32 U.S.C. § 715 — Property loss; personal injury or death: ac-

Page 53 TITLE 32—NATIONAL GUARD § 715 Statutory Notes and Related Subsidiaries DESIGNATION OF BENEFICIARY MADE BEFORE JANUARY 1, 1956 Designation of beneficiary made before Jan. 1, 1956, considered as the designation of a beneficiary for the purposes of this section, see note set out under section 2771 of Title 10, Armed Forces. § 715. Property loss; personal injury or death: ac- tivities under certain sections of this title (a) Under such regulations as the Secretary of the Army or Secretary of the Air Force may prescribe, he or, subject to appeal to him, the Judge Advocate General of the armed force under his jurisdiction, if designated by him, may settle and pay in an amount not more than $100,000 a claim against the United States for— (1) damage to, or loss of, real property, in- cluding damage or loss incident to use and oc- cupancy; (2) damage to, or loss of, personal property, including property bailed to the United States or the National Guard and including reg- istered or insured mail damaged, lost, or de- stroyed by a criminal act while in the posses- sion of the National Guard; or (3) personal injury or death; either caused by a member of the Army National Guard or the Air National Guard, as the case may be, while engaged in training or duty under section 316, 502, 503, 504, or 505 of this title or any other provision of law for which he is entitled to pay under section 206 of title 37, or for which he has waived that pay, and acting within the scope of his employment; or otherwise inci- dent to noncombat activities of the Army Na- tional Guard or the Air National Guard, as the case may be, under one of those sections. (b) A claim may be allowed under subsection (a) only if— (1) it is presented in writing within two years after it accrues, except that if the claim accrues in time of war or armed conflict or if such a war or armed conflict intervenes within two years after it accrues, and if good cause is shown, the claim may be presented not later than two years after the war or armed conflict is terminated; (2) it is not covered by section 2734 of title 10 or section 2672 of title 28; (3) it is not for personal injury or death of such a member or a person employed under section 709 of this title, whose injury or death is incident to his service; (4) the damage to, or loss of, property, or the personal injury or death, was not caused whol- ly or partly by a negligent or wrongful act of the claimant, his agent, or his employee, or, if so caused, allowed only to the extent that the law of the place where the act or omission complained of occurred would permit recovery from a private individual under like cir- cumstances; and (5) it is substantiated as prescribed in regu- lations of the Secretary concerned. For the purposes of clause (1), the dates of the beginning and end of an armed conflict are the dates established by concurrent resolution of Congress or by a determination of the President. (c) Payment may not be made under this sec- tion for reimbursement for medical, hospital, or burial services furnished at the expense of the United States or of any State or the District of Columbia or Puerto Rico. (d) If the Secretary concerned considers that a claim in excess of $100,000 is meritorious, and the claim otherwise is payable under this sec- tion, the Secretary may pay the claimant $100,000 and report any meritorious amount in excess of $100,000 to the Secretary of the Treas- ury for payment under section 1304 of title 31. (e) Except as provided in subsection (d), no claim may be paid under this section unless the amount tendered is accepted by the claimant in full satisfaction. (f) Under regulations prescribed by the Sec- retary concerned, an officer or employee under the jurisdiction of the Secretary may settle a claim that otherwise would be payable under this section in an amount not to exceed $25,000. A decision of the officer or employee who makes a final settlement decision under this section may be appealed by the claimant to the Sec- retary concerned or an officer or employee des- ignated by the Secretary for that purpose. (g) Notwithstanding any other provision of law, the settlement of a claim under this section is final and conclusive. (h) In this section, ‘‘settle’’ means consider, ascertain, adjust, determine, and dispose of a claim, whether by full or partial allowance or disallowance. (Added Pub. L. 86–740, § 1(1), Sept. 13, 1960, 74 Stat. 878; amended Pub. L. 87–649, § 8(b), Sept. 7, 1962, 76 Stat. 495; Pub. L. 90–486, § 2(3), Aug. 13, 1968, 82 Stat. 756; Pub. L. 90–525, § 6, Sept. 26, 1968, 82 Stat. 878; Pub. L. 91–312, § 3, July 8, 1970, 84 Stat. 412; Pub. L. 92–445, Sept. 29, 1972, 86 Stat. 745; Pub. L. 93–336, § 3, July 8, 1974, 88 Stat. 292; Pub. L. 98–564, § 4, Oct. 30, 1984, 98 Stat. 2919; Pub. L. 104–316, title II, § 202(r), Oct. 19, 1996, 110 Stat. 3844.) Editorial Notes AMENDMENTS 1996—Subsec. (d). Pub. L. 104–316 substituted ‘‘Sec- retary of the Treasury’’ for ‘‘Comptroller General’’. 1984—Subsec. (a). Pub. L. 98–564, § 4(1), substituted ‘‘$100,000’’ for ‘‘$25,000’’. Subsec. (d). Pub. L. 98–564, § 4(2), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as fol- lows: ‘‘If the Secretary of the military department con- cerned considers that a claim in excess of $25,000 is meritorious and would otherwise be covered by this section, he may pay the claimant $25,000 and report the excess to Congress for its consideration’’. Subsec. (f). Pub. L. 98–564, § 4(3), amended subsec. (f) generally. Prior to amendment, subsec. (f) read as fol- lows: ‘‘In any case where the amount to be paid is not more than $5,000, the authority contained in subsection (a) may be delegated to any officer of the Army or the Air Force, as the case may be, who has been delegated authority under section 2733(g) of title 10, to settle similar claims, subject to appeal to the Secretary con- cerned, or his designee for that purpose’’. 1974—Subsecs. (a), (d). Pub. L. 93–336, § 3(1), (2), sub- stituted ‘‘$25,000’’ for ‘‘$15,000’’. Subsec. (f). Pub. L. 93–336, § 3(3), substituted ‘‘$5,000’’ for ‘‘$2,500’’. 1972—Subsec. (b)(4). Pub. L. 92–445 inserted provision that claim may be allowed to extent that law of place Page 54 TITLE 32—NATIONAL GUARD § 716 where act or omission complained of occurred would permit recovery from a private individual under simi- lar circumstances, when damage to or loss of property, or personal injury or death was caused wholly or partly by a negligent or wrongful act of claimant, his agent, or his employee. 1970—Subsecs. (a), (d). Pub. L. 91–312 substituted ‘‘$15,000’’ for ‘‘$5,000’’. 1968—Subsec. (a). Pub. L. 90–486 struck out ‘‘caused by a person employed under section 709 of this title acting within the scope of his employment;’’ after ‘‘acting within the scope of his employment;’’. Subsec. (f). Pub. L. 90–525 increased limitation on amount of settlement from $1,000 to $2,500 and provided for appeals to Secretary concerned, or his designee, from determinations delegating authority to settle claims to an officer of the Army or the Air Force. 1962—Subsec. (a)(3). Pub. L. 87–649 substituted ‘‘sec- tion 206 of title 37’’ for ‘‘section 301 of title 37’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90–486 effective Jan. 1, 1968, except that no deductions or withholding from salary which result therefrom shall commence before the first day of the first pay period that begins on or after Jan. 1, 1968, see section 11 of Pub. L. 90–486, set out as a note under section 709 of this title. EFFECTIVE DATE OF 1962 AMENDMENT Amendment by Pub. L. 87–649 effective Nov. 1, 1962, see section 15 of Pub. L. 87–649, set out as an Effective Date note preceding section 101 of Title 37, Pay and Al- lowances of the Uniformed Services. SAVINGS PROVISION FOR CLAIMS ARISING BEFORE JANUARY 1, 1969 Settlement and payment of claims arising under this section before January 1, 1969, see section 3(a) of Pub. L. 90–486, set out as a note under section 709 of this title. § 716. Claims for overpayment of pay and allow- ances, and travel and transportation allow- ances (a) A claim of the United States against a per- son arising out of an erroneous payment of any pay or allowances made before, on, or after Oc- tober 2, 1972, or arising out of an erroneous pay- ment of travel and transportation allowances, to or on behalf of a member or former member of the National Guard, the collection of which would be against equity and good conscience and not in the best interest of the United States, may be waived in whole or in part by— (1) the Director of the Office of Management and Budget; or (2) the Secretary concerned, as defined in section 101(5) of title 37, when— (A) the claim is in an amount aggregating not more than $10,000; and (B) the waiver is made in accordance with standards which the Director of the Office of Management and Budget shall prescribe. (b) The Director of the Office of Management and Budget or the Secretary concerned, as the case may be, may not exercise his authority under this section to waive any claim— (1) if, in his opinion, there exists, in connec- tion with the claim, an indication of fraud, misrepresentation, fault, or lack of good faith on the part of the member or any other person having an interest in obtaining a waiver of the claim; or (2) if application for waiver is received in his office after the expiration of five years imme- diately following the date on which the erro- neous payment was discovered. (c) A person who has repaid to the United States all or part of the amount of a claim, with respect to which a waiver is granted under this section, is entitled, to the extent of the waiver, to refund, by the department concerned at the time of the erroneous payment, of the amount repaid to the United States, if he applies to that department for that refund within two years fol- lowing the effective date of the waiver. The Sec- retary concerned shall pay from current applica- ble appropriations that refund in accordance with this section. (d) In the audit and settlement of accounts of any accountable officer or official, full credit shall be given for any amounts with respect to which collection by the United States is waived under this section. (e) An erroneous payment, the collection of which is waived under this section, is considered a valid payment for all purposes. (f) This section does not affect any authority under any other law to litigate, settle, com- promise, or waive any claim of the United States. (Added Pub. L. 92–453, § 2(1), Oct. 2, 1972, 86 Stat. 759; amended Pub. L. 96–513, title V, § 515(9), Dec. 12, 1980, 94 Stat. 2937; Pub. L. 99–224, § 3(a), Dec. 28, 1985, 99 Stat. 1742; Pub. L. 102–190, div. A, title VI, § 657(c), Dec. 5, 1991, 105 Stat. 1393; Pub. L. 104–316, title I, § 116, Oct. 19, 1996, 110 Stat. 3835; Pub. L. 109–364, div. A, title VI, § 671(b), Oct. 17, 2006, 120 Stat. 2270.) Editorial Notes AMENDMENTS 2006—Subsec. (a)(2)(A). Pub. L. 109–364, § 671(b)(1), sub- stituted ‘‘$10,000’’ for ‘‘$1,500’’. Subsec. (b)(2). Pub. L. 109–364, § 671(b)(2), substituted ‘‘five’’ for ‘‘three’’. 1996—Subsec. (a)(1). Pub. L. 104–316, § 116(1)(A), sub- stituted ‘‘Director of the Office of Management and Budget’’ for ‘‘Comptroller General’’. Subsec. (a)(2). Pub. L. 104–316, § 116(1)(B), inserted ‘‘and’’ at end of subpar. (A), redesignated subpar. (C) as (B) and substituted ‘‘Director of the Office of Manage- ment and Budget’’ for ‘‘Comptroller General’’, and struck out former subpar. (B) which read as follows: ‘‘the claim is not the subject of an exception made by the Comptroller General in the account of any account- able officer or official; and’’. Subsec. (b). Pub. L. 104–316, § 116(2), substituted ‘‘The Director of the Office of Management and Budget’’ for ‘‘Comptroller General’’ in introductory provisions. 1991—Subsec. (a)(2)(A). Pub. L. 102–190 substituted ‘‘$1,500’’ for ‘‘$500’’. 1985—Pub. L. 99–224, § 3(a)(1), substituted ‘‘and travel’’ for ‘‘other than travel’’ in section catchline. Subsec. (a). Pub. L. 99–224, § 3(a)(2), substituted ‘‘made before, on, or after October 2, 1972, or arising out of an erroneous payment of travel and transportation allow- ances’’ for ‘‘, other than travel and transportation al- lowances, made before or after October 2, 1972’’. Subsec. (b)(2). Pub. L. 99–224, § 3(a)(3), struck out ‘‘of pay or allowances, other than travel and transpor- tation allowances,’’ before ‘‘was discovered’’. 1980—Subsec. (a). Pub. L. 96–513 substituted ‘‘October 2, 1972’’ for ‘‘the effective date of this section’’.