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. 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
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