A-20049, FEBRUARY 8, 1928, 7 COMP. GEN. 467

A-20049: Feb 8, 1928

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PUBLIC PROPERTY - DAMAGES - RESPONSIBILITY OF ARMY ENLISTED MAN - EFFECT OF COURT-MARTIAL PROCEEDINGS THE ACQUITTAL BY AN ARMY COURT-MARTIAL OF AN ENLISTED MAN ON CHARGES UNDER THE EIGHTY-THIRD ARTICLE OF WAR OF THE OFFENSE OF HAVING THROUGH NEGLECT SUFFERED MILITARY PROPERTY OF THE UNITED STATES TO BE DAMAGED IS NOT CONCLUSIVE OF HIS LIABILITY TO PAY FOR THE DAMAGE WHERE HIS RESPONSIBILITY THEREFOR IS DETERMINED BY THE APPROVED FINDINGS OF A SURVEYING OFFICER UNDER THE PROVISIONS OF SECTION 1303. WHEREBY THERE WAS DISALLOWED HIS CLAIM FOR REFUND OF THE AMOUNT DEDUCTED FROM HIS PAY UPON DISCHARGE MAY 18. FOR THE WRECK OF WHICH HE WAS FOUND JOINTLY RESPONSIBLE. WAS ON GUARD DUTY AT STANFORD UNIVERSITY.

A-20049, FEBRUARY 8, 1928, 7 COMP. GEN. 467

PUBLIC PROPERTY - DAMAGES - RESPONSIBILITY OF ARMY ENLISTED MAN - EFFECT OF COURT-MARTIAL PROCEEDINGS THE ACQUITTAL BY AN ARMY COURT-MARTIAL OF AN ENLISTED MAN ON CHARGES UNDER THE EIGHTY-THIRD ARTICLE OF WAR OF THE OFFENSE OF HAVING THROUGH NEGLECT SUFFERED MILITARY PROPERTY OF THE UNITED STATES TO BE DAMAGED IS NOT CONCLUSIVE OF HIS LIABILITY TO PAY FOR THE DAMAGE WHERE HIS RESPONSIBILITY THEREFOR IS DETERMINED BY THE APPROVED FINDINGS OF A SURVEYING OFFICER UNDER THE PROVISIONS OF SECTION 1303, REVISED STATUTES, THE ACT OF AUGUST 29, 1916, 39 STAT. 635, AND ARMY REGULATIONS PURSUANT THERETO.

DECISION BY COMPTROLLER GENERAL MCCARL, FEBRUARY 8, 1928:

GEORGE J. BRUNS, CORPORAL, SECOND OBSERVATION SQUADRON, AIR CORPS, UNITED STATES ARMY, HAS REQUESTED REVIEW OF SETTLEMENT NO. 0157514, DATED APRIL 2, 1927, WHEREBY THERE WAS DISALLOWED HIS CLAIM FOR REFUND OF THE AMOUNT DEDUCTED FROM HIS PAY UPON DISCHARGE MAY 18, 1926, AS PRIVATE, D.E.M.L., STANFORD UNIVERSITY, CALIF., ON ACCOUNT OF A CHARGE OF $83.33 ASSESSED AGAINST HIM BY THE APPROVED FINDINGS OF AN ARMY SURVEYING OFFICER AS HIS SHARE OF THE DAMAGES TO A GOVERNMENT-OWNED AUTOMOBILE, FOR THE WRECK OF WHICH HE WAS FOUND JOINTLY RESPONSIBLE.

IT APPEARS THAT ON THE MORNING OF FEBRUARY 14, 1926, BETWEEN 5 AND 6 O- CLOCK WHILE BRUNS, THEN A PRIVATE, WAS ON GUARD DUTY AT STANFORD UNIVERSITY, THE AUTOMOBILE IN QUESTION, A DODGE TOURING CAR, WAS, WITHOUT AUTHORITY, REMOVED FROM ITS GARAGE NEAR THE GUARDHOUSE BY CERTAIN SOLDIERS AND CIVILIANS FOR THE PURPOSE OF TAKING SOME OF THEIR NUMBER TO THEIR HOMES FOLLOWING AN ALL-NIGHT DRINKING PARTY WHICH HAD ENDED AT THE GUARDHOUSE IN THE EARLY MORNING. WHILE BEING SO USED THE CAR LEFT THE ROAD ABOUT A MILE AND A HALF FROM THE GARAGE, TURNED OVER, AND WAS WRECKED. THE STATEMENTS OF THE VARIOUS PERSONS CONCERNED ARE IN CONFLICT AS TO WHETHER BRUNS, THE GUARD, GAVE THE GARAGE KEY TO A MEMBER OF THE PARTY OR WHETHER IT WAS TAKEN WITH OR WITHOUT HIS KNOWLEDGE FROM THE GUARDHOUSE TABLE, AND AS TO THE EXTENT THAT BRUNS WAS ACTUALLY IMPLICATED IN OR HAD KNOWLEDGE OF THE UNAUTHORIZED REMOVAL OF THE AUTOMOBILE. DOES APPEAR, HOWEVER, THAT HE WAS NOT ACTUALLY PRESENT WHEN THE CAR WAS TAKEN, BUT HAD GONE TO BUILD A FIRE IN THE DETACHMENT KITCHEN, WHICH WAS ABOUT 75 YARDS DISTANT FROM THE GARAGE.

THE REPORT OF THE SURVEYING OFFICER APPOINTED TO DETERMINE THE AMOUNT OF DAMAGE TO THE AUTOMOBILE AND TO FIX THE RESPONSIBILITY THEREFOR WAS APPROVED MARCH 16, 1926, AND IT WAS DIRECTED THAT THE DAMAGES, FIXED AT $250, SHOULD BE ASSESSED EQUALLY AMONG THE THREE ENLISTED MEN, INCLUDING BRUNS, THEREIN NAMED. ON APRIL 23, 1926, BRUNS WAS TRIED BEFORE A SPECIAL COURT-MARTIAL FOR VIOLATION OF THE EIGHTY THIRD ARTICLE OF WAR UNDER THE FOLLOWING SPECIFICATION:

IN THAT PRIVATE GEORGE J. BRUNS, D.E.M.L. (6524935), STANFORD UNIVERSITY, CALIFORNIA, DID AT STANFORD UNIVERSITY, CALIFORNIA, ON OR ABOUT FEBRUARY 14, 1926, THROUGH NEGLECT SUFFER ONE (1) DODGE TOURING CAR, AT THE VALUE OF TWELVE HUNDRED AND FIFTY DOLLARS ($1,250.00), MILITARY PROPERTY OF THE UNITED STATES, TO BE DAMAGED BY COLLISION.

HE WAS FOUND NOT GUILTY OF THE SPECIFICATION AND CHARGE AND WAS ACQUITTED BY THE COURT. HE NOW CONTENDS THAT THE FINDINGS OF THE COURT-MARTIAL ARE CONCLUSIVE AS TO HIS RESPONSIBILITY FOR THE DAMAGE IN QUESTION, AND THAT, THEREFORE, THE DEDUCTION FROM HIS PAY OF ANY AMOUNT ON ACCOUNT OF SUCH DAMAGE WAS WITHOUT AUTHORITY OF LAW.

THE EIGHTY-THIRD ARTICLE OF WAR, ACT OF JUNE 4, 1920, 41 STAT. 804, PROVIDES:

ANY PERSON SUBJECT TO MILITARY LAW WHO WILLFULLY OR THROUGH NEGLECT SUFFERS TO BE LOST, SPOILED, DAMAGED, OR WRONGFULLY DISPOSED OF ANY MILITARY PROPERTY BELONGING TO THE UNITED STATES SHALL MAKE GOOD THE LOSS OR DAMAGE AND SUFFER SUCH PUNISHMENT AS A COURT-MARTIAL MAY DIRECT.

IF THIS WERE THE ONLY PROVISION OF LAW FOR CHARGING AN ENLISTED MAN WITH THE VALUE OF GOVERNMENT PROPERTY FOR THE LOSS OR DAMAGE OF WHICH HE IS FOUND RESPONSIBLE, CLAIMANT'S CONTENTIONS WITH RESPECT TO THE EFFECT OF THE FINDINGS OF THE COURT-MARTIAL WOULD REQUIRE MORE CAREFUL CONSIDERATION. BUT EVEN THEN THERE WOULD BE FOR CONSIDERATION THE HIGHLY TECHNICAL NATURE OF COURT-MARTIAL PROCEEDINGS, THE FUNDAMENTAL DIFFERENCE BETWEEN THE DEGREE OF PROOF REQUIRED TO SUPPORT A CRIMINAL CONVICTION AND TO FIX A CIVIL LIABILITY FOR MONEY DAMAGES, AND THE FACT THAT THE EIGHTY- THIRD ARTICLE OF WAR IS PRIMARILY PUNITIVE IN ITS PURPOSE AND THAT A COURT -MARTIAL CONVENED TO TRY CHARGES OF ITS VIOLATION IS FOR THE PURPOSE, THE SAME AS OTHER COURTS-MARTIAL, OF ENFORCING MILITARY DISCIPLINE AND NOT TO DETERMINE QUESTIONS OF CIVIL LIABILITY.

DIG.OP.J.A.G. ARMY, 1912, P. 869. IN THIS CONNECTION SEE ALSO WINTHROP'S MILITARY LAW AND PRECEDENTS, PAGE 559, REPRINT OF 1920, FOR A DISCUSSION OF THE CRIMINAL SIGNIFICANCE OF THE TERM ,THROUGH NEGLECT" AS USED IN THE FORMER FIFTEENTH ARTICLE OF WAR, SECTION 1342, REVISED STATUTES, AN ARTICLE SIMILAR IN WORDING TO THE PRESENT EIGHTY THIRD ARTICLE OF WAR.

HOWEVER, IT IS NOT EVERY CASE OF LOSS OF OR DAMAGE TO GOVERNMENT PROPERTY, FOR WHICH A PERSON IN THE MILITARY SERVICE MAY BE FOUND PECUNIARILY LIABLE, THAT IS COGNIZABLE AS A COURT-MARTIAL OFFENSE, AND THERE EXISTS SUFFICIENT AUTHORITY OF LAW, IRRESPECTIVE OF THE EIGHTY THIRD ARTICLE OF WAR, FOR THE DEDUCTION HERE IN QUESTION.

SECTION 1303, REVISED STATUTES, PROVIDES:

THE COST OF REPAIRS OR DAMAGES DONE TO ARMS, EQUIPMENTS, OR IMPLEMENTS, SHALL BE DEDUCTED FROM THE PAY OF ANY OFFICER OR SOLDIER IN WHOSE CARE OR USE THE SAME WERE WHEN SUCH DAMAGES OCCURRED, IF SAID DAMAGES WERE OCCASIONED BY THE ABUSE OR NEGLIGENCE OF SAID OFFICER OR SOLDIER.

IT IS OBVIOUS THAT THE "ABUSE OR NEGLIGENCE" HERE SPECIFIED AS SUFFICIENT REASON OR JUSTIFICATION FOR DEDUCTION FROM THE PAY OF AN OFFICER OR SOLDIER FOR THE DAMAGE OCCASIONED TO GOVERNMENT PROPERTY THEREBY, MAY BE OF A LESSER OR DIFFERENT CHARACTER THAN THE OFFENSE OF ,WILLFULLY, OR THROUGH NEGLECT" SUFFERING TO BE LOST, ETC., MADE A PUNISHABLE OFFENSE UNDER THE EIGHTY-THIRD ARTICLE OF WAR, AND THAT AN ACQUITTAL OF CHARGES UNDER SUCH ARTICLE WOULD NOT BE CONCLUSIVE AS TO THE PERSON'S PECUNIARY LIABILITY UNDER SECTION 1303, REVISED STATUTES.

FURTHERMORE, THE ACT OF AUGUST 29, 1916, 39 STAT. 635, PROVIDES:

THAT HEREAFTER THE ACCOUNTING FOR ARMY SUPPLIES OR PROPERTY AND THE FIXING OF RESPONSIBILITY THEREFOR SHALL BE ACCORDING TO SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF WAR.

ARMY REGULATIONS 35-6640, AUGUST 5, 1925, ARE IN PART AS FOLLOWS:

2. LOSS OR DAMAGE CHARGEABLE TO OFFICERS OR ENLISTED MEN--- A. GENERAL.-- - IF ANY ARTICLE OF PUBLIC PROPERTY IS LOST OR DAMAGED BY THE FAULT OR NEGLECT OF ANY OFFICER OR ENLISTED MAN, HE WILL BE REQUIRED TO PAY THE VALUE THEREOF, OR THE COST OF REPAIRS, IN SUCH AMOUNT AS MAY BE DETERMINED BY A SURVEY OF THE PROPERTY, IF NECESSARY. * * *

(2) THE AMOUNT CHARGED AGAINST AN ENLISTED MAN ON THE PAY ROLL ON ACCOUNT OF LOSS OR DAMAGE OF, OR REPAIRS TO, PUBLIC PROPERTY WILL NOT EXCEED THE VALUE OF THE ARTICLE, OR THE COST OF REPAIR, AND SUCH A CHARGE WILL BE MADE ONLY ON CONCLUSIVE PROOF.

(3) THE ENLISTED MAN WILL BE INFORMED AT THE TIME OF SIGNING THE PAY ROLL THAT HIS SIGNATURE WILL BE REGARDED AS AN ACKNOWLEDGMENT OF THE JUSTICE OF THE CHARGE. HE WILL ALSO BE ADVISED OF HIS RIGHT TO DEMAND A SURVEY AND THAT THE APPROVED RECOMMENDATION OF THE SURVEYING OFFICER WILL BE FINAL.

THIS REGULATION, BASED AS IT IS ON STATUTORY PROVISIONS, HAS THE EFFECT OF LAW AND IS SUFFICIENT AUTHORITY FOR THE FIXING OF RESPONSIBILITY FOR DAMAGES TO PUBLIC PROPERTY AND THE DEDUCTION OF THE AMOUNT OF SUCH DAMAGES FROM THE PAY OF THE PERSONS FOUND RESPONSIBLE. 15 COMP. DEC. 491. IT IS CLEAR, THEREFORE, THAT IRRESPECTIVE OF THE RESULT OF THE PROCEEDINGS UNDER THE EIGHTY-THIRD ARTICLE OF WAR, THERE WAS AMPLE AUTHORITY UNDER THE STATUTES AND REGULATIONS ISSUED PURSUANT THERETO, FOR THE ADMINISTRATIVE DETERMINATION, ENTIRELY INDEPENDENT OF THE COURT-MARTIAL FINDINGS, OF THE RESPONSIBILITY OF THE CLAIMANT FOR THE DAMAGE TO THE GOVERNMENT PROPERTY IN QUESTION AND FOR THE DEDUCTION OF THE AMOUNT OF SUCH DAMAGES FROM HIS PAY. IT IS WELL SETTLED, ALSO, THAT THE ACCOUNTING OFFICERS WILL NOT QUESTION THE CORRECTNESS OF SUCH ADMINISTRATIVE DETERMINATIONS AS TO THE AMOUNT OF LOSS OR DAMAGE TO GOVERNMENT PROPERTY AND THE PERSONS RESPONSIBLE THEREFOR, IN THE ABSENCE OF A CLEAR SHOWING OF SUCH IRREGULARITY OR GROSS ERROR AS WOULD INVALIDATE THE PROCEEDINGS. THERE IS NO EVIDENCE OF SUCH IRREGULARITY OR ERROR IN THE PRESENT CASE.

RELATIVE TO THE BASIS OF THE CHARGE AGAINST THE CLAIMANT THE CHIEF OF FINANCE, UNITED STATES ARMY, REPORTED OCTOBER 19, 1927, IN PART AS FOLLOWS:

2. THE CHARGE RAISED AGAINST PVT. BRUNS IN THIS CASE IS BASED UPON THE REPORT OF THE SURVEYING OFFICER, WHOSE FINDINGS STATE THAT PVT. BRUNS ALLOWED PVTS. MILLER AND TITUS TO OBTAIN POSSESSION OF THE KEY TO THE GARAGE AND TAKE THE CAR. SINCE PVT. BRUNS WAS ON DUTY AS GUARD AT THE TIME, HIS FAILURE TO PREVENT UNAUTHORIZED USE OF THE KEY TO THE GARAGE AND THE CAR STORED THEREIN IS HELD TO BE A VIOLATION OF HIS DUTY WITH RESPECT TO THE PROPERTY IN QUESTION. THE FINDING OF THE SURVEYING OFFICER IS EVIDENTLY BASED UPON THE TESTIMONY OF PVT. MILLER, COPY INCLOSED HEREWITH, WHO HAS STATED THAT PVT. BRUNS GAVE HIM THE KEY TO THE GARAGE FOLLOWING A CONSULTATION BETWEEN BRUNS AND MILLER AS TO HOW BENSON AND THE GIRL COULD BE GOTTEN HOME. IN THE SURVEYING OFFICER'S SUPPLEMENTAL REPORT CONTAINED IN NINTH INDORSEMENT, DATED FEBRUARY 24, 1927, COPY INCLOSED, THE SURVEYING OFFICER INDICATES THAT HE IS CONVINCED THAT BRUNS ACTUALLY GAVE MILLER THE KEY TO THE GARAGE. IT IS NOTED THAT BRUNS DENIED THIS FACT AND CLAIMS THAT HE WAS BUILDING A FIRE IN THE KITCHEN STOVE AT THE TIME THE CAR WAS TAKEN FROM THE GARAGE. THE SURVEYING OFFICER, HOWEVER, AFTER INTERVIEWING THE SEVERAL WITNESSES PERSONALLY AND INVESTIGATING MATTERS AT THE SOURCE, HAS ACCEPTED AS A FACT THE STATEMENT OF PVT. MILLER, AND AFTER CAREFUL REVIEW OF THE PAPERS AT HAND THIS OFFICE IS DISINCLINED TO SET ASIDE THE SURVEYING OFFICER'S FINDINGS AS ERRONEOUS WITHOUT MORE SUBSTANTIAL PROOF THAN THAT SO FAR FURNISHED BY THE CLAIMANT IN THIS CASE.

CLAIMANT'S RESPONSIBILITY FOR THE DAMAGE HAVING BEEN ADMINISTRATIVELY DETERMINED IN ACCORDANCE WITH THE LAW AND REGULATIONS, AND THE CHARGE NOT HAVING BEEN REMOVED BY ANY AUTHORITY VESTED WITH THAT POWER, REFUND OF THE AMOUNT DEDUCTED FROM HIS PAY FOR SUCH DAMAGES IS NOT AUTHORIZED.