio he was carrying were destroyed. SWC Guy has filed an FTCA claim  for  $15,000  ($600  for  property  damage  and $14,400 for personal injury, pain and suffering, and lost wages from his part-time job). How much, if anything, will SWC Guy collect? Solution. his claim is not payable under the FTCA for several reasons, not counting any possible  Feres doctrine  problem  caused  by  the  claimant  being  a military  member. First,  FTCA  does  not  provide compensation for losses caused by intentional torts such as assaults and battery. Moreover, SW1 Boy’s act was not within the scope of his federal employment. Under the FTCA, the government is liable only for acts within the scope of federal employment. The fact that SW 1 Boy’s  acts  were  outside  the  scope  of  his  federal employment also prevent paying his claim under the MCA.  However,  under  the  automatic  consideration provisions, this claim may be considered as a nonscope claim. It is not cognizable under another claims statute and the injuries and damage were caused by a federal employee. Neither  negligence  nor  scope  of employment is required. The claim involves the use of a  government  vehicle. Therefore,  SWC  Guy  can recover under the nonscope claims statute. He will not be  compensated  for  medical  expenses  that  were provided  by  the  U.S.  Government.  Pain  and  suffering and  lost  wages  are  likewise  not  compensable  under  the nonscope  claims  statute. Therefore,  SWC  Guy  will recover only the $600 property damage loss. ARTICLE 139, UCMJ, CLAIMS Article 139 of the UCMJ provides compensation for private  property  damage  caused  by  riotous,  willful,  or wanton acts of members of the naval service not within the scope of their employment or the wrongful taking of property by a member of the naval service. Article 139 claims are unique in that they provide for the checkage of the military pay of members responsible for the property  damage.    Overseas,  these  types  of  damages may be paid for under the FCA. Private citizens in the United  States  generally  do  not  have  an  effective  means by which to be reimbursed for property damage or loss in these situations. Historical y, Article 139 claims have been extremely rare within the Department of the Navy because of the low dollar limit and a requirement that an investigation  requiring  a  hearing  be  conducted  to investigate  the  validity  of  the  claim. Because it is the only Victim’s Rights Act that the Department of the Navy has, there is a new emphasis being placed on Article 139 claims within the Navy. Although  the  individual  member,  not  the  federal government, is liable for the damage, the member’s command has significant procedural responsibilities that can be found in chapter IV of the  JAG  Manual, SCOPE OF LIABILITY Article  139  claims  arc  limited  to  damage,  loss,  or destruction of real or personal property. The property damage, loss, or destruction must be caused by acts of military members that involve riotous or willful conduct, or demonstrate such a reckless and wanton disregard for the property rights of other persons that willful damage or destruction is implied. Only damage that is directly caused by the conduct will be compensated. A claim that a marine accidentally bumped into and broke a mirror in the course of a drunken brawl with a Navy SEAL would be cognizable. Even though the marine did not specifically intend to break the mirror and you could characterize the act as simple negligence, the marine’s conduct was riotous and damage resulted from it. A claim that a sailor drove a carat 90 miles an hour down the highway and drifted over the center line into an oncoming car would not be cognizable. A  wrongful  taking  is  essentially  theft.  Claims  for property  that  was  taken  through  larceny,  forgery, embezzlement,  misappropriation,  fraud,  or  similar  theft offenses are normally payable. Loss of property that 12-26

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