B-149947, DEC. 4, 1962

B-149947, DEC. 4, 1962

TO THE SECRETARY OF THE ARMY:

BY LETTER DATED SEPTEMBER 19, 1962, THE ASSISTANT SECRETARY OF THE ARMY (FINANCIAL MANAGEMENT), TRANSMITTED FOR OUR CONSIDERATION A LETTER WITH EIGHT ENCLOSURES FROM HEADQUARTERS, UNITED STATES ARMY, EUROPE, DATED APRIL 18, 1962, CONCERNING CLAIMS ARISING OUT OF EMERGENCY ASSISTANCE VOLUNTARILY RENDERED TO MEMBERS OF THE UNITED STATES FORCES WITHIN THE FEDERAL REPUBLIC OF GERMANY.

THE LETTER OF APRIL 18, 1962, STATES THAT THE CLAIMS IN QUESTION ARISE WHEN A LOCAL NATIONAL RENDERS AID OR ASSISTANCE TO A MEMBER OF THE UNITED STATES FORCES IN AN EMERGENCY, WITH OR WITHOUT A REQUEST FOR THE ASSISTANCE, AND EITHER SUFFERS DAMAGES OR SEEKS COMPENSATION FOR HIS SERVICES IN RENDERING THE AID. ALSO, IT IS STATED THAT SUCH CLAIMANTS ARE NOT PURELY VOLUNTEERS, BECAUSE SECTION 330C OF THE GERMAN CRIMINAL CODE IMPOSES A LEGAL DUTY ON INDIVIDUALS TO RENDER AID IN CASES OF ACCIDENT, COMMON DANGER, OR DISTRESS UNDER PENALTY OF IMPRISONMENT OR A FINE. THE ENCLOSURES TO THE LETTER INDICATE THAT SECTIONS 679, 660 AND 683 OF BOOK TWO, ELEVENTH TITLE OF THE GERMAN CIVIL CODE PROVIDE THAT A PERSON RENDERING SUCH AID IS ENTITLED TO REIMBURSEMENT FOR HIS OUTLAY. IT IS FURTHER STATED IN THE LETTER THAT THE OBLIGATION TO REIMBURSE THE CLAIMANT IN SUCH CASES IS A PERSONAL OBLIGATION OF THE INDIVIDUAL RECEIVING THE SERVICES, AND THAT THERE IS SOME DOUBT THAT THE GERMAN CIVIL CODE WOULD SUPPORT A CLAIM AGAINST AN EMPLOYER FOR AID RENDERED TO HIS EMPLOYEE.

HEADQUARTERS, UNITED STATES ARMY, EUROPE, ADVISES THAT THE UNITED STATES FORCES HAVE RECOGNIZED THE PERSONAL OBLIGATION OF THE INDIVIDUAL RECEIVING SUCH ASSISTANCE TO REIMBURSE THE CLAIMANT BUT HAVE CONSISTENTLY DENIED ANY OBLIGATION OF THE FORCES TO REIMBURSE THE CLAIMANT FOR SERVICES RENDERED TO A MEMBER OF SUCH FORCES, EXCEPT FOR A FEW CLAIMS FOR MEDICAL CARE GIVEN A MEMBER, WHICH HAVE BEEN PAID UNDER EXISTING REGULATIONS. SOME CLAIMS HAVE BEEN SETTLED BY THE INDIVIDUAL INVOLVED, BUT OTHERS HAVE NOT, BECAUSE OF THE ROTATION OR SEPARATION OF THE INDIVIDUAL OR FOR OTHER REASONS. THE GERMAN FEDERAL MINISTRY OF FINANCE HAS PERSISTENTLY CONTENDED THAT THE UNITED STATES FORCES SHOULD REIMBURSE THE CLAIMANT WHERE COLLECTION FROM THE INDIVIDUAL IS NOT ACCOMPLISHED.

THE LETTER FROM ARMY HEADQUARTERS, EUROPE, STATES THAT THE REFUSAL TO RECOGNIZE GOVERNMENTAL LIABILITY IN THESE CASES WAS BASED PARTLY UPON THE ABSENCE OF ANY ADMINISTRATIVE METHOD FOR THE PAYMENT OF THE TYPEOF CLAIM INVOLVED. THE GERMAN AUTHORITIES HAVE REFUSED TO SETTLE THE CLAIMS UNDER THE FINANCE CONVENTION AS "TORT" CLAIMS BECAUSE THEY ARE QUASI-CONTRACTUAL IN NATURE AND CONTRACTUAL CLAIMS ARE SPECIFICALLY EXCLUDED BY PARAGRAPH 5 (C) OF ARTICLE 8 OF THAT AGREEMENT. ARMY HEADQUARTERS, EUROPE, DOES NOT BELIEVE SUCH CLAIMS ARE PROPER FOR SETTLEMENT UNDER 10 U.S.C. 2734 AND AR 25-90 WHICH IMPLEMENTS THAT LAW.

THE USAREUR JUDGE ADVOCATE EXPRESSED AN OPINION THAT CASES CLEARLY FALLING WITHIN THE EXCEPTION TO 31 U.S.C. 665/B), WHICH PERMITS ACCEPTANCE OF VOLUNTARY SERVICE FOR THE UNITED STATES IN CASES OF EMERGENCY INVOLVING THE SAFETY OF HUMAN LIFE OR THE PROTECTION OF PROPERTY, WOULD NOT BE PRECLUDED FROM PAYMENT BY THAT SECTION, AND FURTHER INDICATED THAT SUCH CLAIMS MIGHT BE PROPER FOR SUBMISSION TO THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE FOR CONSIDERATION. APPARENTLY PURSUANT TO THIS OPINION, CLAIMANTS HAVE BEGUN TO RESUBMIT PREVIOUSLY DENIED CLAIMS, WHICH ARE BEING HELD IN ABEYANCE PENDING RECEIPT OF ADVICE AS TO THE PROPER PROCESSING THEREOF.

THE FOLLOWING FIVE QUESTIONS ARE PRESENTED FOR OUR CONSIDERATION:

A. MAY A CLAIM ARISING OUT OF EMERGENCY ASSISTANCE APPROPRIATELY BE FORWARDED TO THE CLAIMS DIVISION, UNITED STATES GENERAL ACCOUNTING OFFICE FOR SETTLEMENT WHEN A MEMBER OF THE UNITED STATES FORCES, INCIDENT TO PERFORMANCE OF OFFICIAL DUTIES, ACCEPTS VOLUNTARY ASSISTANCE IN AN EMERGENCY WHERE HUMAN LIFE OR THE SAFETY OF UNITED STATES GOVERNMENT PROPERTY IS AT STAKE?

B. MAY A CLAIM ARISING OUT OF EMERGENCY ASSISTANCE BE FORWARDED TO THAT OFFICE WHERE THE EMERGENCY ARISES INCIDENT TO AN ACTIVITY OF THE UNITED STATES FORCES, BUT NO AGENT EXPRESSLY REQUESTS OR ACCEPTS ASSISTANCE (E.G., WHERE ASSISTANCE IS RENDERED TO A SOLDIER ON DUTY WHO IS INJURED, PERHAPS UNCONSCIOUS; OR WHERE UNATTENDED UNITED STATES GOVERNMENT PROPERTY IN PERIL IS SAFEGUARDED/?

C. MAY A CLAIM ARISING OUT OF EMERGENCY ASSISTANCE BE FORWARDED TO THAT OFFICE WHERE A MEMBER OF THE UNITED STATES FORCES (MILITARY, CIVILIAN EMPLOYEE, OR DEPENDENT) RECEIVES ASSISTANCE IN AN EMERGENCY NOT CONNECTED WITH THE PERFORMANCE OF OFFICIAL DUTIES AND NOT CONNECTED WITH EFFORTS TO SAFEGUARD UNITED STATES GOVERNMENT PROPERTY?

D. IN THE EVENT ANY OF THE ABOVE CLAIMS MAY BE SUBMITTED TO THE GENERAL ACCOUNTING OFFICE, THROUGH WHAT CHANNELS SHOULD SUCH CLAIM BE FORWARDED?

E. MAY THE PROVISIONS OF PARAGRAPH 11-51 OF AR 37-103 BE USED AS A GUIDE FOR SUBMITTING SUCH CLAIMS TO THE GENERAL ACCOUNTING OFFICE?

THE JURISDICTION OF OUR OFFICE UNDER THE PROVISIONS OF 31 U.S.C. 71 IS SUCH THAT ANY DEPARTMENT OR AGENCY OF THE FEDERAL GOVERNMENT MAY SEND TO US FOR CONSIDERATION AND SETTLEMENT ANY CLAIM OF OR AGAINST THE GOVERNMENT THE PROPER DISPOSITION OF WHICH APPEARS TO SUCH DEPARTMENT OR AGENCY TO BE DOUBTFUL. HENCE, ANY AND ALL OF THE CLAIMS REFERRED TO MAY BE SENT HERE FOR CONSIDERATION AND SETTLEMENT, AND THE PROVISIONS OF PARAGRAPH 11-51 OF AR 37-103 WOULD APPEAR TO BE A SATISFACTORY GUIDE FOR SUCH REFERRAL. HOWEVER, THE DISPOSITION OF CLAIMS REFERRED TO OUR OFFICE DEPENDS UPON THE FACTS AND CIRCUMSTANCES SURROUNDING EACH CLAIM. THE LETTER FROM HEADQUARTERS, USAREUR DOES NOT CONTAIN SUFFICIENT INFORMATION REGARDING THE FACTS AND CIRCUMSTANCES SURROUNDING THE SITUATIONS DESCRIBED TO ENABLE THIS OFFICE TO STATE THE DISPOSITION THAT WOULD BE MADE OF THE CLAIMS MENTIONED IN THE FIRST THREE QUESTIONS. SINCE THE QUESTIONS ARE HYPOTHETICAL IN NATURE, WE WOULD NOT BE WARRANTED IN FURNISHING AUTHORITATIVE OPINIONS THEREON.

HOWEVER, WE MAY STATE GENERALLY, IN CONNECTION WITH CLAIMS OF THIS NATURE, THAT SINCE THEY ARE NOT COVERED BY ANY TREATY OR AGREEMENT BETWEEN THE UNITED STATES AND THE WEST GERMAN GOVERNMENT, THE PROPER DISPOSITION THEREOF WOULD APPEAR TO DEPEND UPON GERMAN LAW, WHERE NOT IN CONFLICT WITH A LAW OF THE UNITED STATES PERTAINING TO PAYMENTS WHICH MAY BE MADE BY THE UNITED STATES GOVERNMENT. WE ARE NOT AWARE OF ANY PROVISION OF LAW WHICH WOULD REQUIRE OR PERMIT THE UNITED STATES GOVERNMENT TO PAY A PURELY PERSONAL OBLIGATION OF ONE OF ITS EMPLOYEES, WHETHER CIVILIAN OR MILITARY. HENCE, IN ANY CASE WHERE, UNDER THE GERMAN LAWS INVOLVED, THE OBLIGATION TO REIMBURSE THE CLAIMANT IS A PURELY PERSONAL OBLIGATION OF THE INDIVIDUAL WHO RECEIVED THE EMERGENCY ASSISTANCE, NO PAYMENT COULD BE MADE BY THE UNITED STATES GOVERNMENT, NOR WOULD THE GERMAN LAW APPEAR TO REQUIRE SUCH PAYMENT IN THAT CIRCUMSTANCE. CONVERSELY, IN ANY CASE WHERE THE UNITED STATES GOVERNMENT WOULD HAVE BEEN LIABLE IF IT WERE A PRIVATE BUSINESS ENTERPRISE OPERATING IN GERMANY--- EITHER AS THE EMPLOYER OF THE INDIVIDUAL RECEIVING THE EMERGENCY SERVICES OR BECAUSE THE GOVERNMENT ITSELF WAS THE DIRECT RECIPIENT OF SUCH SERVICES--- AND THE CIRCUMSTANCES WERE SUCH AS TO BRING THE CASE CLEARLY WITHIN THE EXCEPTION TO 31 U.S.C. 665 (B), PAYMENT OF THE CLAIM WOULD APPEAR TO BE IN ORDER.