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 involves a dispute over the terms of a contract or over ownership of property is not normally payable unless the dispute is merely a cover for an intent to steal. Article 139 is not a way in which an individual can have his or her debts collected, nor is it to be used to mediate business disputes.

A claim that a marine borrowed a friends VCR to tape a show and did not return it on the promised date would not be cognizable unless the marine borrowed the VCR on such a pretext and then sold it. This would prove a present intent to steal.

A claim that a sailor issued a worthless check would be cognizable if evidence establishes an intent to defraud. Such intent may be inferred when the sailor fails to make good on a bad check within 5 working days of receiving notice of insufficient funds, in the same way that a criminal intent to defraud maybe inferred under Article 123a, UCMJ, A claim that a sailor stole a check or credit card and _{used it to obtain items} of value would be cognizable.

EXCLUSIONS FROM LIABILlTY

The following types of claims are not payable under Article 139:

. Claims resulting from conduct that involves only simple negligence (failure to act with the same care that a reasonable person would use under the circumstances)

l Subrogated claims (by insurers)

. Claims payable under other claims statutes or regulations

. Claims for personal injury or death

. Claims arising from conduct occurring within the scope of employment

l Claims for reimbursement for damage, loss, or destruction of government property

l Claims arising from contractual or fiduciary relationships

l Claims for indirect or consequential damages (such as lost business, lost earnings, carrying charges, interest, attorney fees, inconvenience, telephone calls, or time spent preparing the claim)

PROPER CLAIMANTS

Any individual (including both civilians and service members), business entity, state or local government, or charity may submit a claim.

MEASURE OF DAMAGES

The amount of recovery is limited to only the direct physical damage caused by the service member. Service members are not assessed for damage or property loss due to the acts or omissions of the property owner, his or her lessee or agent, that were a proximate contributing factor to the loss or damage of said property. In these cases, the standard for determining responsibility will be one of comparative responsibility.

The maximum amount that maybe approved by an OEGCMJ under Article 139 is $5,000 per offender, per incident. Where there is a valid claim for over $5,000, the claim, investigation into the claim, and the CO's recommendation are sent to JAG (Code 35) or to ^{Headquarters,} U.S. Marine Corps (Code JAR), as appropriate, before checkage against the offender can begin. The amount that can be charged against an offender in any single month cannot exceed one-half of the member's basic pay.

STATUTE OF LIMITATIONS

The claim must he submitted within 90 days of the incident upon which the claim is based.

PROCEDURES

Article 139 claims involve certain unique procedures. The claimant may make an oral claim, but it must be reduced to a personally signed writing that sets forth the specific amount of the claim, the facts and circumstances surrounding the claim, and any other matters that will assist in the investigation. If there is more than one claimant from a single incident, each claimant must submit a separate and individual claim.

Investigation

Claims cognizable under Article 139 may be investigated by an investigation not requiring a hearing. There is no requirement that the alleged offender be designated as a-party to the investigation and afforded the rights of a party. The investigation inquires into the circumstances surrounding the claim, gathering all relevant information about the claim. Under no circumstances should the investigation of a claim be delayed because criminal charges are pending.

The investigation makes findings of fact and opinions on whether the claim:

l is by a proper claimant (in writing and for a definite sum).

l is made within 90 days of the incident that gave rise to it.

l is for property belonging to the claimant that was the subject of damage, loss, or destruction by a member or members of the naval service.

l specifies the amount of damage suffered by the claimant.

l is meritorious.

The investigation also makes recommendations about the amount to be assessed against the responsible parties. If more than one service member is responsible, the investigation must make recommendations concerning the amount to be assessed against each individual.

A preponderance of the evidence is necessary for pecuniary liability under Article 139.

Normally, the measure of a loss is either the repair cost or the depreciated replacement cost for the same or similar item. Depreciation for most items depends on the age and condition of the item. The Military Allowance List-Depreciation Guide should be used in determining depreciated replacement cost.

Subsequent Action

If all offenders are attached to the command convening the investigation, the CO assures that the offenders have an opportunity to see the investigative report and are advised that they have 20 days in which to submit a statement or additional information. If a member declines to submit further information, he or she will so state, in writing, during the 20-day period.

The CO reviews the investigation and determines whether the claim is in proper form, conforms to Article 139, and whether the facts indicate responsibility for the damage by members of the command. If the CO finds that the claim is payable, he or she fixes the amount to be assessed against the offender(s).

If the CO has authority to convene a GCM, no further review of the investigation is required. If the CO does not have GCM CA, the investigation and the CO's action is forwarded to the OEGCMJ over the command for review and action. The OEGCMJ will then notify the CO of his or her determinations, and the CO will take action consistent with that determination.

If the offenders are members of different commands, the investigation is sent to the OEGCMJ over the commands to which the alleged offenders are assigned. The OEGCMJ makes sure the alleged offenders are shown the investigative report and are permitted to comment on it before action is taken on the claim.

The OEGCMJ reviews the investigation to determine whether the claim is properly within Article 139 and whether the facts indicate responsibility for the damage on members of his or her command. If the OEGCMJ determines that the claim is payable, he or she fixes the amount to be assessed against the offenders and direct their COs to take action accordingly.

The OEGCMJ may, upon request by either the claimant or the member assessed for the damage, reopen the investigation or take other action he or she believes is in the interest of justice. If the OEGCMJ anticipates acting favorably on the request, he or she will give all interested parties notice and an opportunity to respond.

If the claim is for $5,000 or less, the claimant or the member against whom pecuniary responsibility has been assessed may appeal the decision to the OEGCMJ within 5 days of receipt of the OEGCMJ's decision. If good cause is shown, the OEGCMJ may extend the appeal time. The appeal is submitted via the OEGCMJ to JAG for review and final action. Imposition of the OEGCMJ's decision is held in abeyance pending final action by JAG.