Block III - General Law & Claims Flashcards
Cards labeled “PAC flashcard” denote flashcards pulled from my previous decks during PAC that may be useful and do not always contain information discussed in class.
PAC flashcard
Mark this one Blue (5).
Restate how Article 138, UCMJ complaints are processed. (W)
- Initial Application to CC.
- Commander’s Review
- Commander Notifies Member
- Member Makes Formal 138 Complaint
- GCMCA’s Review
- GCMCA Notifies Member & Forwards to JAA
- SECAF Review (JAA)
Cite examples of situations giving rise to complaints under Article 138, UCMJ. (W)
Unlawful pre-trial confinement
Deferral of post-trial confinement
Admin actions in lieu of C-M or NJP
Decoration type items
Who is the final authority for final review of formal complaints?
AF/JAA is the authority for final review for formal complaints
Who is responsible for submitting the Article 138 complaint?
The member, BUT ADC may assist and submit on behalf of member
What AFI covers Article 138 complaints?
AFI 51-505
How long does the member have from discovery of the wrong to submit, in writing, the complaint to their CC?
90 days
What must or can the initial CC receiving the Art 138 complaint do?
- Must consult with servicing SJA
- May initiate inquiries necessary for response
- May consider evidence in addition to matters member submitted before responding to member
- Everything used by CC MUST be sent to GCMCA as well.
When does an Article 138 complaint go from informal to formal?
When it is submitted to the GCMCA
How long does the CC have to respond to the member?
- No later than 30 days.
- CC may notify of additional time for fact gathering (and must be sent to member every 30 days as needed)
- Otherwise CC will notify of relief granted, relief denied in full or in part and CC must specify why, or of forwarding the complaint to appropriate office
When can the member submit the Article 138 complaint to the GCMCA?
When the informal complaint at the CC level dismisses the relief in whole or in part.
How long does the member have to apply in writing to the GCMCA review of the Article 138 complaint?
30 days from CC’s decision to dismiss the relief in whole or in part
What AFI and attachment must the member use to request GCMCA review of the Article 138 complaint?
AFI 51-505, attachment 3
Can the member add new allegations in the Article 138 complaint submitted to the GCMCA?
No
What must or will the GCMCA do upon receipt of the Article 138 complaint?
- Consult with GCMCA SJA and obtain written legal review
- May conduct an investigation as needed to respond
- May consider other authority’s findings on collateral matters
- must notify member, within 60 days of application for redress, of relief denied (and why), granted, part or whole, lack of authority and forwarding, or deferral for fact finding.
Who has ultimate authority on all Art 138 complaints?
AF/JAA
Who must the GCMCA send a copy of the Art 138 complaint file to, regardless of decision to grant in full or deny in whole or part?
AF/JAA
Who provides final decision to GCMCA for the Article 138 Complaint?
AF/JAA
What does AF/JAA notify member of?
- Completion of their review
- Further action on the complaint
- Reasons for that action (if applicable)
Explain key principles of tort law. (W)
- Tort
- Civil Wrong
- One party causes personal injury/damage to another
- May be held liable for damages
- Elements of tort
- Duty to do / not to do certain acts
- Breach or violation of that duty
- Breach caused/was proximate cause of damage
- Breach / violation caused damage, personal injury, death
Explain the statutory requirements of the Federal Tort Claims Act (FTCA). (W)
Stateside ONLY
- Proper Claimants
–Owners of property that was damaged, individual who was injured, an executor (if individual passed away), insurance company (subrogation)
-Improper Claimants
–Other federal agencies
- Statute of Limitations
- FTCA has a two-year limitation (Federal trumps state f/ Statute of limitations).
Differentiate between FTCA statutory and state law procedures. (W)
— State substantive law applies
* Damage limitation cause of action
* All defenses available to private person
* Cause of action (tort elements)
* Scope of employment
— Federal Procedural rules apply (and trump state)
* Two year statute of limitations
* Must file administrative claim first (some sort of written demand must be presented)
Explain the statutory requirements of the Military Claims Act (MCA). (W)
— Proper Claimants
* Citizens who are US inhabitants (dependents of military members)
* federal civilian employees temporarily assigned outside the U.S. on behalf of the U.S.,
* Military personnel and federal civilians
— Improper Claimants
* Governments of a foreign nation
* Inhabitants from a foreign country where damages occurred in a foreign country
— Statute of Limitations
* Two years (same as FTCA)
— Damages
* US not liable under strict liability rules
* Up to individual to prove what they claim
* No punitive damages are awarded. Only awards are for what it costs to bring the person/item back to whole.
Differentiate between the tort and non-combat provisions under the Military Claims Act (MCA). (W)
–MCA (Act of Grace) Negligent or Wrongful Act or Omission (tort)
* Requires negligent act or omission and scope of employment
* Claimant must prove negligence
* Claims arising in U.S. – State law where the act or omission occurred
* Claims arising overseas – multiple rules for determining
—Noncombat Activity
* Essentially military in nature (has no similar civilian equivalent activity).
* Sonic boom, EOD, etc
* No proof of negligence (causal connection)
In regards to Claims Administration what does the following term mean?
Tort
`A civil wrong in which one party causes personal injury or property damage to another and may be liable in damages. Some elements must be met for a tort, which are:
the duty to do or not to do a certain act;
a breach or violation of that duty occurred;
breach caused/was proximate cause of damage;
that breach or violation of duty caused property damage, personal injury or death
What does MCA apply to?
PAC flashcard
Settling claims against the US for damage to or loss of property, personal injury, or death, resulting from the negligent or wrongful act(s) or omission(s) of AF military or civilian personnel while acting within the scope of their employment, or otherwise incident to AF non-combat activities (NCA)
What are MCA exceptions?
PAC flashcard
Combat activities of US mil forces; personal injury or death of a mbr of armed forces of the US incident to service; and personal injury or death that results wholly from the claimants negligent or wrongful act(s)
Define Tortfeasor
PAC flashcard
One who commits or is guilty of a tort
Describe claims jurisdiction as it relates to the Federal Tort Claims Act
PAC flashcard
FTCA covers damage to or loss of property or personal injury or death resulting from the negligent or wrongful act(s) or omission(s) of AF military or civilian personnel while acting within the scope of their employment.
Claims under FTCA apply to accidents and/or incidents arising within the US and its territories.
What does FTCA NOT apply to?
PAC flashcard
Overseas claims or non-combat activities
Determine appropriate forms for claims under FTCA
PAC flashcard
SF 95, Claim for Injury, Damage, or Death
If the incident involved a vehicle accident, a SF 91, Motor Vehicle Accident (Crash) Report, will be required with the SF 95
Explain the statute of limitations for claims under FTCA
The statute of limitations is 2 years
Recall the difference between FTCA and MCA flow chart
PAC flashcard
This chart denotes which acts to use stateside or overseas based on the type of claim and who is making it
Discuss procedures to determine proper claimants under the Federal Tort Claims Act (FTCA)
PAC flashcard
Persons (typically civilians) suffering damage, injury, or death if a private person would be held liable.
Military and fed employees (rare circumstances)
Recall elements of FTCA
Injury to person or property
Due to negligence or wrongful act or omission
Employee of the United States Government (USG) AND acting within the scope of employment
Under circumstances where the USG, if a private person, would be liable
Can other federal agencies file a tort claim against another federal agency?
PAC flashcard
No
Define Comparative negligence
PAC flashcard
A rule applied by some states, which measures negligence in terms of percentage of liability, and limits each party’s recovery to the percentage caused by the other party (very few states use this)
Define Contributory negligence
PAC flashcard
When a party presenting a claim contributed to the cause of the accident (negligence), some states prohibit parties from recovering an amount, regardless of their degree of negligence
Define Negligence
PAC flashcard
Failure to act as a reasonably prudent person would if under the same or similar circumstances
Define Non-combat Activity
PAC flashcard
Activity other than combat, war, or armed conflict that is particularly military in nature, has little parallel in civilian pursuits and has been historically considered as furnishing the proper basis for a claim
How much advance payment can a claimant get through an MCA claim?
Up to $100,000
Can an advance payment be provided for an FTCA claim?
No
Where can MCA claims be made?
Overseas and Stateside
FTCA can only be claimed where?
Stateside
What is the statute of limitations for MCA?
Two years
Who are proper claimants for MCA?
- Citizens who are US inhabitants (dependents of military members)
- federal civilian employees temporarily assigned outside the U.S. on behalf of the U.S.,
- Military personnel and federal civilians
What are the MCA Exceptions/Defenses?
- Constitutional claims
- Civilian employees for work related injuries or death
- Claims resulting from negligence of claimant
- Incident to service for injury or death (non-medical malpractice)
- Combat Activities
What are the FTCA Exceptions/Defenses?
- Discretionary Function
- Permissible exercise of policy judgement
- Two-part test
- Was there an element of choice (did we prove all FTCA elements were met?)
- Was it the kind Congress intended to protect
- Damage incurred in performance of duty
- Federal civilian employee claims of personal injury or death are barred
- Damage/injury/death incurred incident to service (Feres Doctrine)
- Rationale – peculiar relationship of soldiers and supervisors & effect on good order and discipline (Ex: medical doctors leaves a tool inside a person during surgery).
- NDAA 2020 (added provisions that allowed for administrative relief.)
- Derivative claims of family members
What’s the Air Force Claims Service Center website?
https://claims.jag.af.mil
Explain how to locate specific items on the Air Force Claims Service Center (AFCSC) Web Site. (W)
—Tort claims information
— Hot notices
-Outage to website or changes posted here
—Important information section (most used, claims for HHG and non-HHG)
* This is where those who are retired or separated or retiring/separating within 120 days can start their claim
* HHG (baggage, shipped motorcycles and vehicles)
* Non-HHG (disaster claims, food spoilage, thefts, vandalism, etc)
* User Guide – all the background needed to file
* Within User guide (left side) there is a lot of information such as before you move, what you need before filing, additional links, repair sources, etc.
Where can you find the AFCSC Action Officer Handbook?
FLITEKM > Civil Law > Claims > Claims Service Center
Define Personal injury
PAC flashcard
Applies to both bodily injury and death
Define Proximate cause
PAC flashcard
The dominant or primary cause of an injury or loss
Describe important steps in preparing and conducting a witness interview. (W)
- Review all available witness and case information
– Prepare for witness interview- ID yourself as AF representative
- Take careful notes (body language, demeanor, behavior, statements, reactions).
- Do not record the interview
- If you suspect criminal activity - stop & contact JACC
- Prepare open ended questions
- Prepare pre-planned questions
Explain the importance of properly prepared/authenticated witness statements. (W)
- Work product statement on EVERY PAGE. witness does not get a copy.
- No recording without prior approval.
- Purpose: memoralize interview
- Full name
- Current work and home telephone number
- Current work and home address
- If military: Last four of SSN, home of record, PCS information
- Short description of witness involvement
- Paralegal or Attorney signs and add to file
Identify appropriate uses of reports from other agencies in processing claims. (W)
- Security Forces – Reports & Analysis section (G-claims, blotter)
- Transportation Office – GOVs records (condition prior to incident)
- Civil Engineering – structural records (buildings barriers)
- Flight Operations – Sonic booms, aircraft flight times, etc
- Commissary and AAFES – Video footage & incident reports. Slip and fall accidents
Explain the purpose of potential claims files. (W)
- Preserve evidence
- Maintain claimant information
- Maintain continuity
- Claimant has 2 years to file claim
With regard to claims investigation and interviews, who must you get permission from to record an interview of a witness?
JACC
With regard to claims investigation and interviews, if you are in the interview and suspect criminal conduct, what should you do?
Stop the interview and call JACC for further instruction.
What must be on every page of the witness interview memorandum?
the required work product statement.
When should you prepare the witness interview memorandum?
As soon as possible you can memoralize as much detail as possible.
What is this statement?
“This memorandum has been prepared by an Air Force Judge Advocate (or paralegal) while investigating a claim or potential claim for damages against the United States. The attorney’s (or paralegal’s) impressions and observations summarized herein were obtained in anticipation of future litigation involving the same incident, and this memorandum would not have been prepared in the normal course of Air Force business activities, but for the possibility that litigation might ensue.”
Work product statement
With regard to claims investigation and interviews, what details should be included about the witness?
- Full name, current work and home phone numbers, current work and home address.
- If military: last four of SSN, home of record, PCS information.
- Short description of witness involvement
- Signature of paralegal or attorney who drafted.
Does the claimant get a copy of the witness interview memorandum(s)?
NO They are not entitled to a copy of this/these statements (it’s attorney work-product).
What agencies may aid us in finding evidence?
- Security Forces – Reports & Analysis section (G-claims, blotter)
- Transportation Office – GOVs records
- Civil Engineering – structural records
- Flight Operations – Sonic booms, aircraft flight times, etc
- Commissary and AAFES – Slip and fall accidents
When are potential claims files created?
An investigation is conducted to determine the amount of damages potential claimants may have incurred during a major accident, natural disaster, or military activity
When is a master claim file created?
When there may be 5 or more potential claimants as the result of damages incurred during a major accident, natural disaster, or military activity.
Ex: Hurricane destroys a bunch of property
Why are potential claims files created?
- Preserve evidence
- Maintain claimant information
- Maintain continuity (claimant has 2 years to file)
Explain procedural requirements to properly settle tort claims. (W)
- Administrative claim done on SF 95
- Gov has 6 months to process/ amendments reset 6 month clock
- If settlement is above $25k it must go to JACC
- Once amount determined, send offer letter and settlement agreement (Settlement agreement MUST be signed)
- Greater than $2.5k = judgement fund/ less than $2.5k= SF 1034 submitted to Claims Service Center (CSC).
- If denying FTCA, letter must include title and legal citation of statute, if they have the option to file suit and how long to do so .
- If denying MCA, Title and citation listed, notice that it’s the final denial of the administrative claim, that they can appeal within 60 days of the date of the letter, must be in writing.
Explain procedural requirements for processing appeals under the Military Claims Act. (W)
- Claimant has 60 days to request an appeal.
- Appeal goes to original office that denied claim
- Must be in writing
- Provide additional items claimant deems necessary
What must be included in an MCA denial letter?
- Title & legal citation
- This is the final denial
- They can file an appeal within 60 days.
What form is the administrative claim done on?
SF 95
How much can a base SJA approve for a claim?
$25k
Can the SJA can delegate their $25k authority to a paralegal overseas?
No.
Only stateside
If the claimant amends their claim, what happens to the agencies timeframe to respond to the claim?
It resets the 6 month period.
When is an electronic submission sent to the judgement fund for an FTCA claim?
When the claim is GREATER THAN $2,500.00
When is an SF 1034 used to settle an MCA or FTCA claim?
When the claim is BELOW $2,500.00
What must be in the FTCA denial letter?
- Title & Legal citation of statute
- Notice that it’s the final denial
- They can file in District Court
- They have 6 months to file the suit
What must be in an MCA denial letter?
- Title & citation
- Notice that it’s the final denial of administrative claim
- They may appeal and it must be within 60 days of the date of the letter
What can a claimant do when they get a denial letter of their FTCA claim?
Do nothing
Can sue in District Court
Or request reconsideration
What can a claimant do when they get a denial letter of their MCA claim?
Do nothing
CANNOT SUE
Request Appeal
What claims must immediately be sent to JACC?
- Medical Malpractice
- Personal Injury
- Legal malpractice
- Government Contractor Injury or Death
- Admiralty Claims
- Civil Air Patrol
Determine appropriate forms for claims under FTCA
PAC Flashcard
SF 95, Claim for Injury, Damage, or Death
If the incident involved a vehicle accident, a SF 91, Motor Vehicle Accident (Crash) Report, will be required with the SF 95
Can a base SJA delegate complete or partial settlement authority to a subordinate attorney or paralegal?
PAC Flashcard
Yes, as long as the claim is arising within the United States
List the documents required to properly settle tort claims
PAC Flashcard
Settlement offer - prepared by settlement authority and shows legal office review and offer for settlement to claimant
Settlement Agreement - attached to offer, and must be signed before payment. Includes claim number, brief description of facts, and settled dollar amount. Two copies must be signed with wet signature. Claimant must also fill out Electronic Funds Transfer form.
Denial letter - done if claimant is unwilling to accept the offer or the claim is not a payable claim. Claimant is informed of the statute under which their claim was reviewed and the rationale for the denial. If done under FTCA or MCA, claimant is informed of their right to sue or appeal, respectively.
What does MCA apply to?
PAC Flashcard
Settling claims against the US for damage to or loss of property, personal injury, or death, resulting from the negligent or wrongful act(s) or omission(s) of AF military or civilian personnel while acting within the scope of their employment, or otherwise incident to AF non-combat activities (NCA)
What are MCA exceptions?
PAC Flashcard
Combat activities of US mil forces; personal injury or death of a mbr of armed forces of the US incident to service; and personal injury or death that results wholly from the claimants negligent or wrongful act(s)
Explain guidelines for asserting, compromising, waiving, and finalizing Pro-Government Claims. (W)
- Federal Claims Collection act gives Gov authority to go after tortfeasor to recover for damages.
- Assert claims greater than $100 or less than $100 when easily collected
- Do not assert g-claims against members who would pay via FLI, loss or damage to AAFES, DeCA, or other fed agency.
- SJA settlement authority is $25,000
- Waive or terminate when no merit or evidence
- Forward to JACC when you cannot locate tortfeasor, or unable to collect funds.
- Payment
- DD Form 1131, Money goes to org responsible for repair, mx, or replacement
- Repair in kind
What is covered under G-claims?
Any U.S. Government property and NAFI property
When does the government go after a tortfeasor?
When damage caused is greater than $100 or if less than $100, when the money is easily collected
What are non-assertable g-claims?
- Reimbursement from military member/civilian employee for claim paid by USG due to negligence of member
- Reimbursement from military member/civilian employee being held accountable under FLI
- Loss or damage to AAFES, DeCA, or other federal agency
What are the procedures for a G-claim?
- Identify the damage
- Analysis of causation (who caused it, what hapened, etc), private insurance, amount of damages.
- Assessment to see how much of the incident is the persons fault (state law)
- Assertion - in writing Notice of Claim Memorandum (demand letter)
How long does the government have to go after the tortfeasor from date USG knew or should have known of property damage?
3 years
Where can you find templates and resources for G-claims?
FLITEKM > Civil Law > Claims > Pro-Government/ “G” Claims > Templates and Resources (on the right)
Who is the base settlement authority and how much?
Base SJA, up to $25,000k
If an individual asks for and secures a payment plan, is that considered paid in full?
Yes
If the person offers the full amount of the demand letter and it is over the SJAs authority amount, can the SJA accept?
Yes
When do you terminate a claim?
Claim is legally without merit
The evidence doesn’t substantiate claim
If you can’t locate a tortfeasor or the USG is unable to collect after exhausting all collection methods, what do you do?
Forward it to JACC
If the demand amount in a g-claim is for $30,000 and the individual wants to compromise for $27,500.00, what do you do?
It gets forwarded to JACC because it is above the SJAs authority.
Regardless of the amount of the g-claim, can the SJA collect in full?
YES
What is “repair in kind”
When the tortfeasor pays the third party repair or replacement service directly to repair or replace the damaged property.
Determine possible sanctions for unauthorized release of Privacy Act information. (W)
You may be subject to civil and criminal penalties for violating the Privacy Act.
Misdemeanor criminal charge, and a fine of up to $5,000 per incident.
Explain procedures for processing Privacy Act requests. (W)
- Receive request in writing, but doesn’t have to state PA or FOIA (must describe what they are wanting)
- Who is requesting the PA record? Verify their identity
- Do we keep those records? Use SORNS to ensure it’s records kept.
- Determine if there are there exemptions from SORNs
- 10 days to send acknowledgement letter
- 20 days to send records or denial
What is the procedure for processing PA requests from a third party?
*Who is requesting the PA record, why do they need it? Get request in writing.
*Subject:
* Has an exemption been claimed?
———–No – release complete record
———–Yes – process under FOIA
What does the Privacy Act apply to?
Applies to executive agency (government) records about individuals, maintained in a system of records.
With regard to the privacy act, what is a record?
Any item or collection of info about an individual which is maintained by an agency and which contains that person’s name or other identifying particulars.
With regard to the privacy act, what is a system of records?
A group of records under the control of an agency from which information is retrieved by name of the individual or some personal identifier.
With regard to the privacy act, what is a individual?
U.S. citizen or individual lawfully admitted for permanent residence.
Regarding privacy act, what is personal information?
The types of info protected by the PA. Protected information of an individual.
Regarding the privacy act, what is official information?
Information about an individual that is not protected under the PA.
Discuss privacy act request basics
- No prescribed from
- Requestor must identify records they want
- Provide verification of identity (of the requestor).
Is it possible that if records cannot be released under Privacy Act that it could be released under FOIA instead?
Yes.
Can a denied privacy act request be sued over?
No, they have 60 days from the date of the denial letter to appeal.
What are some common Privacy Act for 1st party requester that are denied?
- Classified information
- Release would reveal confidential source
- Requested info is data to determine suitability for federal service, contracts, or access to classified information
- Requested information was used to determine promotability
- Testing info if would compromise test
What are some commonly used exceptions to the “No disclosure to third parties” rule?
- Disclosures within DoD
- FOIA requires disclosure
- Routine uses posted in fed register
- Bureau of the Census
- Statistical research or reporting
- NARA/GSA
- Law enforcement purposes
- Emergency disclosures
- Congress
- General Accountability Office
- Court order
- Consumer Reporting Agencies
What’s the basic rule for FOIA or PA requests?
Analyze under both statutes; if it’s releasable under either, then release it.
Where can you reference for information on privacy act?
AFI 33-332, Privacy and Civil Liberties Program, which implements DoDD 5400.11, DoD Privacy and Civil Liberties Program; and DoD 5400.11-R, DoD Privacy Program
Explain step-by-step procedures for processing Freedom of Information Act (FOIA) requests. (W)
FOIA monitor recieves the request >
Sends request to OPR (Office who would have the record) >
If full record can be released, it is released
OR If full record cannot be released, a legal review of the partial or full denial must be done. >
IF we agree with the OPR on (full or partial), it goes to the Initial Denial Authority at the MAJCOM (second legal review is c/w) ultimate decision is made to release or not.
Explain the Fiscal Law principles of Time, Purpose and Amount. (W)
Time: Used within certain amount of time (can’t use FY23 funds for FY24 projects)
Purpose: Used for certain purpose
Amount: certain amount of money. Not overspending.
Describe the required steps and documents required in processing a notification discharge case file. (W)
Initiating CC & member
CC:
- Decertification f/ PRP
- EPR due
- Serve notification memo
- Schedule ADC
- Schedule medical exams
- Let them know of their ineligibility to re-enlist
- preparing CC recommendation letter
- Obtain and maintain response from member (member has 3 duty days to respond)
- Send case file for processing
Action by the member:
- Acknowledges receipt of notification
- Reports for medical
- Consults ADC
- Submits response/statement(s) if any
Discuss the discharge process timeline and case file contents.
Describe the administrative discharge board process. (W)
Describe the steps required to process an officer separation action. (W)
Recap the Officer
See image.
