A-88590, SEPTEMBER 10, 1937, 17 COMP. GEN. 235

A-88590: Sep 10, 1937

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ARE IN PART WITH RESPECT TO HIS OWN PROPERTY AND IN PART WITH RESPECT TO SAVING LIVES AND GOVERNMENT PROPERTY. CONCLUSIVE EVIDENCE IS NOT AVAILABLE TO ESTABLISH WHETHER HIS DISCONTINUANCE OF EFFORTS TO SAVE HIS OWN PROPERTY IS BEFORE OR AFTER THERE IS NO HOPE OF SAVING SAME. THE DETERMINATION OF THE SECRETARY OF WAR IS CONTROLLING AS TO WHETHER THE CASE COMES WITHIN THE ACT OF MARCH 4. 1937: THERE WAS RECEIVED YOUR LETTER OF AUGUST 21. WHEN THE OFFICER'S QUARTERS THERE WERE DESTROYED BY FIRE. IS STATED THE CLAIMANT WAS ON DUTY AS OFFICER OF THE DAY AND WAS ENGAGED IN MAKING THE NIGHTLY BED CHECK OF THE COMPANY AND WAS ABOUT 100 YARDS FROM THE OFFICERS' QUARTERS WHEN THE ALARM OF FIRE WAS GIVEN.

A-88590, SEPTEMBER 10, 1937, 17 COMP. GEN. 235

PROPERTY--- PRIVATE--- LOST OR DESTROYED--- MILITARY SERVICE WHERE, IN CONNECTION WITH THE DESTRUCTION OF AN ARMY OFFICER'S PRIVATE PROPERTY BY FIRE, THE OWNER'S ACTIVITIES, IMMEDIATELY UPON DISCOVERY OF THE DESTROYING AGENCY, ARE IN PART WITH RESPECT TO HIS OWN PROPERTY AND IN PART WITH RESPECT TO SAVING LIVES AND GOVERNMENT PROPERTY, OR IN THE PERFORMANCE OF AUTHORIZED OR REQUIRED MILITARY DUTIES IN CONNECTION WITH THE HAPPENING, AND CONCLUSIVE EVIDENCE IS NOT AVAILABLE TO ESTABLISH WHETHER HIS DISCONTINUANCE OF EFFORTS TO SAVE HIS OWN PROPERTY IS BEFORE OR AFTER THERE IS NO HOPE OF SAVING SAME, THE DETERMINATION OF THE SECRETARY OF WAR IS CONTROLLING AS TO WHETHER THE CASE COMES WITHIN THE ACT OF MARCH 4, 1921, 41 STAT. 1436, AUTHORIZING PAYMENT FOR THE VALUE OF SUCH PROPERTY UNDER THE CONDITIONS OUTLINED THEREIN.

ACTING COMPTROLLER GENERAL ELLIOTT TO LT. COL. E. C. MORTON, UNITED STATES ARMY, SEPTEMBER 10, 1937:

THERE WAS RECEIVED YOUR LETTER OF AUGUST 21, 1937, ENCLOSING A VOUCHER FOR $301.50, PAYMENT BEING PROPOSED UNDER THE ACT OF MARCH 4, 1921, 41 STAT. 1436, REPRESENTING THE VALUE OF PRIVATE PROPERTY LOST BY FIRST LT. GERALD M. DONAHUE, C.A. RESERVE, UNITED STATES ARMY, WHILE ON ACTIVE DUTY APRIL 9, 1936, AT CAMP F-7, COMPANY 1730, CIVILIAN CONSERVATION CORPS, BUNKER, MO., WHEN THE OFFICER'S QUARTERS THERE WERE DESTROYED BY FIRE. IS STATED THE CLAIMANT WAS ON DUTY AS OFFICER OF THE DAY AND WAS ENGAGED IN MAKING THE NIGHTLY BED CHECK OF THE COMPANY AND WAS ABOUT 100 YARDS FROM THE OFFICERS' QUARTERS WHEN THE ALARM OF FIRE WAS GIVEN; THAT HE RAN TO THE BUILDING AND ATTEMPTED TO ENTER BUT WAS NOT SUCCESSFUL BECAUSE OF THE HEAT AND SMOKE, AND THAT HE THEN TOOK CHARGE OF THE MEN ASSEMBLED TO FIGHT THE FIRE, AND WHEN IT WAS EVIDENT THAT THE BUILDING COULD NOT BE SAVED, HE DIRECTED THE MEN TO GIVE THEIR ATTENTION TO NEARBY BUILDINGS AND NONE OF THESE WAS IGNITED.

THE LOCAL BOARD CONSIDERING THE CLAIM RECOMMENDED DISALLOWANCE AS IN THE OPINION OF THE BOARD THE OFFICER'S PROPERTY WAS BEYOND HOPE OF SAVING WHEN HE ARRIVED AT THE FIRE, AND "HE THEREFORE COULD NOT ELECT TO SAVE GOVERNMENT PROPERTY IN PREFERENCE AND HIS OWN PERSONAL PROPERTY.' THE BOARD OF OFFICERS CONVENED IN THE OFFICE OF THE CHIEF OF FINANCE IS OF THE VIEW THAT THE PROPERTY WAS DESTROYED IN CONSEQUENCE OF ITS OWNER HAVING GIVEN HIS ATTENTION TO THE SAVING OF PROPERTY BELONGING TO THE UNITED STATES WHICH WAS IN DANGER AT THE SAME TIME AND UNDER SIMILAR CIRCUMSTANCES, AND WHEN AT THE TIME OF SUCH LOSS THE CLAIMANT WAS ENGAGED IN AUTHORIZED MILITARY DUTIES IN CONNECTION THEREWITH. THIS LATTER RECOMMENDATION THE ASSISTANT SECRETARY OF WAR HAS APPROVED.

WHERE IT APPEARS THAT THE PROPERTY OF A PERSON IN THE MILITARY SERVICE HAS BEEN DESTROYED BEFORE HE GIVES HIS ATTENTION TO THE SAVING OF LIVES OR TO THE SAVING OF PROPERTY BELONGING TO THE UNITED STATES WHICH IS IN DANGER AT THE SAME TIME AND UNDER SIMILAR CIRCUMSTANCES, OR TO THE PERFORMANCE OF HIS REQUIRED OR AUTHORIZED MILITARY DUTY IN CONNECTION WITH THE CAUSE OF THE DESTRUCTION, IT IS CLEAR THE CASE DOES NOT FALL WITHIN THE CLAUSE OF THE ACT HERE CONSIDERED. THIS CLAUSE OF THE ACT DOES NOT MAKE THE GOVERNMENT AN INSURER OF THE PROPERTY OF PERSONS IN THE MILITARY SERVICE MERELY BECAUSE THEY ARE IN THE VICINITY OF THE CASUALTY CAUSING THE DESTRUCTION. HOWEVER, WHERE THE OWNER OF THE PROPERTY IMMEDIATELY UPON DISCOVERY OF THE DESTRUCTIVE AGENCY GIVES HIS ATTENTION TO PROTECTIVE MEASURES, WHETHER IN ATTEMPTING TO SAVE LIVES OR TO SAVE GOVERNMENT PROPERTY IN DANGER AT THE SAME TIME AND IN SIMILAR CIRCUMSTANCES, OR ENGAGES IN THE PERFORMANCE OF HIS AUTHORIZED OR REQUIRED MILITARY DUTIES IN THE CIRCUMSTANCES THEN OCCURRING, THE QUESTION WHETHER HIS PROPERTY HAS BEEN DESTROYED OR IS BEYOND SAVING IS NOT ALWAYS OR FREQUENTLY SUSCEPTIBLE OF DEFINITE ASCERTAINMENT, AND IN SUCH CIRCUMSTANCES UNDER THE ACT THE MATTER IS FOR DETERMINATION BY THE SECRETARY OF WAR. THAT IS, WHERE CLEARLY THE OWNER'S ACTIVITIES DO NOT BRING HIS CASE WITHIN THE CLAUSE OF THE ACT HERE IN QUESTION, THERE IS NO AUTHORITY UNDER IT TO REIMBURSE HIM FOR HIS LOSS; BUT WHERE, IMMEDIATELY UPON DISCOVERY OF THE DESTROYING AGENCY, THE OWNER'S ACTIVITIES IN PART ARE WITH RESPECT TO HIS OWN PROPERTY AND IN PART WITH RESPECT TO SAVING LIVES, SAVING GOVERNMENT PROPERTY IN DANGER AT THE SAME TIME AND IN SIMILAR CIRCUMSTANCES, OR IN THE PERFORMANCE OF HIS AUTHORIZED OR REQUIRED MILITARY DUTIES IN CONNECTION WITH THE HAPPENING AND CONCLUSIVE EVIDENCE IS NOT AVAILABLE TO ESTABLISH WHETHER HIS DISCONTINUANCE OF EFFORTS TO SAVE HIS OWN PROPERTY IS BEFORE OR AFTER THERE IS NO HOPE OF SAVING HIS OWN PROPERTY, THE DETERMINATION OF THE SECRETARY OF WAR AS TO WHETHER THE CASE COMES WITHIN THE ACT IS ONE HE IS REQUIRED TO MAKE UNDER SECTION 4 OF THE ACT AND HIS DETERMINATION IN SUCH A CASE IS CONTROLLING.

THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED. THE RIGHT OF THE OFFICER BEING QUESTIONABLE, AND THE ASSISTANT SECRETARY OF WAR HAVING APPROVED THE FINDINGS OF THE BOARD OF OFFICERS CONVENED IN THE OFFICE OF THE CHIEF OF FINANCE THAT FIRST LIEUTENANT DONAHUE'S PROPERTY WAS DESTROYED IN CONSEQUENCE OF ITS OWNER HAVING GIVEN HIS ATTENTION TO THE SAVING OF PROPERTY BELONGING TO THE UNITED STATES, WHICH WAS IN DANGER AT THE SAME TIME AND UNDER SIMILAR CIRCUMSTANCES, AND WHEN AT THE TIME OF SUCH LOSS THE CLAIMANT WAS ON AUTHORIZED MILITARY DUTIES IN CONNECTION THEREWITH, THE VOUCHER MAY BE PAID, IF OTHERWISE CORRECT.