B-153031, JAN. 28, 1964

B-153031, JAN. 28, 1964

TO MR. W. T. LEONHART, DISBURSING OFFICER, U.S. ARMY ENGINEER DISTRICT, HUNTINGTON:

WE REFER TO YOUR LETTER OF DECEMBER 5, 1963, YOUR REFERENCE ORHDC-F, BY WHICH YOU REQUEST OUR DECISION WHETHER YOU MAY PAY TO MRS. ELIZABETH C. FOX, AN EMPLOYEE OF THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, THE SUM OF $42 FOR DAMAGE DONE TO HER HOUSEHOLD EFFECTS INCIDENT TO HER CHANGE OF STATION IN JANUARY 1963 UNDER THE ENCLOSED VOUCHER.

MRS. FOX WAS AUTHORIZED TO SHIP HER HOUSEHOLD EFFECTS IN CONNECTION WITH HER TRANSFER FROM RIVERDALE, NORTH DAKOTA TO HUNTINGTON, WEST VIRGINIA BY TRAVEL ORDER NO. 129 OF THE U.S. ARMY ENGINEER DISTRICT, OMAHA, NEBRASKA. IT APPEARS THAT MRS. FOX WAS AUTHORIZED REIMBURSEMENT FOR THE COST OF TRANSPORTING HER HOUSEHOLD EFFECTS UNDER THE COMMUTED RATE SYSTEM PRESCRIBED BY PARAGRAPH 2.1 OF BUREAU OF THE BUDGET CIRCULAR NO. A-56. DURING TRANSPORTATION OF HER HOUSEHOLD EFFECTS UNDER THAT ORDER A MIRROR VALUED AT $60 WAS IRREPARABLY DAMAGED. MRS. FOX RECEIVED ONLY $18 FROM THE CARRIER IN PAYMENT FOR THAT DAMAGE SINCE THE CARRIER'S LIABILITY UNDER THE TRANSPORTATION CONTRACT WAS LIMITED ON THE BASIS OF A VALUATION OF 30 CENTS PER POUND.

MRS. FOX SUBMITTED HER CLAIM FOR THE BALANCE OF THE VALUE OF THE MIRROR-- - $42--- UNDER THE PROVISIONS OF ARMY REGULATION 25-100 WHICH CONTAINS THE REGULATIONS OF THE SECRETARY OF THE ARMY IMPLEMENTING 10 U.S.C. 2732. THAT SECTION (10 U.S.C. 2732) READS, IN PERTINENT PART, AS FOLLOWS:

"/A) UNDER SUCH REGULATIONS AS THE SECRETARY OF A MILITARY DEPARTMENT MAY PRESCRIBE, HE OR ANY OFFICER DESIGNATED BY HIM MAY SETTLE AND PAY A CLAIM AGAINST THE UNITED STATES FOR NOT MORE THAN $6,500 BY A CIVILIAN EMPLOYEE OF THAT DEPARTMENT, OR A MEMBER OF THE ARMY, NAVY, AIR FORCE, OR MARINE CORPS, AS THE CASE MAY BE, FOR DAMAGE TO, OR LOSS OF, PERSONAL PROPERTY INCIDENT TO HIS SERVICE. IF THE CLAIM IS SUBSTANTIATED AND THE POSSESSION OF THAT PROPERTY IS DETERMINED TO BE REASONABLE, USEFUL, OR PROPER UNDER THE CIRCUMSTANCES, THE CLAIM MAY BE PAID OR THE PROPERTY REPLACED IN KIND.

"/D) A CLAIM MAY BE ALLOWED UNDER SUBSECTION (A) OR (B) FOR DAMAGE TO, OR LOSS OF, PROPERTY ONLY IF---

"/1) IT IS PRESENTED IN WRITING WITHIN TWO YEARS AFTER IT ACCRUES, EXCEPT THAT IF THE CLAIM ACCRUES IN TIME OF WAR OR IN TIME OF ARMED CONFLICT IN WHICH ANY ARMED FORCE IS ENGAGED OR IF SUCH WAR OR ARMED CONFLICT INTERVENES WITHIN TWO YEARS AFTER IT ACCRUES, AND IF GOOD CAUSE IS SHOWN, THE CLAIM MAY BE PRESENTED NOT LATER THAN TWO YEARS AFTER THAT CAUSE CEASES TO EXIST, OR TWO YEARS AFTER THE WAR OR ARMED CONFLICT IS TERMINATED, WHICHEVER IS EARLIER;

"/2) IT DID NOT OCCUR AT QUARTERS OCCUPIED BY THE CLAIMANT WITHIN THE UNITED STATES THAT WERE NOT ASSIGNED TO HIM OR OTHERWISE PROVIDED IN KIND BY THE UNITED STATES; AND

"/3) IT WAS NOT CAUSED WHOLLY OR PARTLY BY THE NEGLIGENT OR WRONGFUL ACT OF THE CLAIMANT, HIS AGENT, OR HIS EMPLOYEE.'

MRS. FOX'S CLAIM HAS BEEN ADMINISTRATIVELY APPROVED FOR PAYMENT UNDER THAT PROVISION OF LAW.

SINCE THE PAYMENT OF CLAIMS UNDER THE AUTHORITY OF 10 U.S.C. 2732 IS THE PREROGATIVE OF THE SECRETARIES OF THE MILITARY DEPARTMENTS WE WOULD NOT NORMALLY QUESTION THE ALLOWANCE OF A CLAIM UNDER THAT SECTION BY AN OFFICER PROPERLY DELEGATED AUTHORITY TO APPROVE CLAIMS THEREUNDER. THIS CASE, HOWEVER, THE PAYMENT APPEARS TO BE CONTRARY TO THE SPECIFIC PROVISION OF THE LAW UNDER THE FACTS AS THEY HAVE BEEN PRESENTED TO US. SUBSECTION (D) (3) QUOTED ABOVE PROVIDES THAT CLAIMS FOR LOSS AND DAMAGE "CAUSED WHOLLY OR PARTLY BY THE NEGLIGENT OR WRONGFUL ACT OF THE CLAIMANT, HIS AGENT, OR HIS EMPLOYEE" WILL NOT BE ALLOWED. UNDER THE COMMUTED RATE SYSTEM THE ACTUAL TRANSPORTATION OF EFFECTS IS THE RESPONSIBILITY OF THE EMPLOYEE. HE IS ALLOWED PAYMENT ON THE BASIS OF THE DISTANCE INVOLVED NOT ON THE BASIS OF ACTUAL COSTS. THEREFORE, A CARRIER SUCH AS THE ONE INVOLVED IN THE TRANSPORTATION OF MRS. FOX'S EFFECTS IS THE AGENT OF THE EMPLOYEE NOT AN AGENT OF THE GOVERNMENT. SEE GENERALLY 38 COMP. GEN. 314.

SINCE THE RECORD INDICATES THAT THE EFFECTS WERE IN THE CUSTODY OF THE EMPLOYEE'S AGENT AT THE TIME DAMAGE OCCURRED, AND AS IT APPEARS THAT THE MIRROR WAS NOT CRATED AS ORIGINALLY INTENDED, IT MAY BE PRESUMED THE DAMAGE OCCURRED THROUGH THE NEGLIGENT OR WRONGFUL ACT OF THE CARRIER. THEREFORE, WE MUST HOLD THAT MRS. FOX IS NOT ENTITLED TO RECOVER THE VALUE OF THE DAMAGED MIRROR UNDER 10 U.S.C. 2732.

SINCE THE VOUCHER IS NOT PROPER FOR PAYMENT IT IS RETAINED IN OUR FILES. THE SUPPORTING PAPERS ARE RETURNED HEREWITH.