B-129341, OCT. 22, 1956

B-129341: Oct 22, 1956

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TO CAPTAIN FRANK BERRISH: AS TO WHETHER PAYMENT IS AUTHORIZED ON THE VOUCHER (PAY ROLL) ATTACHED THERETO. THE VOUCHER IS STATED IN THE SUM OF $3. THE PROCEDURE APPEARS TO HAVE BEEN AUTHORIZED WHEREBY THE WAGES DUE NATIVE OR ALIEN PERSONNEL EMPLOYED BY THE UNITED STATES FORCES IN AUSTRIA WERE INITIALLY PAID BY THE GOVERNMENT OF AUSTRIA. WHICH ACCRUED OR WILL ACCRUE WITHIN THE THEN AND NOW EXISTING GEOGRAPHICAL BOUNDARIES OF AUSTRIA. "2. IT IS AGREED THAT THE FOLLOWING EXCEPTIONS ARE MADE TO THE PROVISIONS OF ARTICLE III AND IV ABOVE. UNDER THE TERMS OF ARTICLES III AND IV OF THE AGREEMENT QUOTED ABOVE THE GOVERNMENT OF AUSTRIA IS REQUIRED TO SETTLE AND PAY. IT SEEMS CLEAR THAT THE PARTIES TO THE AGREEMENT SAW FIT TO PROVIDE FOR AN EXCEPTION TO THE GENERAL PROVISIONS THEREOF RELATING TO THE PERIOD WITHIN WHICH THE GOVERNMENT OF AUSTRIA IS REQUIRED TO SETTLE AND PAY CERTAIN CLAIMS AGAINST THE UNITED STATES.

B-129341, OCT. 22, 1956

TO CAPTAIN FRANK BERRISH: AS TO WHETHER PAYMENT IS AUTHORIZED ON THE VOUCHER (PAY ROLL) ATTACHED THERETO, TRANSMITTED HERE BY FIRST INDORSEMENT FINEM 248.2/31, DATED SEPTEMBER 25, 1956, FROM THE ASSISTANT CHIEF OF FINANCE, WITH ATTACHED COMMENT FROM THE OFFICE OF THE JUDGE ADVOCATE GENERAL.

THE VOUCHER IS STATED IN THE SUM OF $3,083.67 (ANS 80,175.50), IN FAVOR OF THE AUSTRIAN NATIONAL BANK, AUSTRIAN STATE MAIN ACCOUNT, AND REPRESENTS A CLAIM FOR REIMBURSEMENT OF THE AMOUNT OF WAGES AND COMPENSATION PAID NATIVE OR ALIEN EMPLOYEES OF THE UNITED STATES OCCUPATION FORCES IN AUSTRIA FOR THE PERIOD JUST PRIOR TO THE DATE OF WITHDRAWAL OF THE SAID FORCES FROM AUSTRIA, NAMELY, OCTOBER 25, 1955. IN THIS CONNECTION, THE PROCEDURE APPEARS TO HAVE BEEN AUTHORIZED WHEREBY THE WAGES DUE NATIVE OR ALIEN PERSONNEL EMPLOYED BY THE UNITED STATES FORCES IN AUSTRIA WERE INITIALLY PAID BY THE GOVERNMENT OF AUSTRIA, ON BEHALF OF THE UNITED STATES ARMY, AND REIMBURSEMENT THEREAFTER CLAIMED FROM THE UNITED STATES FORCES FOR THE AMOUNT THEREOF.

YOU STATE THAT YOUR DOUBT IN THE MATTER ARISES BY REASON OF CERTAIN PROVISIONS OF THE AGREEMENT DATED AUGUST 29, 1955 (SEPTEMBER 26, 1955), BETWEEN THE UNITED STATES AND THE REPUBLIC OF AUSTRIA CONCERNING THE DISPOSITION OF CERTAIN UNITED STATES PROPERTY IN AUSTRIA. SEE TIAS 3499. YOU CONSTRUE SUCH PROVISIONS AS INVALIDATING ALL CLAIMS OF THE AUSTRIAN GOVERNMENT AGAINST THE UNITED STATES ON THE DATE ITS FORCES DEPARTED FROM THAT COUNTRY.

THE PERTINENT PROVISIONS OF THE REFERRED-TO AGREEMENT READ, AS FOLLOWS:

"ARTICLE III

"1. THE REPUBLIC OF AUSTRIA, FOR AND ON BEHALF OF ITSELF, ITS DEPARTMENTS AND AGENCIES, AND FOR AND ON BEHALF OF ALL LAND, MUNICIPAL AND OTHER LOCAL GOVERNMENTS, THEIR DEPARTMENTS AND AGENCIES, AND FOR AND ON BEHALF OF ALL AUSTRIAN NATIONALS, HEREBY WAIVES ALL CLAIMS AGAINST THE UNITED STATES OF AMERICA, ITS AGENCIES, OFFICERS, AGENTS AND THOSE ACTING ON THEIR BEHALF OR UNDER THEIR AUTHORITY, AND RELEASES AND DISCHARGES THEM AND EACH OF THEM FROM ALL SUCH CLAIMS.

"2. THE REPUBLIC OF AUSTRIA ALSO HEREBY ASSUMES AND AGREES TO SETTLE ALL CLAIMS BY ANY AND ALL PERSONS AND JURIDICAL ENTITIES REGARDLESS OF NATIONALITY, CITIZENSHIP, OR RESIDENCE, AGAINST THE UNITED STATES OF AMERICA, ITS AGENCIES, OFFICERS, AGENTS AND THOSE ACTING ON THEIR BEHALF OR UNDER THEIR AUTHORITY, AND TO INDEMNIFY AND SAVE HARMLESS THEM AND EACH OF THEM FROM ALL SUCH CLAIMS.

"3. THE REPUBLIC OF AUSTRIA AGREES TO PAY AND SETTLE, ON BEHALF OF THE UNITED STATES OF AMERICA, ANY CLAIMS ARISING OUT OF CONTRACTS (EXCEPT AS OTHERWISE PROVIDED FOR IN ARTICLE V OF THIS AGREEMENT) BETWEEN INDIVIDUALS, JURIDICAL PERSONS OR ENTITIES REGARDLESS OF NATIONALITY, CITIZENSHIP OR RESIDENCE, AND THE UNITED STATES OF AMERICA, ITS DEPARTMENTS OR AGENCIES ENTERED INTO, WITHIN THE THEN AND NOW EXISTING GEOGRAPHICAL BOUNDARIES OF AUSTRIA, ON AND AFTER APRIL 9, 1945 UP TO AND INCLUDING THE DATE OF WITHDRAWAL FROM AUSTRIA OF THE LAST ELEMENT OF THE FORCES OF THE UNITED STATES OF AMERICA PURSUANT TO THE PROVISIONS OF ARTICLE 20 OF THE SAID STATE TREATY.'

"ARTICLE IV

"1. THE TERM "CLAIMS" AS USED IN PARAGRAPHS 1 AND 2 OF ARTICLE III COVERS AND INCLUDES, EXCEPT AS SPECIFIED BY THE PROVISIONS OF PARAGRAPHS 3 AND 4 OF ARTICLE III, AND ARTICLE V, ALL CLAIMS OF EVERY KIND, NATURE, AND DESCRIPTION, ARISING OUT OF ACTS OR OMISSIONS OCCURRING, OR OUT OF CONTRACTS ENTERED INTO WITH THE REPUBLIC OF AUSTRIA, ITS DEPARTMENTS AND AGENCIES AND ALL LAND, MUNICIPAL AND OTHER LOCAL GOVERNMENTS, THEIR DEPARTMENTS AND AGENCIES, ON OR AFTER APRIL 9, 1945 UP TO AND INCLUDING THE DATE OF WITHDRAWAL FROM AUSTRIA OF THE LAST ELEMENT OF THE FORCES OF THE UNITED STATES OF AMERICA PURSUANT TO THE PROVISIONS OF ARTICLE 20 OF THE SAID STATE TREATY, WHICH ACCRUED OR WILL ACCRUE WITHIN THE THEN AND NOW EXISTING GEOGRAPHICAL BOUNDARIES OF AUSTRIA.

"2. THE REPUBLIC OF AUSTRIA AGREES TO CONSIDER, DETERMINE AND SETTLE PROMPTLY THE CLAIMS HEREIN ASSUMED.

"ARTICLE V

"1. IN ACCORDANCE WITH THE POLICY OF THE UNITED STATES OF AMERICA TO MAKE PROVISIONS FOR CLAIMANTS THROUGH THE PERIOD OF THE PRESENCE OF THE UNITED STATES FORCES IN AUSTRIA, IT IS AGREED THAT THE FOLLOWING EXCEPTIONS ARE MADE TO THE PROVISIONS OF ARTICLE III AND IV ABOVE, SUBJECT TO THE CONDITIONS STATED HEREUNDER.

"2. THE UNITED STATES OF AMERICA SHALL CONTINUE TO PAY AND DISCHARGE THE FOLLOWING:

"A. WAGES AND SALARIES DUE EMPLOYEES OF THE UNITED STATES OF AMERICA, ITS DEPARTMENTS, AGENCIES AND OFFICERS INCLUDING TERMINATION PAY DUE ACCORDING TO USFA AND USCGA DIRECTIVES.'

UNDER THE TERMS OF ARTICLES III AND IV OF THE AGREEMENT QUOTED ABOVE THE GOVERNMENT OF AUSTRIA IS REQUIRED TO SETTLE AND PAY, ON BEHALF OF THE UNITED STATES, ALL CLAIMS, OTHER THAN THOSE EXPRESSLY EXCEPTED THEREUNDER, INCIDENT TO THE OPERATIONS OF THE UNITED STATES FORCES IN AUSTRIA UP TO AND INCLUDING THE DATE OF THEIR WITHDRAWAL FROM AUSTRIA. THE PROVISIONS OF PARAGRAPHS 1 AND 2 OF ARTICLE V EXCEPT FROM THIS REQUIREMENT AND FIX UPON THE UNITED STATES THE OBLIGATION TO PAY AND DISCHARGE CLAIMS COVERING, SO FAR AS HERE MATERIAL,"WAGES AND SALARIES DUE EMPLOYEES OF THE UNITED STATES OF AMERICA, ITS DEPARTMENTS, AGENCIES AND OFFICERS INCLUDING TERMINATION PAY DUE ACCORDING TO USFA AND USCOA DIRECTIVES," THROUGH THE PERIOD OF THE PRESENCE OF THE UNITED STATES FORCES IN AUSTRIA.

THUS, IT SEEMS CLEAR THAT THE PARTIES TO THE AGREEMENT SAW FIT TO PROVIDE FOR AN EXCEPTION TO THE GENERAL PROVISIONS THEREOF RELATING TO THE PERIOD WITHIN WHICH THE GOVERNMENT OF AUSTRIA IS REQUIRED TO SETTLE AND PAY CERTAIN CLAIMS AGAINST THE UNITED STATES. CONSEQUENTLY, IF ANY EFFECT WHATEVER IS TO BE ACCORDED THE SAID PROVISIONS OF ARTICLE V, THEY MUST BE TAKEN AS INDICATIVE OF AN INTENT ON THE PART OF THE UNITED STATES TO PAY CLAIMS FOR WAGES AND SALARIES OF "EMPLOYEES OF THE UNITED STATES" OVER A LONGER PERIOD THAN THAT WITHIN WHICH IT SOUGHT TO INDEMNIFY ITSELF AGAINST CLAIMS IN GENERAL.

SINCE IT APPEARS FROM AN EXAMINATION OF THE PAY ROLLS SUBMITTED IN SUPPORT OF THE REIMBURSEMENT VOUCHER, AND FROM INFORMATION INFORMALLY OBTAINED FROM THE OFFICES OF THE JUDGE ADVOCATE GENERAL AND THE LEGAL ADVISER FOR THE DEPARTMENT OF STATE THAT THE EMPLOYEES LISTED THEREON WERE ,EMPLOYEES OF THE UNITED STATES" WITHIN THE MEANING OF THAT TERM AS USED IN PARAGRAPH 2A OF ARTICLE V, AND SINCE THE UNITED STATES COMMITTED ITSELF UNDER THE AGREEMENT TO PAY THE SALARIES INCLUDING TERMINATION PAY OF SUCH EMPLOYEES, THE INTENT OF THIS COMMITMENT MAY BE GIVEN PRACTICAL EFFECT ONLY BY CONSIDERING IT A CONTINUING OBLIGATION AND ONE NOT AFFECTED OR TERMINATED BY THE WITHDRAWAL FROM AUSTRIA OF THE UNITED STATES FORCES. THIS CONCLUSION, IN SUBSTANCE, IS EXPRESSED IN THE COMMENT RECEIVED FROM THE OFFICE OF THE JUDGE ADVOCATE GENERAL.

ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.