B-101061, APR 9, 1951

B-101061: Apr 9, 1951

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PRECIS-UNAVAILABLE GENERAL TOBBERS - HEADQUARTERS UNITED STATES AIR FORCE: REFERENCE IS MADE TO LETTER OF DECEMBER 4. IT IS ALLEGED THAT SUCH PROPERTY WAS DESTROYED IN THE CRASH AND BURNING OF A GOVERNMENT-OWNED AIRPLANE ON FEBRUARY 28. WAS DISALLOWED ON AUGUST 23. IT WAS HELD IN THAT DECISION. IS A PERSONAL ONE AND DOES NOT INURE TO THE BENEFIT OF THE HEIRS OF THE PERSON CONCERNED. UNLESS IT IS ESTABLISHED BY COMPETENT EVIDENCE THAT HE WAS ALIVE SUBSEQUENT TO THE LOSS OF HIS PROPERTY AND THUS ACQUIRED A VESTED RIGHT TO REIMBURSEMENT FOR SUCH LOSS. PROVIDES AS FOLLOWS: "THAT WHEN THERE IS FILED IN THE GENERAL ACCOUNTING OFFICE A CLAIM OR DEMAND AGAINST THE UNITED STATES THAT MAY NOT LAWFULLY BE ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE.

B-101061, APR 9, 1951

PRECIS-UNAVAILABLE

GENERAL TOBBERS - HEADQUARTERS UNITED STATES AIR FORCE:

REFERENCE IS MADE TO LETTER OF DECEMBER 4, 1950, FROM THE CHIEF, DISBURSING ADVISORY DIVISION, OFFICE, DIRECTOR OF FINANCE, REFERENCE AFAFN -4 167, FORWARDING FOR APPROPRIATE ACTION UNDER THE PROVISIONS OF THE ACT OF APRIL 10, 1928, 45 STAT. 413 THE CLAIM OF MRS. STEFANIE T. MCCLURE FOR $636.05, STATED TO REPRESENT THE VALUE OF PERSONAL PROPERTY BELONGING TO HER LATE HUSBAND, FIRST LIEUTENANT WILLIAM W. MCCLURE, JR., USAF. IT IS ALLEGED THAT SUCH PROPERTY WAS DESTROYED IN THE CRASH AND BURNING OF A GOVERNMENT-OWNED AIRPLANE ON FEBRUARY 28, 1949, WHICH RESULTED IN HIS DEATH.

IT APPEARS THAT SUCH CLAIM AS ORIGINALLY FILED UNDER THE PROVISIONS OF THE MILITARY PERSONNEL CLAIMS ACT OF 1945, 59 STAT. 225, AND AIR FORCE REGULATION 112-7, WAS DISALLOWED ON AUGUST 23, 1950, BY THE APPROPRIATE AIR FORCE AUTHORITY AUTHORIZED TO SETTLE CLAIMS OF THIS TYPE, THE BASIS FOR SUCH ACTION BEING A DECISION OF THIS OFFICE DATED FEBRUARY 20, 1947, 26 COMP. GEN. 613. IT WAS HELD IN THAT DECISION, THAT THE RIGHT TO RECOVER FOR THE LOSS OF PERSONAL PROPERTY UNDER THAT ACT, IS A PERSONAL ONE AND DOES NOT INURE TO THE BENEFIT OF THE HEIRS OF THE PERSON CONCERNED, UNLESS IT IS ESTABLISHED BY COMPETENT EVIDENCE THAT HE WAS ALIVE SUBSEQUENT TO THE LOSS OF HIS PROPERTY AND THUS ACQUIRED A VESTED RIGHT TO REIMBURSEMENT FOR SUCH LOSS, WHICH RIGHT WOULD PASS TO HIS HEIRS OR LEGAL REPRESENTATIVES UPON HIS DEATH.

THE SAID ACT OF APRIL 10, 1928, PROVIDES AS FOLLOWS:

"THAT WHEN THERE IS FILED IN THE GENERAL ACCOUNTING OFFICE A CLAIM OR DEMAND AGAINST THE UNITED STATES THAT MAY NOT LAWFULLY BE ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM OR DEMAND IN THE JUDGMENT OF THE COMPTROLLER GENERAL OF THE UNITED STATES CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, HE SHALL SUBMIT THE SAME TO THE CONGRESS BY A SPECIAL REPORT CONTAINING THE MATERIAL FACTS AND HIS RECOMMENDATION THEREON."

IT IS RECOGNIZED THAT AS FAR AS THE HEIRS OF A PERSON ARE CONCERNED, INEQUITIES EXIST BETWEEN CASES WHEN IT CANNOT BE ESTABLISHED AFFIRMATIVELY THAT THE DEATH OF THE OWNER OCCURRED AFTER THE LOSS OF HIS PROPERTY, AND CASES WHERE THE EVIDENCE CLEARLY SHOWS THAT HE WAS ALIVE AFTER HIS PROPERTY WAS LOST OR DESTROYED. HOWEVER, THERE APPEARS TO BE NO EQUITIES WHICH DISTINGUISH THE PRESENT CLAIM FROM MANY OTHER SIMILAR CASES WHERE THE DEATH OF THE OWNER AND THE LOSS OR DESTRUCTION OF HIS PROPERTY RESULTED FROM THE SAME ACCIDENT OR ENEMY ACTION, SUCH AS THE SINKING OF A VESSEL. HENCE, IT WOULD SEEM PROPER THAT ANY RELIEF WHICH MIGHT BE PROVIDED BY MEANS OF NEW LEGISLATION, SHOULD BE ACCOMPLISHED BY THE ENACTMENT OF GENERAL LEGISLATION APPLICABLE TO ALL CASES OF THIS TYPE. THE SUBMISSION OF MRS. MCCLURE'S CLAIM TO THE CONGRESS BY SPECIAL REPORT, WOULD ACCORD HER CASE PREFERENTIAL TREATMENT AND FOR THAT REASON SUCH ACTION WILL NOT BE TAKEN.

IN THIS CONNECTION, ATTENTION IS INVITED TO THE FACT THAT GENERAL LEGISLATION WHICH WOULD HAVE PERMITTED THE PAYMENT OF THE ABOVE MENTIONED CLAIM, WAS INTRODUCED IN BOTH THE 80TH AND 81ST CONGRESSES (H.R. 3722, 80TH CONGRESS AND S. 1770, 81ST CONGRESS). IN REPORTS TO THE DIRECTOR, BUREAU OF THE BUDGET, DATED OCTOBER 8, 1947, AND OCTOBER 13, 1949, B- 32038, B-42838, B-62339, THIS OFFICE RECOMMENDED FAVORABLE CONSIDERATION OF A BILL WHICH WOULD PERMIT THE PAYMENT OF CLAIMS SUCH AS IS HERE INVOLVED. HOWEVER, NEITHER OF SUCH BILLS WAS ENACTED INTO LAW.

THE PAPERS RECEIVED WITH THE SAID LETTER OF DECEMBER 4, 1950, ARE RETURNED HEREWITH.