B-15898, MAY 21, 1941, 20 COMP. GEN. 797

B-15898: May 21, 1941

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1941: I HAVE YOUR LETTER OF MAY 7. AS FOLLOWS: YOUR ATTENTION IS INVITED TO A RECENT DECISION OF THE ASSISTANT COMPTROLLER GENERAL (B-15898. WAS NOT AUTHORIZED UNDER THE ACT OF MARCH 4. THE DECISION ADVERSE TO THE PAYMENT APPEARS TO HAVE RESTED UPON TWO GROUNDS. (2) THAT THE REIMBURSEMENT SOUGHT WAS FOR ARTICLES REPLACEABLE IN KIND. IT IS TO THE FIRST OF THESE APPARENT BASES OF DECISION THAT YOUR ATTENTION IS INVITED. THE OFFICE OF UNDER SECRETARY OF WAR WAS CREATED BY THE ACT OF DECEMBER 16. THE DUTIES OF THE INCUMBENT OF THAT OFFICE WERE FIXED BY STATUTE AS FOLLOWS: "A. * * * THE UNDER SECRETARY OF WAR SHALL PERFORM SUCH DUTIES AS MAY BE PRESCRIBED BY THE SECRETARY OF WAR OR REQUIRED BY LAW. * * * IN PRESCRIBING THE DUTIES TO BE PERFORMED BY THE UNDER SECRETARY OF WAR.

B-15898, MAY 21, 1941, 20 COMP. GEN. 797

DELEGATION OF AUTHORITY - APPROVAL OF MILITARY PERSONNEL CLAIMS FOR PROPERTY DAMAGE, ETC. CLAIMS, UNDER THE ACT OF MARCH 4, 1921, BY MILITARY PERSONNEL FOR DAMAGES, ETC., TO THEIR PROPERTY, MUST BE PERSONALLY APPROVED OR DISAPPROVED BY THE SECRETARY OF WAR OR AN ASSISTANT AUTHORIZED BY LAW TO ACT IN HIS STEAD, AND THE SIGNING BY A SUBORDINATE OFFICIAL," BY DIRECTION OF" THE SECRETARY, OR OTHER AUTHORIZED OFFICIAL OF A DOCUMENT EVIDENCING THE FINDINGS AND RECOMMENDATIONS OF AN ADMINISTRATIVE BOARD MAY NOT BE ACCEPTED AS EVIDENCE THAT THE REQUIRED PERSONAL ACTION HAS BEEN TAKEN.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, MAY 21, 1941:

I HAVE YOUR LETTER OF MAY 7, 1941, AS FOLLOWS:

YOUR ATTENTION IS INVITED TO A RECENT DECISION OF THE ASSISTANT COMPTROLLER GENERAL (B-15898, APR. 28, 1941) HOLDING IN SUBSTANCE THAT PAYMENT TO A FORMER SOLDIER, FOR CLOTHING ISSUED TO HIM BY THE GOVERNMENT AND LOST BY FIRE IN THE BARRACKS TO WHICH HE HAD BEEN ASSIGNED, WAS NOT AUTHORIZED UNDER THE ACT OF MARCH 4, 1921 (41 STAT. 1436). THE DECISION ADVERSE TO THE PAYMENT APPEARS TO HAVE RESTED UPON TWO GROUNDS, NAMELY, (1) THAT THE CERTIFICATION OF THE CLAIM " BY DIRECTION OF THE UNDER SECRETARY OF WAR" APPEARED OVER THE SIGNATURE OF MAJOR GENERAL J. H. BURNS; AND (2) THAT THE REIMBURSEMENT SOUGHT WAS FOR ARTICLES REPLACEABLE IN KIND, UNDER PERTINENT LAWS AND REGULATIONS, HAD THE CLAIMANT MADE APPLICATION THEREFOR WHILE IN THE MILITARY SERVICE. IT IS TO THE FIRST OF THESE APPARENT BASES OF DECISION THAT YOUR ATTENTION IS INVITED.

THE OFFICE OF UNDER SECRETARY OF WAR WAS CREATED BY THE ACT OF DECEMBER 16, 1940 ( PUBLIC, NO. 891, 76TH CONG.). THE DUTIES OF THE INCUMBENT OF THAT OFFICE WERE FIXED BY STATUTE AS FOLLOWS:

"A. * * * THE UNDER SECRETARY OF WAR SHALL PERFORM SUCH DUTIES AS MAY BE PRESCRIBED BY THE SECRETARY OF WAR OR REQUIRED BY LAW. * * * IN PRESCRIBING THE DUTIES TO BE PERFORMED BY THE UNDER SECRETARY OF WAR, THE SECRETARY OF WAR MAY PRESCRIBE ANY OF THE DUTIES NOW PRESCRIBED BY LAW TO BE PERFORMED BY THE ASSISTANT SECRETARY OF WAR. * * *" (SEC. 1, ACT DEC. 16, 1940, SUPRA).

"B. HEREAFTER THE SECRETARY OF WAR, IN ADDITION TO OTHER DUTIES IMPOSED UPON HIM BY LAW, SHALL BE CHARGED WITH THE SUPERVISION OF THE PROCUREMENT OF ALL MILITARY SUPPLIES AND OTHER BUSINESS OF THE WAR DEPARTMENT PERTAINING THERETO AND THE ASSURANCE OF ADEQUATE PROVISION FOR THE MOBILIZATION OF MATERIEL AND INDUSTRIAL ORGANIZATIONS ESSENTIAL TO WARTIME NEEDS, AND HE MAY ASSIGN TO THE UNDER SECRETARY OF WAR * * * SUCH DUTIES IN CONNECTION THEREWITH AS HE MAY DEEM PROPER. * * *" (SEC. 5A, NDA, AS AMENDED BY SEC. 2, ACT DEC. 16, 1940, SUPRA). PURSUANT TO THE FOREGOING STATUTORY AUTHORITY, THE SECRETARY OF WAR HAS ASSIGNED OR PRESCRIBED DUTIES TO BE PERFORMED BY THE UNDER SECRETARY OF WAR AS FOLLOWS:

"A. THE DUTIES AND RESPONSIBILITIES PLACED ON THE SECRETARY OF WAR BY SECTION 5A OF THE NATIONAL DEFENSE ACT, AS AMENDED, ARE HEREBY ASSIGNED TO THE UNDER SECRETARY OF WAR.' ( ORDERS, WAR DEPARTMENT, APR. 21, 1941.)

"C. THE UNDER SECRETARY OF WAR WILL CONTINUE TO PERFORM THE DUTIES AND DISCHARGE THE RESPONSIBILITIES PLACED ON THE ASSISTANT SECRETARY OF WAR BY ARMY REGULATIONS NO. 5-5, JULY 16, 1932, ORDERS E, WAR DEPARTMENT, NOVEMBER 28, 1933, AND ALL OTHER EXISTING ORDERS OR STRUCTIONS.' (ID.) REFERENCE TO THE CITED ARMY REGULATION ( AR 5-5) WILL REVEAL THE NUMEROUS CLASSES OF DUTIES ASSOCIATED WITH "OTHER BUSINESS OF THE WAR DEPARTMENT PERTAINING" TO THE SUPERVISION OF THE PROCUREMENT OF ALL MILITARY SUPPLIES, AND THE "ASSURANCE OF ADEQUATE PROVISION FOR THE MOBILIZATION OF MATERIEL AND INDUSTRIAL ORGANIZATIONS ESSENTIAL TO WARTIME NEEDS," AS WELL AS THE NUMEROUS CLASSES OF DUTIES, MILITARY AND NONMILITARY, NOT RELATED TO PROCUREMENT OR INDUSTRIAL MOBILIZATION, WITH WHICH THE UNDER SECRETARY OF WAR IS NOW CHARGED. INCLUDED AMONG THESE LATTER ARE " CLAIMS, FOREIGN OR DOMESTIC, BY OR AGAINST THE WAR DEPARTMENT" (SUBPAR. 2B (1) (B), AR 5 5, JULY 16, 1932).

IN THESE CRITICAL TIMES, AND IN VIEW OF THE RECENT AND CONTINUING TREMENDOUS EXPANSION OF THE ARMY OF THE UNITED STATES, IT IS MANIFEST THAT THE UNDER SECRETARY OF WAR MUST TREAT HIS PRESCRIBED DUTIES PURSUANT TO SECTION 5A, NATIONAL DEFENSE ACT, AS AMENDED, AS OF PRIMARY AND COMMANDING IMPORTANCE. FOR THAT REASON, AND FOR THE FURTHER REASON THAT IT IS PHYSICALLY IMPOSSIBLE FOR THE UNDER SECRETARY, UNDER THE EXISTING CIRCUMSTANCES, TO EXAMINE AND TO SIGN ALL FINALLY PROCESSED DOCUMENTS EMBODYING HIS DECISIONS IN THE PREMISES, THE UNDER SECRETARY HAS ISSUED INSTRUCTIONS THAT CERTAIN (RELATIVELY) MINOR CLASSES OF DOCUMENTS, INCLUDING CLAIMS, BE PREPARED FOR THE SIGNATURE OF A RESPONSIBLE OFFICIAL OF HIS OFFICE " BY DIRECTION OF THE UNDER SECRETARY OF WAR," AS IN THE INSTANT CASE.

IT IS NOT THE PURPOSE OF THE UNDER SECRETARY IN SO DOING TO ATTEMPT TO DELEGATE TO ANOTHER THE DISCRETIONARY POWER TO ACT IN SUCH CASES. THE WAR DEPARTMENT IS CONVERSANT WITH THE DISTINCTIONS DRAWN BY THE FEDERAL COURTS AND THE LEGAL OFFICERS OF THE GOVERNMENT BETWEEN THE DELEGATION OF DISCRETIONARY AND OF MINISTERIAL FUNCTIONS. THE UNDER SECRETARY'S VIEW IS IN ACCORD WITH A RECENT OPINION OF THE JUDGE ADVOCATE GENERAL THAT---

"* * * AN INSTRUMENT EXECUTED " BY DIRECTION OF THE UNDER SECRETARY OF WAR" AND SUBSCRIBED BY AN OFFICER DESIGNATED BY THE FORMER SO TO DO PURPORTS ON ITS FACE TO EVIDENCE THE ACTION OF THE UNDER SECRETARY. SUCH CASE, THERE IS NO QUESTION OF THE DELEGATION OF THE PERFORMANCE OF A DISCRETIONARY ACT, THAT IS, THE MAKING OF THE DECISION; THE SUBSCRIPTION APPENDED TO THE RECORD MERELY EVIDENCES OR AUTHENTICATES, MINISTERIALLY, THE FACT THAT THE RECORDED ACTION WAS TAKEN OR THE DECISION MADE.' ( JAG 312.4, FEB. 18, 1941, CITING, INTER ALIA, JAG 1020.1, DEC. 31, 1940). COPIES OF THESE OPINIONS ARE INCLOSED.

THE CRUX OF YOUR DECISIONS IN CASES OF THE PRESENT NATURE APPEARS TO BE THAT, WHERE THE HEAD OF THE DEPARTMENT OR OTHER AGENCY (OR AN UNDER OR ASSISTANT OFFICIAL IN THOSE CASES IN WHICH THE DISCRETIONARY POWER TO ACT HAS BEEN LAWFULLY DELEGATED) HAS NOT, IN PERSON, AFFIXED HIS SIGNATURE IN WITNESS OF HIS ACTION, THE GENERAL ACCOUNTING OFFICE REQUIRES SOME OTHER EVIDENCE "THAT THE ACTION WAS BASED ON * * * SPECIFIC AUTHORIZATION" BY THE APPROPRIATE OFFICIAL EXERCISING THE PARTICULAR DISCRETIONARY POWER INVOKED (AS IN 17 COMP. GEN. 393, 394). THERE HAVE BEEN, AND UNDOUBTEDLY WILL BE, CASES IN WHICH NO DOCUMENTARY EVIDENCE OF THE PERSONAL ACTION OF THE UNDER SECRETARY, EXTRINSIC TO THE DOCUMENT SIGNED " BY DIRECTION OF THE UNDER SECRETARY OF WAR," IS AVAILABLE. TYPICAL OF THESE SITUATIONS ARE THOSE MATTERS CONCERNING WHICH THE UNDER SECRETARY'S DIRECTION OR DECISION HAS BEEN ORAL OR HAS CONSISTED OF HIS INITIALS PLACED ON A ROUGH DRAFT OR TENTATIVE MEMORANDUM, FOLLOWED BY HIS ABSENCE FROM WASHINGTON IN CONNECTION WITH INSPECTION OF PROCUREMENT FACILITIES OR OTHER OFFICIAL DUTIES AT THE TIME THE DOCUMENTS EMBODYING HIS ACTION HAVE BEEN FINALLY PREPARED FOR SIGNATURE AND DISPATCH.

IN VIEW OF THE FOREGOING, IT IS URGENTLY REQUESTED THAT THE GENERAL ACCOUNTING OFFICE ACCEPT, AT LEAST FOR THE DURATION OF THE PRESENT EMERGENCY, AS SATISFACTORY UNDER THE REQUIREMENTS OF THE PERTINENT STATUTES, INSTRUMENTS EXECUTED " BY DIRECTION OF THE UNDER SECRETARY OF WAR" AND SIGNED IN EACH INSTANCE BY A RESPONSIBLE SUBORDINATE OFFICIAL, WITHOUT FURTHER EVIDENCE THAT THE ACTIONS ARE THOSE OF THE UNDER SECRETARY OF WAR.

SECTIONS 3 AND 4 OF THE STATUTE HERE INVOLVED PROVIDE:

SEC. 3. THAT THE SECRETARY OF WAR IS AUTHORIZED AND DIRECTED TO EXAMINE INTO, ASCERTAIN, AND DETERMINE THE VALUE OF SUCH PROPERTY LOST, DESTROYED, CAPTURED, OR ABANDONED AS SPECIFIED IN THE FOREGOING PARAGRAPHS, OR THE AMOUNT OF DAMAGE THERETO, AS THE CASE MAY BE; AND THE AMOUNT OF SUCH VALUE OR DAMAGE SO ASCERTAINED AND DETERMINED SHALL BE PAID BY DISBURSING OFFICERS OF THE ARMY, OR SUCH PROPERTY LOST, DESTROYED, CAPTURED, OR ABANDONED, OR SO DAMAGED AS TO BE UNFIT FOR SERVICE, MAY BE REPLACED IN KIND FROM GOVERNMENT PROPERTY ON HAND WHEN THE SECRETARY OF WAR SHALL SO DIRECT.

SEC. 4. THAT THE TENDER OF REPLACEMENT OR OF COMMUTATION OR THE DETERMINATION MADE BY THE SECRETARY OF WAR UPON A CLAIM PRESENTED, AS PROVIDED FOR IN THE FOREGOING SECTION, SHALL CONSTITUTE A FINAL DETERMINATION OF ANY CLAIM COGNIZABLE UNDER THIS CHAPTER, AND SUCH CLAIM SHALL NOT THEREAFTER BE REOPENED OR CONSIDERED.

BY ARMY REGULATIONS 35-7100 THE SECRETARY OF WAR HAS PRESCRIBED THE PROCEDURE FOR FILING CLAIMS OF MILITARY PERSONNEL FOR PRIVATE PROPERTY LOST, DAMAGED, OR DESTROYED IN THE MILITARY SERVICE. THIS PROCEDURE REQUIRES THE INITIATION OF A CLAIM BY SUBMITTING IT IN WRITING TO THE CORPS AREA COMMANDER FOR THE JURISDICTION IN WHICH THE INDIVIDUAL IS SERVING, WHO IN TURN APPOINTS A BOARD CHARGED WITH INQUIRING INTO AND ASCERTAINING THE FACTS AS TO THE ALLEGED LOSS, AND RECOMMENDING THE ACTION TO BE TAKEN UNDER THE STATUTE. THE CLAIM THEN IS FORWARDED THROUGH MILITARY CHANNELS TO THE CHIEF OF FINANCE, WHERE A SECOND BOARD IS CONVENED TO REVIEW THE FACTS AND MAKE FINAL RECOMMENDATION FOR THE DETERMINATION, PRESCRIBED BY THE STATUTE, BY THE SECRETARY OF WAR. THE AUTHORITY OF THE SECRETARY OF WAR TO ENTRUST THE ADMINISTRATIVE DUTIES INVOLVED IN DEVELOPING THE CLAIMS, SUBJECT, OF COURSE, TO HIS APPROVAL, IS NOT QUESTIONED. IF AND WHEN SUCH RECOMMENDATIONS ARE APPROVED BY THE SECRETARY OF WAR, OR ONE OF THE ASSISTANTS AUTHORIZED BY LAW TO ACT FOR HIM, IT IS THE SECRETARY OF WAR WHO PROMULGATES THE CONCLUSION AS HIS OWN, AND SUCH APPROVAL CONSTITUTES A FINAL DETERMINATION OF THE CLAIM.

IN A DECISION OF FEBRUARY 24, 1928, 7 COMP. GEN. 518, 521, A FORMER COMPTROLLER GENERAL HELD THAT THE DUTY OF MAKING A DETERMINATION ON A CLAIM UNDER THE ACT OF MARCH 4, 1921, 41 STAT. 1436, IS REPOSED IN THE SECRETARY OF WAR; THAT THE DUTY IS JUDICIAL IN NATURE AND IS FOR EXERCISE BY THE SECRETARY OF WAR OR BY HIS DIRECTION BY ONE OF THE ASSISTANT SECRETARIES OF WAR. IT IS UNDERSTOOD THAT YOU DO NOT QUESTION THE JUDICIAL NATURE OF THE DETERMINATION REQUIRED BY THE LAW TO BE MADE IN THIS CLASS OF CLAIMS.

IT APPEARS TO BE YOUR VIEW THAT AN INSTRUMENT EXECUTED " BY DIRECTION OF THE UNDER SECRETARY OF WAR" AND SUBSCRIBED BY AN OFFICER DESIGNATED BY THE FORMER SO TO DO, PURPORTS ON ITS FACE TO EVIDENCE THE ACTION OF THE UNDER SECRETARY. THE INSTRUCTIONS YOU STATE HAVE BEEN ISSUED FOR CERTAIN ADMINISTRATIVE OFFICIALS IN YOUR OFFICE TO EXAMINE AND SIGN THE FINALLY PROCESSED DOCUMENTS EVIDENCING THE DETERMINATION BASED ON THE FINDINGS AND RECOMMENDATIONS OF THE BOARDS OF OFFICERS IN CONNECTION WITH CLAIMS OF MILITARY PERSONNEL UNDER THE ACT OF MARCH 4, 1921, FOR PRIVATE PROPERTY LOST, DAMAGED, OR DESTROYED IN THE MILITARY SERVICE, WOULD SEEM TO CONSTITUTE A DELEGATION OF NOT ONLY THE MINISTERIAL ACT OF SIGNING SUCH DOCUMENTS BUT, ALSO, OF THE AUTHORITY (INVOLVING JUDGMENT AND DISCRETION) TO "EXAMINE INTO, ASCERTAIN, AND DETERMINE," THE MATTERS SPECIFICALLY VESTED BY THE LAW IN THE SECRETARY OF WAR.

THAT THE DUTY TO DETERMINE CLAIMS OF THIS NATURE IS JUDICIAL AND IS EXCLUSIVE SEE UNITED STATES V. BABCOCK AND UNITED STATES V. HAYDEN, 250 U.S. 328, AT PAGE 331, CONSTRUING THE FORMER ACT AUTHORIZING SETTLEMENT OF CLAIMS OF THIS CHARACTER BY THE PROPER ACCOUNTING OFFICERS OF THE TREASURY. THE DUTY THERETOFORE PERFORMED BY THE PROPER ACCOUNTING OFFICERS OF THE TREASURY WAS, BY SECTIONS 3 AND 4 OF THE ACT OF MARCH 4, 1921, 41 STAT. 1437, CONFERRED UPON THE SECRETARY OF WAR AND, TO PARAPHRASE THE LANGUAGE OF THE SUPREME COURT IN THE BABCOCK AND HAYDEN CASES," THESE WORDS EXPRESS CLEARLY THE INTENTION TO CONFER UPON THE SECRETARY OF WAR EXCLUSIVE JURISDICTION AND TO MAKE HIS DECISION FINAL.' IT IS TO BE OBSERVED THAT THE AUTHORITY PROPOSED TO BE EXERCISED " BY DIRECTION" IS THE AUTHORITY WHICH THE SECRETARY OF WAR HAS ASSIGNED TO THE UNDER SECRETARY OF WAR; THAT IS, THE ACTION IS TO BE TAKEN " BY DIRECTION OF THE UNDER SECRETARY OF WAR.' BUT THE PAPERS CONTAIN NO EVIDENCE OF ANY CHARACTER THAT THE UNDER SECRETARY OF WAR HAS EXERCISED ANY DISCRETION OR JUDGMENT IN THE MATTER OR PERFORMED ANY DUTY WHATEVER IN CONNECTION WITH THE CLAIM. THE ACTION OF THE SECRETARY OF WAR IS REQUIRED BY THE STATUTE TO BE TAKEN ON EACH CLAIM AND THE ASSIGNMENT TO SOME SUBORDINATE OFFICIAL OF THE DUTY OF APPROVING OR DISAPPROVING CLAIMS OF THIS CHARACTER AND OF SIGNING THE DOCUMENT EVIDENCING HIS DETERMINATION " BY DIRECTION" OF EITHER THE SECRETARY OF WAR, THE UNDER SECRETARY OF WAR, OR THE ASSISTANT SECRETARY OF WAR IS A DELEGATION OF THE JURISDICTION THUS REPOSED IN THE SECRETARY OF WAR BY THE ACT. NUMEROUS DOCUMENTS EMANATING FROM THE WAR DEPARTMENT, SIGNED BY SUBORDINATE OFFICIALS " BY DIRECTION" OR " BY ORDER" OF THE SECRETARY OF WAR ARE NOT QUESTIONED BY THIS OFFICE, EVEN THOUGH IN MANY CASES THE EXECUTION OF THE DOCUMENTS INVOLVES THE EXERCISE OF A DISCRETION. BUT WHERE A STATUTE SPECIFICALLY CONFERS ON THE SECRETARY OF WAR THE AUTHORITY TO EXAMINE INTO, ASCERTAIN, AND DETERMINE THE VALUE OF LOST OR DAMAGED PROPERTY AND PROVIDES THAT "THE DETERMINATION MADE BY THE SECRETARY OF WAR" SHALL BE FINAL AND CONCLUSIVE, THE PAPERS MUST SHOW THAT THE SECRETARY OF WAR (OR THE UNDER SECRETARY OF WAR OR THE ASSISTANT SECRETARY OF WAR PURSUANT TO AUTHORITY FROM THE SECRETARY OF WAR) PERSONALLY HAS MADE THE DETERMINATION. A MERE RECITATION THAT IT IS DONE BY A NONSTATUTORY OFFICIAL IN THE OFFICE OF THE UNDER SECRETARY OF WAR--- THE EXECUTIVE OR THE ASSISTANT EXECUTIVE--- BY DIRECTION OF THE SECRETARY OF WAR OR THE UNDER SECRETARY OF WAR OR THE ASSISTANT SECRETARY OF WAR IS NOT EVIDENCE THAT ANY ONE OF SUCH OFFICIALS PERSONALLY HAS EXERCISED THE JUDGMENT OR DISCRETION REQUIRED UNDER THE STATUTE IN THE SETTLEMENT OF THE CLAIM AND THIS OFFICE COULD NOT ACCEPT SUCH A SETTLEMENT " BY DIRECTION OF THE UNDER SECRETARY OF WAR" AS A SETTLEMENT OF A CLAIM UNDER THE STATUTE. THE FACT THAT UNDER PRESENT CONDITIONS THE DUTY SO IMPOSED UPON THE SECRETARY OF WAR IS BURDENSOME AFFORDS NO BASIS FOR THIS OFFICE TO ACCEPT A DETERMINATION MADE, SO FAR AS THE PAPERS SHOW, BY THE EXECUTIVE OR ASSISTANT EXECUTIVE IN THE OFFICE OF THE UNDER SECRETARY OF WAR IN LIEU OF THE DETERMINATION SPECIFICALLY REQUIRED UNDER THE STATUTE.