B-40947, SEPTEMBER 21, 1944, 24 COMP. GEN. 238

B-40947, SEPTEMBER 21, 1944, 24 COMP. GEN. 238

PRIVATE PROPERTY - LOSS OR DAMAGE CAUSED BY MARINE CORPS PERSONNEL THE AUTHORITY UNDER THE ACT OF JUNE 1, 1918, AS AMENDED, TO SETTLE CLAIMS FOR DAMAGES TO OR LOSS OF PRIVATELY OWNED PROPERTY CAUSED BY NAVY OR MARINE CORPS PERSONNEL DOES NOT APPLY TO CLAIMS BY OTHER NAVY OR MARINE CORPS PERSONNEL FOR THE LOSS OR DAMAGE OF THEIR PERSONAL PROPERTY, AND, THEREFORE, CLAIMS OF MARINE CORPS PERSONNEL FOR AMOUNTS REPRESENTING SUMS OF MONEY WHICH WERE ENTRUSTED BY THEM TO AN ENLISTED MAIL ORDERLY FOR THE PURPOSE OF OBTAINING POSTAL MONEY ORDERS AND WHICH WERE CONVERTED BY HIM MAY NOT BE CONSIDERED AS WITHIN THE SCOPE OF SAID ACT, AS AMENDED. MAIL RECEIVED FROM THE POSTAL SERVICE BY A MARINE CORPS ENLISTED MAN ACTING AS MAIL ORDERLY AND APPROPRIATED TO HIS OWN USE INSTEAD OF BEING DELIVERED TO THE ADDRESS IN HIS BATTALION IS REGARDED AS THE PROPERTY OF THE SENDERS RATHER THAN OF THE ADDRESSEES, AND, THEREFORE, THE SENDERS HAVE SUFFERED LOSSES OF PRIVATE PROPERTY FOR WHICH A MARINE CORPS ENLISTED MAN IS RESPONSIBLE, SO THAT CLAIMS SUBMITTED BY THEM FOR REIMBURSEMENT OF SUCH LOSSES ARE FOR CONSIDERATION UNDER THE ACT OF JULY 1, 1918, AS AMENDED, AUTHORIZING THE SETTLEMENT OF CLAIMS FOR DAMAGE OR LOSS OF PRIVATELY OWNED PROPERTY CAUSED BY NAVY OR MARINE CORPS PERSONNEL.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, SEPTEMBER 21, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 22, 1944, IN WHICH YOU REQUEST DECISION WHETHER OR NOT IT IS WITHIN THE AUTHORITY VESTED IN YOU BY THE ACT OF JULY 1, 1918, 40 STAT. 704, 705, AS AMENDED BY THE ACT OF JULY 11, 1919, 41 STAT. 13W, 34 U.S.C. 600, TO CONSIDER AND PAY CERTAIN CLAIMS FOR THE VALUE OF PRIVATELY OWNED PROPERTY WHICH WAS CONVERTED BY AN ENLISTED MAN OF THE MARINE CORPS TO HIS OWN USE.

IT IS STATED THAT THE SAID ENLISTED MAN WAS ASSIGNED TO DUTY AS BATTALION MAIL ORDERLY; THAT WHILE SO ACTING HE RECEIVED CERTAIN MAIL MATTER FOR MEMBERS OF THE BATTALION WHICH HE DID NOT DELIVER BUT APPROPRIATED THE CONTENTS OF THE LETTERS AND PARCELS TO HIS OWN USE AND, ALSO, THAT HE CONVERTED TO HIS OWN USE CERTAIN SUMS OF MONEY RECEIVED FROM OTHER ENLISTED MEN OF THE BATTALION FOR THE PURPOSE OF OBTAINING AND DISPATCHING POSTAL MONEY ORDERS; THAT THE TAKING OF THE MONEY AND MAIL MATTER WAS ADMITTED BY THE SAID ENLISTED MAN, AND THAT HE HAS BEEN CONVICTED BY GENERAL COURT-MARTIAL BUT THAT NO RESTITUTION WAS MADE. IT IS FURTHER STATED THAT VARIOUS CLAIMS OF THE SENDERS OF THE LOST MAIL MATTER WERE PRESENTED TO THE POST OFFICE DEPARTMENT BUT WERE REFERRED TO THE NAVY DEPARTMENT, SINCE THE MAIL MATTER WAS NOT WITHIN THE JURISDICTION OF THE POST OFFICE WHEN TAKEN, AND THAT IT IS ANTICIPATED THAT "THE ENLISTED MEN WHOSE MONEY-ORDER MONEY WAS STOLEN WILL LIKEWISE PRESENT CLAIMS FOR REIMBURSEMENT.'

ARTICLE 1-65 (1), MARINE CORPS MANUAL, PROVIDES:

(1) THE LAWS, REGULATIONS, AND INSTRUCTIONS GOVERNING THE DESIGNATION, DUTIES AND SUPERVISION OF NAVY MAIL CLERKS AND ASSISTANT NAVY MAIL CLERKS ARE CONTAINED IN ARTICLES 2063 TO 2071, NAVY REGULATIONS, ARTICLES D-5305 TO 5311, BUREAU OF NAVIGATION MANUAL, AND PAMPHLET ISSUED BY THE POST OFFICE DEPARTMENT ENTITLED " INSTRUCTIONS FOR THE GUIDANCE OF NAVY MAIL CLERKS AND ASSISTANT NAVY MAIL CLERKS.' THESE REGULATIONS AND INSTRUCTIONS, ALTHOUGH COMPILED PRIMARILY FOR VESSELS AND SHORE ESTABLISHMENTS OF THE NAVY, APPLY EQUALLY TO MARINE CORPS COMMANDS.

PARAGRAPH 3, ARTICLE 2064, U.S. NAVY REGULATIONS, READS AS FOLLOWS:

(3) IN THE CASE OF ORGANIZATIONS TO WHICH MAIL CLERKS ARE NOT DETAILED OR SERVING AS SUCH, THE COMMANDING OFFICER OF THE SHIP OR SHORE STATION MAY, IN HIS DISCRETION, APPOINT SOME TRUSTWORTHY PERSON TO PERFORM THE DUTY OF MAIL ORDERLY, TO WHOM HE SHALL GIVE AUTHORITY TO RECEIVE THE MAIL FROM THE POST OFFICE AND TO SIGN RECEIPTS FOR ALL REGISTERED LETTERS EXCEPT SUCH AS THE SENDER HAS INDORSED "DELIVER ONLY TO ADDRESSEE.' MAIL ADDRESSED TO A SHORE STATION SHALL BE DISTRIBUTED IN ACCORDANCE WITH SUCH REGULATIONS AS THE COMMANDING OFFICER MAY MAKE.

THE ACT OF JULY 1, 1918, 40 STAT. 704, 705, PROVIDED:

* * * THAT HEREAFTER THE SECRETARY OF THE NAVY IS AUTHORIZED TO CONSIDER, ASCERTAIN, ADJUST, DETERMINE, AND PAY THE AMOUNTS DUE ON ALL CLAIMS FOR DAMAGES TO AND LOSS OF PRIVATE PROPERTY OF INHABITANTS OF ANY EUROPEAN COUNTRY NOT AN ENEMY OR ALLY OF AN ENEMY WHEN THE AMOUNT OF THE CLAIM DOES NOT EXCEED THE SUM OF $1,000, OCCASIONED AND CAUSED BY MEN IN THE NAVAL SERVICE DURING THE PERIOD OF THE PRESENT WAR, ALL PAYMENTS IN SETTLEMENT OF SUCH CLAIMS TO BE MADE OUT OF " PAY, MISCELLANEOUS.'

THAT PROVISIONS WAS AMENDED BY THE ACT OF JULY 11, 1919, 41 STAT. 131, 132, 34 U.S.C. 600, TO READ:

* * * PROVIDED, THAT THE SECRETARY OF THE NAVY IS AUTHORIZED TO CONSIDER, ASCERTAIN, ADJUST, DETERMINE, AND PAY THE AMOUNTS DUE IN ALL CLAIMS FOR DAMAGES (OTHER THAN SUCH AS ARE OCCASIONED BY VESSELS OF THE NAVY), TO AND LOSS OF PRIVATELY OWNED PROPERTY, OCCURRING SUBSEQUENT TO APRIL 6, 1917, WHERE THE AMOUNT OF THE CLAIM DOES NOT EXCEED $500 FOR WHICH DAMAGE OR LOSS MEN IN THE NAVAL SERVICE OR MARINE CORPS ARE FOUND TO BE RESPONSIBLE, ALL PAYMENTS IN SETTLEMENT OF SAID CLAIMS TO BE MADE OUT OF THE APPROPRIATION " PAY, MISCELLANEOUS * * *.'

FUNDS HAVE BEEN MADE AVAILABLE IN THE ANNUAL APPROPRIATION ACTS FOR THE NAVY DEPARTMENT UNDER THE HEADING MISCELLANEOUS EXPENSES FOR "PAYMENT OF CLAIMS FOR DAMAGES AS PROVIDED IN THE ACT APPROVED JULY 11, 1919 (34 U.S.C. 600).' SEE THE NAVAL APPROPRIATION ACT, 1944, 57 STAT. 197, AND THE NAVAL APPROPRIATION ACT, 1945, PUBLIC LAW 347, APPROVED JUNE 22, 1944, 58 STAT. 301.

WHILE THE PURPOSE OF THE AMENDATORY ACT OF JULY 11, 1919, WAS TO BROADEN THE SCOPE OF THE PRIOR LEGISLATION WITH RESPECT TO THE CLASS OF PERSONS AUTHORIZED TO BE REIMBURSED FOR DAMAGES TO AND LOSS OF PRIVATELY OWNED PROPERTY FOR WHICH MEN IN THE NAVAL SERVICE OR MARINE CORPS ARE FOUND RESPONSIBLE, 58 CONG. REC. 1083, 1084, THE ACT HAS NOT BEEN VIEWED AS AUTHORIZING THE CONSIDERATION OR PAYMENT OF CLAIMS BY OTHER PERSONNEL OF THE NAVY OR MARINE CORPS. THE ACT OF OCTOBER 6, 1917, 40 STAT. 389, NOW SUPERSEDED BY THE ACT OF OCTOBER 27, 1943, 57 STAT. 582, SPECIFICALLY SETS FORTH THE CIRCUMSTANCES UNDER WHICH REIMBURSEMENT TO OFFICERS AND ENLISTED MEN OF THE NAVY AND MARINE CORPS SHOULD BE BE MADE FOR THEIR PERSONAL PROPERTY LOST, DAMAGED, OR DESTROYED IN SUCH SERVICE, AND THE GENERAL PROVISIONS IN THE SAID ACT OF JULY 1, 1918, AS AMENDED, MAY NOT BE REGARDED AS INTENDED TO SUPPLEMENT SUCH SPECIFIC PROVISIONS IN THE ACT OF OCTOBER 6, 1917, OR AS SUPPLEMENTING THE SPECIFIC PROVISIONS NOW CONTAINED IN THE ACT OF OCTOBER 27, 1943. SEE DECISION OF OCTOBER 15, 1926, A- 14805. CF. 6 COMP. GEN. 52. IT FOLLOWS THAT CLAIMS BY MARINE CORPS PERSONNEL FOR AMOUNTS ENTRUSTED BY THEM TO THE MAIL ORDERLY AND WHICH WERE CONVERTED BY HIM WOULD NOT COME WITHIN THE SCOPE OF THE SAID ACT OF JULY 1, 1918, AS AMENDED.

CONCERNING THE MAIL MATTER WHICH WAS RECEIVED FROM THE POSTAL SERVICE BY THE ENLISTED MAN WHILE ACTING AS MAIL ORDERLY AND WHICH HE APPROPRIATED TO HIS OWN USE INSTEAD OF DELIVERING SUCH MAIL TO THE ADDRESSEES, AS IT WOULD APPEAR THAT, UNDER SUCH CIRCUMSTANCES, THE SENDERS OF SUCH MAIL MATTER, RATHER THAN THE ADDRESSEES, ARE TO BE REGARDED AS THE OWNERS THEREOF, AND, THEREFORE, THAT THEY HAVE SUFFERED LOSSES OF PRIVATE PROPERTY FOR WHICH AN ENLISTED MAN OF THE MARINE CORPS HAS BEEN FOUND RESPONSIBLE, THE CLAIMS SUBMITTED BY THEM FOR REIMBURSEMENT OF THE LOSSES SO SUFFERED APPEAR TO BE PROPERLY FOR CONSIDERATION AS WITHIN THE SCOPE OF THE SAID PROVISIONS OF THE ACT OF JULY 1, 1918, AS AMENDED. CF. 25 COMP. DEC. 896; 10 COMP. GEN. 229; AND DECISION OF JANUARY 30, 1942, B-23185.