to the drunk driving of the serviceman, such costs can be recovered by a claim.

Most claims filed under the Foreign Claims Act, however, arise from the more mundane occurrences of everyday living, such as traffic accidents and disorderly conduct.

Certain international agreements and government directives must also be consulted before assuming jurisdiction. Status of Forces Agreements between the United States and other nations have preempted the coverage of certain claims. The NATO SOFA, for example, provides that claims arising from line of duty conduct will be considered only by the Receiving State (the state where the troops are stationed). The Receiving State will adjudicate these claims by its own internal laws and award appropriate compensation. It will then be reimbursed, 75% of the amount of the award, by the Sending State. Claims arising from actions done beyond the scope of employment or line of duty continue to be settled according to the Foreign Claims Act. To determine how line of duty claims should be handled in countries having these SOF Agreements, the specific SOFA and the directives of the appropriate area commander should be consulted. These directives often alter the procedure to be followed by a Foreign Claims Commission and should, therefore, be examined before any action is taken in order to insure a speedy and proper adjudication of each claim.

For example, a COMSIXTHFLT Instruction & provides that when units of the Sixth Fleet are in foreign ports, the Senior Officer Present Afloat shall appoint a Foreign Claims Commission to adjudicate all non-line of duty claims of $200.00 or less. This procedure is intended to promote the rapid settlement of small claims.

Finally, the Foreign Claims Regulations should be checked to see if the claim is one arising where the Navy has single-service responsibility.9

Present regulations 10 promulgated by the Judge Advocate General permit Foreign Claims Commissions to be convened by any Naval attaché and by any commanding officer of the naval service. These Commissions may be standing Commissions hearing all claims that arise during their period of appointment. A one officer Commission (it may be either a Navy

7. NATO/SOF Agreement; Art. VIII.

8. COMSIXTHFLT INST 5800.2G, Subj: Procedures for investigation of foreign claims and procedures for settlement of small claims.

9. JAG Manual, sec. 2229 (b).

< 10. JAG Manual, sec. 2218.

or Marine Corps officer and it may be a Coast Guard officer when the Coast Guard is operating under the jurisdiction of the Navy) can consider claims of $1,000.00 or less. A three member Commission can hear claims of $1,000.00 to $15,000.00. However, claims awards of $2,500.00 to $5,000.00 must be approved by the convening authority before they become final, and awards in excess of $5,000.00 must be approved by the Judge Advocate General or, in the case of claims arising in Australia or Italy, by the Officer in Charge, U.S. Sending State Office.

After the Commission receives a claim and after it determines it properly has jurisdiction, it then decides the validity of the claim and the amount to be awarded. In doing this it can hear statements of the claimant, the offender, and eyewitnesses. The Commission is not bound by the rules of evidence which apply in court. It can make use of hearsay statements and other evidence which would ordinarily be excluded from a courtroom. Its task is that of balancing the equities. It adjudicates the claim on the basis of whether or not there has been an injury or damage suffered and whether or not a member of the Naval Establishment was the cause.11

ADJUDICATING THE CLAIM

No formal procedure is prescribed for the conduct of the Commission. However, the procedure of courts of inquiry and boards of investigation should be followed as much as practicable. Beyond that, the Commission is free to conduct its investigation informally and proceed in any manner it feels will best elicit the facts and help it reach a determination acceptable to the claimant, keeping always in mind that the purpose of the Foreign Claims Act is to promote good will and enhance the friendship and respect of foreign citizens for the people and Government of the United States.

The Commission should make itself available to the claimant to assist him in preparing the necessary claims forms and in explaining the claims procedure. It should not commit itself to any decision prior to hearing all the evidence but should express the Navy's regret for any injury or damage the claimant may have suffered and assure him that every consideration will be given to his claim.

The success of the Foreign Claims Commission in achieving the purposes of Congress will

11. The fact that the claimant has been contributorily negligent will not necessarily preclude his recovery. The Commission should examine the law of the place of the incident to determine if contributory negligence is a complete bar to recovery or merely reduces the amount of recovery.

depend as much on its speed, fairness, and diplomatic skills as on the amount of the award granted.

In determining the amount of recovery, the Commission should inquire into whether or not the claimant is covered by insurance. If he is, the Commission should hold its findings and recommendations in abeyance until it is determined what portion of the damages the insurer will bear. If the insurer's award is considered inadequate, the Commission can award an amount equal to the difference between the insurer's award and the amount it considers should be given to the victim to make him whole again. It should also be remembered that the Foreign Claims Act does not provide for the settlement of claims of the insurer or any other subrogee. Claims by the insurer for money it has paid the victim are not allowed by the Act. Similarly, doctors' fees, hospital expenses, etc., are not proper claims when filed by the persons or institutions rendering these services. These expenses when paid by the victim are proper expenses to be included in his foreign claim.

If

After examining all the evidence, the Commission informs the claimant of its decision. there is a monetary award and if the claimant is willing to accept it, the Commission should secure a release from liability for all damages and injuries arising from the incident, before payment is rendered. This release will state the amount of the award, both in the local currency and in the dollar amount, and when signed will accompany the Commission's report. This report will be forwarded to the convening authority. For an enumeration of the specific contents of such a report, Section 2221 of the Foreign Claims Regulations 12 should be examined.

After its report is forwarded, the work of the Foreign Claims Commission is completed. Awards in excess of $2,500.00 are subject to the approval of higher authority, but if the Commission has conducted its proceedings in compliance with the Foreign Claims Act and the Foreign Claims Regulations, this approval will ordinarily be given and the case will not be reopened in the absence of newly discovered evidence.

It has not been the purpose of this article to give a detailed discussion of each provision of the Foreign Claims Act and the Regulations promulgated thereunder, but rather to give a general outline of the purposes and procedures of the Act and Regulations and to point out some

12. JAG Manual, sec. 2221.

of the more common pitfalls of the claims adjudicating process. Officers who are appointed to Foreign Claims Commissions should thoroughly familiarize themselves with the Foreign Claims Regulations and the directives of the cognizant area commander before acting on a claim. The Regulations are for the most part self-explanatory, and if followed will result in the rapid and efficient settlement of claims.

The Foreign Claims Act is intended by Congress to be an effective aid in promoting America's prestige abroad and in earning for her the respect and friendship of the other Governments and peoples of the world. If the Act and its Regulations are followed with diligence, dispatch, and diplomacy, the purpose for which they are intended will be served.

RETIRED MILITARY PERSONNEL

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viewed as reflecting adversely upon the service involved. In short, Congress may feel that it creates a bad image for retired servicemen to be acting in a public relations or similar capacity for foreign interests. If Sec. 219 is designed in part to carry out this broader purpose, it arguably should apply to all retired servicemen, Regular and Reserve, officer and enlisted.

A hopeful note has been sounded by an informal indication from the Department of Justice that Sec. 219 will not be applied to any member of the uniformed services not on active duty. The basis for this conclusion is not, however, apparent. It is hoped that a formal opinion from the Attorney General will eventually be forthcoming which will clarify the application, if any, of Sec. 219 to retired military personnel.

Section 219 is an imprecise measure at best. Its purpose is unclear and its terminology undefined. Its provisions would seem to encompass retired Regular officers; but, beyond that, its application to retired military personnel is unclear. Under the present state of the law, a retired officer or enlisted man would be best advised to refrain from engaging in the types of employment covered by the Act. In the event he contemplates such employment, he should seek advice from the Judge Advocate General concerning more recent interpretations of the law.

UNREASONABLE REFUSAL

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naval service without the benefits provided by 10 U.S.C. Chapter 61 (retirement or severance pay, as applicable). This is a harsh result in the case of a disabled member, since disability, by definition, is an impairment to future incomeproducing potential. Nevertheless, considerations of importance to the Government in such a case must also be taken into account. The Government spends varying amounts of time and money to train a member to perform a useful and necessary task. His disability prevents him from performing the job he was trained to do.

However, medical or surgical treatment can often be expected to restore such member to a duty status. If the member refuses treatment, he remains unfit, and must be released. Why should the Government provide retirement or severence pay to such an individual if his refusal is unreasonable? Both from the viewpoint of promoting military discipline and from

the viewpoint of preventing unjust enrichment, a denial of benefits would appear to be an appropriate measure.

Since the end result is often a harsh one, however, application of the doctrine of unreasonable refusal must be careful and thoughtful, with due consideration given to the humanitarian aspects of the individual case. As we have seen, a member's emotional health as well as previous attempts at treatment are important factors to be considered. The ultimate determination of misconduct is a factual one, and should be made after a review of all pertinent medical evidence. Finally, the concept of unreasonable refusal must be retained as a flexible and dynamic one; every day brings new advances in medical and surgical techniques, and the reasonableness of a refusal must be considered in the light of current expert medical opinion.