RELATIONSHIP TO COURT-MARTIAL PROCEEDINGS

Article 139 claims procedures are entirely independent of any court-martial or nonjudicial punishment proceedings based on the same incident. Acquittal or conviction at a court-martial may be considered by an Article 139 investigation, but it is not controlling on determining whether a member should be assessed for damages. The Article 139 investigation is required to make its own independent findings.

EXAMPLE

Facts. YN3 Snootfull got uproariously drunk, stole a U.S. Government sedan, and drove down the main street of Anywhere, Florida, at 85 mph. Finding this less than entirely challenging, he decided to drive in reverse with his eyes closed. In doing so, YN3 Snootfull smashed into the front window of Anywhere's Country Kitchen. Mama Cook has filed an Article 139 claim with YN3 Snootfull's CO. Is this claim payable under Article 139, UCMJ?

Solution. No. YN3 Snootfull's conduct certainly qualified as acts showing reckless and wanton disregard of the property rights of others. However, this claim would also be compensable under the nonscope claims statute because it involved use of a federal government vehicle while not within the scope of federal employment. Therefore, it is not payable under Article 139, UCMJ.

CLAIMS ON BEHALF OF THE GOVERNMENT FEDERAL CLAIMS COLLECTION ACT

Under the Federal Claims Collection Act, 31 U.S.C. 3711 (1982) (FCCA), the federal government may recover compensation for claims on behalf of the United States for damage to or loss or destruction of government property through negligence or wrongful acts.

GOVERNMENT'S RIGHTS

The extent of any FCCA recovery by the federal government is determined by the law where the damage occurred. As a general rule, if a private person would be entitled to compensation under the same circumstances, the federal government may recover under the FCCA.

FCCA claims may be pursued against private persons, corporations, associations, and nonfederal governmental entities. An FCCA claim also can be asserted against any federal employee responsible for the damage and, if the responsible party is insured, the claim may be presented to the insurer. See Federal Drivers' Act, 28 U.S.C. 2679(b) (1982), prescribing immunity for federal drivers.

MEASURE OF DAMAGES

The amount of the government's recovery for an FCCA claim is determined by the measure-of-damages rules of the law where the damage occurred. There is no maximum limit to recovery.

STATUTE OF LIMITATIONS

The government has 3 years after the damage occurs in which to make a written demand on the responsible party.

PROCEDURES

Specific procedures and collection policies are issued in JAGINST 5890.1. Among the notable features of FCCA procedures are the following: . Authority to handle FCCA claims. JAGINST 5890.1 lists the officers authorized to pursue, collect, compromise, and terminate action on FCCA claims. These include certain officers in OJAG and COs of NLSOs, except NLSOs in countries where another service has single service responsibility according to DOD Directive 5515.8. Claims over $20,000 can be terminated or compromised only with permission of the Department of Justice.

. Repair or replacement in kind. In some cases, the party responsible for the damage, or that party's insurer, may offer to repair or replace the damaged property. If such a settlement is in the government's best interest, the CO of the property may accept repair or replacement under conditions described in JAGINST 5890.1.

. Collection problems. Collecting the full amount claimed under an FCCA claim can often be difficult for a number of reasons. Therefore, the Joint Regulations authorize specific procedures to resolve or overcome collection problems:

Collection by offset. ^{The U.S. Government} may deduct the amount of the FCCA claim from any pay, compensation, or payment it owes the responsible party.

Suspension or revocation of federal license or eligibility, This can be a strong incentive for an entity desiring to do business with the government to pay a claim.

Collection in installments. In cases where the responsible party is unable to make a lump-sum payment, an installment payment schedule may be used. Terms, conditions, and limitations on installment payment plans are set forth in JAGINST 5890.1. A substantial portion of FCCA claims against individuals are liquidated through installment payments.

Compromise. When the responsible party is unable to pay the full amount of the claim within a reasonable time (usually 3 years), or when the responsible party refuses to pay and the government is unable to enforce collection within a reasonable time, the claim may be compromised. 

. Referral to Department of Justice. Unsettled claims may be referred to the Department of Justice for litigation. The referral is made by OJAG and not by the local authority directly.

MEDICAL CARE RECOVERY ACT

The Medical Care Recovery Act (MCRA) provides that, when the government treats or pays for the treatment of a military member, retiree, or dependent, it may recover its expenses from any third party legally liable for the injury or disease. The key to understanding the complexities of the MCRA is to realize that the federal government operates one of the largest health care systems in the world.

THE GOVERNMENT'S RIGHT

The MCRA created an independent cause of action for the United States. Its right of recovery is not dependent upon a third party. The requirement that the United States furnish care to an injured party is merely a condition precedent to the government's independent right of recovery. If the tortfeasor has a procedural attack or defense against the injured party, it will not serve as a bar to a possible recovery by the government.

The extent of any MCRA recovery by the federal government is determined by the law where the injury occurred. The federal government enjoys no greater legal rights or remedies than the injured person would under the same circumstances. Thus, if the injured person would be legally entitled to compensation for injuries from the responsible party under the law where the injury occurred, the federal government may recover its expenses in treating the injured person.

MCRA claims may be asserted against private individuals, corporations, associations, and nonfederal governmental agencies. They also may be asserted against a federal employee responsible for the injuries, except that no such claim may be asserted against a service member injured as a result of his or her own willful or negligent acts for two reasons. First, the wording of the MCRA, 42 U.S.C. 2651-2653 (1982), is explicit in providing a right of action against third parties. The injured member does not qualify as a third party. Second, to allow such a claim would violate the provisions and spirit of 10 U.S.C. 1074 (1982) that provides the entitlement of active duty service members to medical care free of charge. However, the United States can subrogate against any insurance coverage that the member may have that might cover medical care and treatment as a result of the self-injury.

If the party responsible for the injuries is insured, an MCRA claim maybe asserted against the insurer. Since a large portion of injuries resulting in MCRA claims involve automobile accidents, assertions against insurance companies are commonplace.

MEASURE OF DAMAGES

The federal government may recover the reasonable value of medical services it provided, either directly at a U.S. Government hospital or indirectly through the CHAMPUS program.

The value of treatment at federal government facilities is computed on a flat rate per diem basis for inpatient care and a per-visit charge for outpatient treatment, rather than the itemized charges used by most civilian hospitals. These are issued by the Office of Management and Budget (OMB).

The federal government may recover the amount actually paid to, or on behalf of, a military dependent under the CHAMPUS program.

The federal government may recover amounts it paid to civilian facilities for emergency medical treatment provided active duty personnel.

STATUTE OF LIMITATIONS

MCRA claims must be asserted within 3 years after the injury occurs.

PROCEDURES

MCRA procedures tire governed by JAGINST 5890.1, enclosure (6), section B. Notable aspects of MCRA procedures include the following:

l JAG designees. Primary responsibility for assertion and collectiom of MCRA claims rests with JAG designees (officers delegated MCRA responsibilities by JAG). JAG designees include certain officers in OJAG and COs of most NLSOs. Designees outside of OJAG have been assigned geographic responsibility. JAG designees may assert and receive full payment of MCRA claims in any amount, but they may compromise, settle, or waive claims up to $40,000. Claims in excess of $40,000 may be compromised, settled, or waived only with the ^{approval of the} Department of Justice.

. Initial action. JAG designees learn of potential MCRA claims from several sources.

. Investigations. When a military member, retiree, or dependent receives, either directly or indirectly, federal medical care for injuries or disease for which another party may be legally responsible, an investigation is required. One exception to this requirement is when the inpatient care does not exceed 3 days or outpatient care does not exceed 10 visits.

The responsibility for conducting the investigation of a possible MCRA claim normally lies with the CO of the local naval activity most directly concerned, usually the CO of the personnel involved in the incident or of the activity where the incident took place. This responsibility may be assigned to another CO under certain circumstances.

An investigation into a possible MCRA claim is conducted according to the JAG Manual and JAGINST 5890.1. An investigation of the same incident that was convened for some other purpose usually may be used to determine possible MCRA liability, provided it is complete.

If any investigation, regardless of its origin or initial purpose, involves a potential MCRA claim, a copy should be sent to the cognizant JAG designee.

Reports of Care and Treatment

The second major way that the JAG designee learns of a possible MCRA claim is by a report from the facility providing medical care.

Military health care facilities are required to report medical treatment they provide when it appears that a third party is legally responsible for the injuries or _disease. In the Navy, this reporting requirement is satisfied by submission of NAVJAG Form 5890/12, Report of Hospital and Medical Care - Third Party Liability Case (fig. 12-5) to the cognizant JAG designee. A NAVJAG 5890/1 2 is submitted when it appears that the patient will require more than 3 days' inpatient care or more than 10 outpatient visits. Preliminary, interim, and final reports are prepared as the patient progresses ^{through the treatment.} This report is, in essence, a hospital bill because it will reflect the value of the medical care provided to date, computed according to _{OMB rates.} Military health care facilities in other services use forms similar to NAVJAG 5890/12.

Statements of CHAMPUS payments on behalf of the injured person are available from the local CHAMPUS carrier (usually a civilian health care insurance company that administers the CHAMPUS program under a government contract), Statements are sent automatically to JAG designees in cases involving potential third-party liability.

District medical officers arc required to submit reports to cognizant JAG designees whenever they pay emergency medical expenses incurred by active duty personnel at a civilian facility and the circumstances indicate possible MCRA liability.