B-150592, MAY 31, 1963

B-150592, MAY 31, 1963

TO MR. FRANZ RATZINGER:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 22, 1963, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR 4,800 AUSTRIAN SCHILLINGS, PLUS INTEREST, REPRESENTING AN AMOUNT ALLEGED TO HAVE BEEN DEPOSITED TO SECURE FAITHFUL PERFORMANCE OF RECONSTRUCTION WORK IN 1953 ON A MESSHALL IN CAMP TRUSCOTT, SALZBURG, AUSTRIA. THE CLAIM WAS DISALLOWED BY OUR OFFICE ON NOVEMBER 27, 1962, AND THAT ACTION WAS SUSTAINED BY OUR DECISION OF JANUARY 23, 1963, B -150592.

YOUR CLAIM WAS DENIED BECAUSE THERE WAS INSUFFICIENT EVIDENCE UPON WHICH TO ESTABLISH LIABILITY ON THE PART OF THE UNITED STATES. IN REQUESTING REVIEW OF THE SETTLEMENT YOU OFFER AS EVIDENCE A NOTARIZED COPY OF A LETTER DATED NOVEMBER 22, 1953, RELATING TO THE RELEASE OF A BOND OWED TO YOU. THE LETTER IS AS FOLLOWS:

"USFA-GENERAL. SPECIAL PROJECT ENGINEER SECTION. SALZBURG, AUSTRIA, TO FRANZ RATZINGER, BUILDER, SALZBURG, RUPERTIWINKELSTR.

"ACCOUNT 1219 NOV. 22, 1953 TRUSCOTT

"YOU ARE HEREWITH INFORMED THAT THE BOND OF 4,800 AUSTRIAN SCHILLINGS, OWED TO YOU FROM THE TOTAL CONTRACT OF 96,000 AUSTRIAN SCHILLINGS FOR THE REMODELING OF THE MESSHALL OF CAMP TRUSCOTT WILL BE RELEASED FOR PAYMENT AFTER THE EXPIRATION OF THE SIX MONTH'S GUARANTEE PERIOD, THAT IS ON APRIL 28, 1954.

"YOU WILL BE NOTIFIED IN GOOD TIME OF THE LAST INSPECTION (SPECIFICATION), WHICH HAS NOT YET TAKEN PLACE.

"AUTHENTICATED BY A NOTARY PUBLIC SIGNED: COLONEL TSCHOISS

IN WIENER NEUSTADT ON 12/14/62 RESIDENT CHIEF ENGINEER"

IN OUR DECISION OF JANUARY 23, 1963, WE STATED THAT IN VIEW OF THE FACT THAT THE DEPARTMENT OF THE ARMY RECORDS FAIL TO DISCLOSE THE EXISTENCE OF A COLONEL TSCHOISS AND OF A CONTRACT COVERING THE WORK ALLEGED TO HAVE BEEN PERFORMED BY YOU AT CAMP TRUSCOTT, THE LETTER THEN SUBMITTED BY YOU AS EVIDENCE OF THE POSTING OF A BOND WITH COLONEL TSCHOISS MAY NOT BE ACCEPTED BY OUR OFFICE AS ESTABLISHING A PROPER BASIS FOR HOLDING THE UNITED STATES LEGALLY LIABLE FOR THE BOND IN QUESTION.

IN YOUR LETTER OF MARCH 22, 1963, YOU STATE THAT PERHAPS WE SHOULD CONTACT THE CHIEF, CLAIMS SECTION, JUDGE ADVOCATE DIVISION HEADQUARTERS, U.S. ARMY, EUROPE, HEIDELBERG, GERMANY, FOR INFORMATION ON YOUR CLAIM. THAT CONNECTION, THE RECORD INDICATES THAT THE ABOVE OFFICE HAS TRIED TO LOCATE EVIDENCE IN SUPPORT OF YOUR CLAIM BUT WITHOUT SUCCESS.

IN OUR DECISION WE SUGGESTED THAT, IF YOU HAVE IN YOUR POSSESSION A COPY OF THE CONTRACT OR THE ORIGINAL OF THE LETTER FROM COLONEL TSCHOISS OR A COPY OF THE VOUCHER COVERING PAYMENT TO YOU FOR THE WORK PERFORMED, SUCH DOCUMENTS OR PHOTOSTATS THEREOF BE SUBMITTED TO OUR OFFICE FOR FURTHER CONSIDERATION. YOU NOW SUBMIT A PHOTOSTATIC COPY OF THE ORIGINAL LETTER FROM COLONEL TSCHOISS. WE HAVE CLOSELY EXAMINED SUCH LETTER AND WHILE IT DOES CONTAIN THE SIGNATURE OF COLONEL TSCHOISS, IT ALONE MAY NOT BE ACCEPTED BY OUR OFFICE AS ESTABLISHING A PROPER BASIS FOR HOLDING THE UNITED STATES LEGALLY LIABLE FOR THE BOND IN QUESTION, PARTICULARLY SINCE THE DEPARTMENT OF THE ARMY RECORDS FAIL TO DISCLOSE THE EXISTENCE OF A COLONEL TSCHOISS.

ACCORDINGLY, IN THE ABSENCE OF EVIDENCE ESTABLISHING THE LIABILITY OF THE UNITED STATES, WE MUST AFFIRM OUR DECISION OF JANUARY 23, 1963.