B-33477, APR 30, 1943

B-33477, APR 30, 1943

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL CARL WITCHER, F.D., U.S. ARMY:

THROUGH CHIEF OF FINANCE, WAR DEPARTMENT:

THERE WERE FORWARDED HERE BY INDORSEMENT OF MARCH 27, 1943, YOUR LETTER OF FEBRUARY 27, REQUESTING DECISION WHETHER, IN VIEW OF THE FACTS AS DETERMINED BY THE SECRETARY OF WAR, YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF FIRST LIEUTENANT WILLIAM E. BUXTON, AAF, U.S. ARMY, IN THE AMOUNT OF $156.50, AS REIMBURSEMENT UNDER THE ACT OF MARCH 4, 1921, 41 STAT. 1436, FOR LOSS OF PERSONAL PROPERTY.

THE CIRCUMSTANCES OF THE LOSS ARE STATED IN THE REPORT OF THE BOARD OF OFFICERS WHICH MET (DATE NOT SHOWN) TO EXAMINE THE CLAIM, AS FOLLOWS:

"THAT SECOND LIEUTENANT (NOW FIRST LIEUTENANT) WILLIAM E. BUXTON, A.A.F., WAS PILOTING A P-40E, AIRPLANE, UNDER ORDERS ON A FERRY FLIGHT, EN ROUTE FROM LOSEY FIELD, PONCE, PUERTO RICE, TO ALBROOK FIELD, CANAL ZONE, ON DECEMBER 13, 1941, AT WHICH TIME THE AIRPLANE CAUGHT FIRE DUE TO MECHANICAL DEFECTS. LIEUTENANT BUXTON CUT THE SWITCHES AND FULLY CLOSED THE THROTTLE OF THE AIRPLANE IN AN EFFORT TO CONTROL THE FIRE, BUT WAS UNSUCCESSFUL. CLAIMANT WAS FORCED TO ABANDON THE PLANE, AND ALL OF THE PERSONAL PROPERTY WHICH HE WAS CARRYING IN THE PLANE WAS LOST AT SEA.

"THE BOARD FINDS THAT THE PROPERTY WAS NOT COVERED BY INSURANCE, WAS THE PERSONAL PROPERTY OF THE CLAIMANT, AND DOES NOT INCLUDE ARTICLES ISSUED BY THE GOVERNMENT.

"THE BOARD FURTHER FINDS THAT THE PROPERTY FOR WHICH CLAIM IS MADE WAS ABANDONED BY REASON OF MILITARY EMERGENCY REQUIRING ITS ABANDONMENT, OR OTHERWISE LOST IN THE FIELD DURING CAMPAIGN; THAT THE PROPERTY, THE REIMBURSEMENT FOR THE LOSS OF WHICH IS RECOMMENDED HEREIN, WAS REQUIRED TO BE POSSESSED AND USED BY THE CLAIMANT, OR WAS REASONABLE, USEFUL, NECESSARY, AND PROPER FOR THE CLAIMANT TO HAVE IN HIS POSSESSION IN THE PUBLIC SERVICE IN THE LINE OF DUTY, WHILE IN QUARTERS, OR IN THE FIELD; THAT THE LOSS OCCURRED UNDER THE CIRCUMSTANCES ASCERTAINED AND DETERMINED AS SET FORTH ABOVE, WITHOUT FAULT OR NEGLIGENCE ON THE PART OF THE CLAIMANT; AND FALLS WITHIN THE PROVISIONS OF PARAGRAPH 4 OF SECTION 1 OF THE ACT OF MARCH 4, 1921.

"IT IS THE VIEW OF THE BOARD THAT REPLACEMENT IN KIND FROM GOVERNMENT PROPERTY ON HAND CANNOT BE MADE WITHIN A REASONABLE TIME, AND WOULD BE INAPPROPRIATE BY REASON OF THE UNCERTAINTY OF THE WHEREABOUTS OF CLAIMANT AT THE PRESENT TIME; AND THE THAT THE AMOUNT RECOMMENDED FOR REIMBURSEMENT OF THE CLAIMANT FOR THE LOSS OF THE ARTICLES REPRESENTS THE REASONABLE VALUE OF THE PROPERTY SO LOST AS SHOWN ON THE ATTACHED LIST."

THE QUESTION IS WHETHER THE PROPERTY WAS LOST "IN THE FIELD DURING CAMPAIGN" WITHIN THE MEANING OF PARAGRAPH 4 OF SECTION 1 OF THE ACT OF MARCH 4, 1921, 41 STAT. 1436. THAT PARAGRAPH STIPULATES CERTAIN CONDITIONS UNDER WHICH REIMBURSEMENT IS AUTHORIZED, AS FOLLOWS:

"WHEN SUCH PRIVATE PROPERTY IS DESTROYED OR CAPTURED BY THE ENEMY, OR IS DESTROYED TO PREVENT ITS FALLING INTO THE HANDS OF THE ENEMY, OR IS ABANDONED ON ACCOUNT OF LACK OF TRANSPORTATION OR BY REASON OF MILITARY EMERGENCY REQUIRING ITS ABANDONMENT, OR IS OTHERWISE LOST IN THE FIELD DURING CAMPAIGN."

IN THE PRESENT CASE THE PROPERTY WAS LOST WHEN THE CLAIMING OFFICER WAS FORCED, DUE TO ENGINE TROUBLE, TO ABANDON HIS PLANE DURING A FERRY FLIGHT FROM LOSEY FLIGHT, PONCE, PUERTO RICO, TO ALBROOK FIELD, CANAL ZONE.

THE CONDITIONS UNDER WHICH MILITARY PLANES ARE FERRIED IN TIME OF WAR AND THE DUTIES REQUIRED OF MILITARY PERSONNEL OPERATING THE PLANES ON SUCH FLIGHTS ARE, OF COURSE, MATTERS OF MILITARY KNOWLEDGE NOT DISCLOSED. HOWEVER, THE TERM "FERRY FLIGHT" ORDINARILY IS UNDERSTOOD AS MEANING NOTHING MORE THAN THE TRANSPORTING OF AN AIRPLANE UNDER ITS OWN POWER TO A POINT DESIGNATED IN THE ORDERS DIRECTING SUCH FLIGHT.

THE CONGRESS, IN ENACTING LEGISLATION PROVIDING FOR REIMBURSEMENT FOR PROPERTY LOST IN THE MILITARY SERVICE, CAREFULLY STIPULATED IN THE STATUTE THE CONDITIONS UNDER WHICH REIMBURSEMENT WOULD BE AUTHORIZED, AND THERE DOES NOT APPEAR ANY SOUND BASIS TO INFER A LEGISLATIVE INTENT TO AUTHORIZE REIMBURSEMENT UNDER CONDITIONS OTHER THAN AS SET FORTH IN THE STATUTE. THE TERM "IN FIELD DURING CAMPAIGN" GENERALLY HAS BEEN CONSTRUED AS APPLYING TO OFFICERS AND MEN ON DUTY IN THE FIELD WITH TROOPS AND ENGAGED IN CAMPAIGN AGAINST AN ENEMY. 26 COMP.DEC. 257. I FIND NO SOUND BASIS FOR HOLDING THAT MILITARY PERSONNEL OPERATING AIRPLANES UNDER ORDERS REQUIRING ORDINARY FERRY FLIGHTS MAY BE CONSIDERED AN ENGAGED IN CAMPAIGN WITHIN THE MEANING OF THE STATUTE.

ACCORDINGLY, YOU ARE ADVISED THAT, ON THE BASIS OF THE PRESENT RECORD, PAYMENT ON THE VOUCHER IS NOT AUTHORIZED. THE VOUCHER AND ACCOMPANYING PAPERS ARE RETURNED HEREWITH.