10 U.S.C. § 2731: Definition

In this chapter, “settle” means consider, ascertain, adjust, determine, and dispose of a claim, whether by full or partial allowance or by disallowance. Of the funds appropriated in this Act [div. A of Pub. L. 116–93 , see Tables for classification] for the Department of Defense, amounts should be made available, under such regulations as the Secretary of Defense may prescribe, to local military commanders appointed by the Secretary, or by an officer or employee designated by the Secretary, to provide at their discretion ex gratia payments in amounts consistent with subsection (d) of this section for damage, personal injury, or death that is incident to combat operations of the Armed Forces in a foreign country. the prospective foreign civilian recipient is determined by the local military commander to be friendly to the United States; a claim for damages would not be compensable under chapter 163 of title 10, United States Code (commonly known as the ‘Foreign Claims Act’); and the property damage, personal injury, or death was not caused by action by an enemy. Any payments provided under a program under subsection (a) shall not be considered an admission or acknowledgement of any legal obligation to compensate for any damage, personal injury, or death. If the Secretary of Defense determines a program under subsection (a) to be appropriate in a particular setting, the amounts of payments, if any, to be provided to civilians determined to have suffered harm incident to combat operations of the Armed Forces under the program should be determined pursuant to regulations prescribed by the Secretary and based on an assessment, which should include such factors as cultural appropriateness and prevailing economic conditions. Local military commanders shall receive legal advice before making ex gratia payments under this subsection. The legal advisor, under regulations of the Department of Defense, shall advise on whether an ex gratia payment is proper under this section and applicable Department of Defense regulations. A written record of any ex gratia payment offered or denied shall be kept by the local commander and on a timely basis submitted to the appropriate office in the Department of Defense as determined by the Secretary of Defense. The Secretary of Defense shall report to the congressional defense committees [Committees on Armed Services and Subcommittees on Defense of the Committees on Appropriations of the Senate and the House of Representatives] on an annual basis the efficacy of the ex gratia payment program including the number of types of cases considered, amounts offered, the response from ex gratia payment recipients, and any recommended modifications to the program.” During the period beginning on the date of the enactment of this Act [ Dec. 20, 2019 ] and ending on December 31, 2033 , not more than $3,000,000 for each calendar year, to be derived from funds authorized to be appropriated to the Office of the Secretary of Defense under the Operation and Maintenance, Defense-wide account, may be made available for ex gratia payments for damage, personal injury, or death that is incident to the use of force by the United States Armed Forces, a coalition that includes the United States, a military organization supporting the United States, or a military organization supporting the United States or such coalition. the prospective foreign civilian recipient is not otherwise ineligible for payment under any other provision of law; a request for damages would not be compensable under chapter 163 of title 10, United States Code (commonly known as the ‘Foreign Claims Act’); the property damage, personal injury, or death was not caused by action by an enemy; caused by the United States Armed Forces, a coalition that includes the United States, or a military organization supporting the United States or such a coalition; and occurred during an operation carried out by the United States, such coalition, or such military organization; and the prospective foreign civilian recipient had no involvement in planning or executing an attack or other hostile action that gave rise to the use of force by the United States, such coalition, or such military organization resulting in such property damage, personal injury, or death. A payment provided pursuant to the authority under subsection (a) may not be construed or considered as an admission or acknowledgment of any legal obligation to provide compensation for any property damage, personal injury, or death. a formal acknowledgement of such harm; a nonmonetary expression of condolence; or an ex gratia payment. In establishing the procedures under paragraph (1), the Secretary of Defense shall consult with the Secretary of State and with nongovernmental organizations that focus on addressing civilian harm in conflict. Not later than one year after the date of the enactment of this subsection, the Secretary of Defense shall ensure that procedures established under paragraph (1) are formalized through updates to the policy referred to in section 936 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 ( Public Law 115–232 ; 10 U.S.C. 134 note). If the Secretary of Defense determines a payment under subsection (a) to be appropriate in a particular setting, the amounts of payments, if any, to be provided to civilians determined to have suffered harm incident to the use of force by the United States Armed Forces under the program should be determined pursuant to regulations prescribed by the Secretary and based on an assessment, conducted in consultation with the Secretary of State, that includes such factors as cultural appropriateness and prevailing economic conditions. A copy of any regulations so prescribed shall be provided to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] upon finalization. Local military commanders shall receive legal advice before making ex gratia payments under this subsection. The legal advisor, under regulations of the Department of Defense, shall advise on whether an ex gratia payment is proper under this section and applicable Department of Defense regulations. A written record of any ex gratia payment offered pursuant to the authority under subsection (a), and whether accepted or denied, shall be kept by the local military commander and on a timely basis submitted to the appropriate office in the Department of Defense as determined by the Secretary of Defense. The amount used for such payments and the country with respect to which each such payment was made. The manner in which requests for such payments were verified. The position of the official who approved the payment. The manner in which payments are made. when any such request was made; what steps the Department is taking to respond to the request; whether the Department denied any requests for any such payment, along with the reason for such denial; whether any such payment was refused, along with the reason for such refusal, if known; or any other reason for which a payment was not offered or made. The status of Department of Defense efforts to establish the requests procedures required under subsection (d)(1) and to otherwise implement this section. Notwithstanding any other provision of law, the authority provided by this section shall be construed as the sole authority available to make ex gratia payments for property damage, personal injury, or death that is incident to the use of force by the United States Armed Forces.”