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TORT CLAIMS UNDER THE UNIFORM CODE OF MILITARY JUSTICE
Military & Veterans Law: Service members: Allowances & Pay
A member of the United States military is not liable for any torts that he or she commits in accordance with a lawful command or while he or she is acting within the scope of his or her employment. However, the member is liable for damage that he or she causes to private property when he or she is not acting under a lawful command or when he or she is not acting within the scope of his or her employment. Such liability is based upon Article 139 of the Uniform Code of Military Justice (UCMJ).
In accordance with Article 139, a service member is responsible for damage to private property when he or she acts willfully or wantonly or when he or she wrongfully takes the property. The service member will be required to pay for the damage out of his or her military pay. These types of claims are usually only paid to private citizens in the United States. If the service member causes damage to private property while he or she is stationed overseas, the United States government may be responsible for the damage under the Foreign Claims Act, even if the service member is acting willfully or wantonly or has committed a criminal act.
Article 139 claims can only be paid for damages to real or personal property. They do not include compensation for personal injuries or death. However, in order for a service member to be responsible for an Article 139 claim, the service member must act in a willful or wanton manner or the service member must show a reckless or a wanton disregard for the property rights of other persons. The service member's conduct must directly cause the damage.
Under Article 139, a service member is also responsible for a wrongful taking of real or personal property. Examples of a wrongful taking include theft, larceny, forgery, embezzlement, or fraud. A dispute regarding a contract is normally not included within the meaning of a wrongful taking unless the service member had an intent to steal. Article 139 cannot be used as a means to collect a personal debt or to resolve a business dispute.
The types of claimants that are entitled to compensation under Article 139 include private individuals, other service members, business entities, state or local governments, and charities.
Certain types of claims are specifically excluded under Article 139. Those types of claims include claims resulting from simple negligence, subrogation claims by insurers, claims that are payable under other claims statutes, personal injury or death claims, claims that arise within the scope of a service member's employment, contractual claims, and claims for indirect or consequential damages, such as lost profits, interest, and attorney's fees.
Although a claimant is entitled to make an oral claim under Article 139, the claim must later be reduced to a writing. The writing must set forth the amount of the claim and the facts and circumstances regarding the claim. If there is more than one claimant, each claimant must submit a separate claim.
When a claimant files a claim against a service member under Article 139, the service member's commanding officer must order an investigation. The investigation must gather all the relevant information about the claim. A hearing is not required. The service member does not need to participate in the investigation. The investigation cannot be delayed, even if criminal charges are pending against the service member. The service member is entitled to a copy of the investigative report and is entitled to submit a written statement or response to the report.
A service member's commanding officer will review any investigation that is conducted under Article 139. The commanding officer will determine whether a claim is in proper form, whether it conforms to Article 139, and whether the claim is payable. If the commanding officer determines that the claim is payable, he or she will determine the amount that the service member must pay or the amount that will be deducted from the service member's pay.
An Article 139 procedure is an independent proceeding. It has nothing to doing with a court-martial or with any other punishment proceeding. A service member may still be subjected to a court-martial or to punishment for his or her actions.
The maximum amount of damages that may be paid to a claimant under Article 139 is $ 5,000 per service member per occurrence. The maximum amount that can be charged against the service member's pay is one-half of the service member's basic monthly pay.
A claim under Article 139 of the UCMJ must be filed within 90 days of an incident or occurrence. Copyright 2007 LexisNexis, a division of Reed Elsevier Inc.
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