B-62339, FEBRUARY 20, 1947, 26 COMP. GEN. 613

B-62339: Feb 20, 1947

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NOR MAY SUCH PAYMENT BE MADE IF DEATH OCCURS UNDER CIRCUMSTANCES WHERE IT IS NOT KNOWN WHETHER THE LOSS. 1947: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 3. WHO WAS KILLED ON OCTOBER 9. IS STATED THAT HIS PERSONAL PROPERTY HAS DESTROYED DURING THE SAME DISASTER. OTHERS IN THE NAVAL SERVICE OF THE UNITED STATES" AS MAY HAVE SUFFERED. THE QUESTION AROSE AS TO WHETHER THE WIDOW OF A NAVAL OFFICER WHO WAS KILLED WHILE PILOTING A NAVAL PLANE MIGHT BE REIMBURSED FOR THE VALUE OF A WATCH OWNED BY HIM. WHICH WAS DAMAGED BEYOND REPAIR IN THE SAME ACCIDENT. IT WAS STATED IN THE SAID DECISION OF MAY 25. IT WAS HELD THAT WHERE AN OFFICER OF THE NAVY WHO WAS ENTITLED UNDER THE ACT OF MARCH 2. THE AMOUNT TO WHICH HE WAS ENTITLED MIGHT BE PAID TO HIS HEIRS OR LEGAL REPRESENTATIVES.

B-62339, FEBRUARY 20, 1947, 26 COMP. GEN. 613

PROPERTY - PRIVATE - DAMAGE, LOSS, OR DESTRUCTION - PAYMENT TO HEIRS OR LEGAL REPRESENTATIVES OF DECEASED NAVAL PERSONNEL AND CIVILIAN EMPLOYEES OF NAVY DEPARTMENT UNDER THE MILITARY PERSONNEL CLAIMS ACT OF 1945, AS EXTENDED BY THE ACT OF DECEMBER 28, 1945, AUTHORIZING REIMBURSEMENT TO NAVAL PERSONNEL AND CIVILIAN EMPLOYEES OF THE NAVY DEPARTMENT FOR THE DAMAGE, LOSS, OR DESTRUCTION OF PERSONAL PROPERTY INCIDENT TO THEIR SERVICE, PAYMENT MAY NOT BE MADE TO THE HEIRS OR LEGAL REPRESENTATIVES OF INDIVIDUALS WHO DIE PRIOR TO OR SIMULTANEOUSLY WITH THE DAMAGE, LOSS, ETC.; NOR MAY SUCH PAYMENT BE MADE IF DEATH OCCURS UNDER CIRCUMSTANCES WHERE IT IS NOT KNOWN WHETHER THE LOSS, DAMAGE, ETC., OCCURRED SIMULTANEOUSLY WITH DEATH OR PRIOR OR SUBSEQUENT THERETO.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, FEBRUARY 20, 1947:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 3, 1946 (FILE JAG:III:LER:FR), REQUESTING RECONSIDERATION OF DECISION OF MAY 25, 1931 (A -36424), 10 COMP. GEN. 525, CONSTRUING THE ACT OF OCTOBER 6, 1917, 40 STAT. 389, AS AMENDED BY THE ACT OF MARCH 3, 1927, 44 STAT. 1368, IN VIEW OF THE PROVISIONS OF THE ACT OF DECEMBER 28, 1945, 59 STAT. 662, AND THE LARGE NUMBER OF CLAIMS BEING PRESENTED BY DEPENDENT RELATIVES AND PERSONAL REPRESENTATIVES OF DECEASED NAVAL PERSONNEL OF WORLD WAR II FOR THE VALUE OF LOST OR DAMAGED PERSONAL PROPERTY UNDER CIRCUMSTANCES WHERE THE LOSS OR DAMAGE OCCURRED SUBSEQUENT TO, OR SIMULTANEOUSLY WITH, THE DEATH OF NAVAL PERSONNEL IN THE SAME DISASTER. IN THE PARTICULAR CASE HERE REPRESENTED, MRS. JULIA A. MORAN CLAIMS REIMBURSEMENT FOR THE VALUE OF THE PERSONAL PROPERTY OF HER SON, FRANCIS J. MORAN, FIREMAN FIRST CLASS, UNITED STATES NAVY, WHO WAS KILLED ON OCTOBER 9, 1945, DURING THE OKINAWA TYPHOON. IS STATED THAT HIS PERSONAL PROPERTY HAS DESTROYED DURING THE SAME DISASTER, EITHER SIMULTANEOUSLY WITH HIS DEATH OR SHORTLY PRIOR OR SUBSEQUENT THERETO.

THE SAID ACT OF OCTOBER 6, 1917, 40 STAT. 389, AS AMENDED, 34 U.S.C. 981- 982, CONSIDERED IN THE DECISION OF MAY 25, 1931, SUPRA, AUTHORIZED AND DIRECTED THE PAYMASTER GENERAL OF THE NAVY "TO REIMBURSE SUCH OFFICERS, ENLISTED MEN, AND OTHERS IN THE NAVAL SERVICE OF THE UNITED STATES" AS MAY HAVE SUFFERED, OR MIGHT THEREAFTER SUFFER, LOSS OR DESTRUCTION OF OR DAMAGE TO THEIR PERSONAL PROPERTY AND EFFECTS IN THE NAVAL SERVICE DUE TO OPERATIONS OF WAR, SHIPWRECK, OR OTHER MARINE DISASTERS, UNDER THE CONDITIONS THEREIN PRESCRIBED. WHILE THE SAID ACT CONTAINED NO PROVISION EXTENDING ITS BENEFITS TO THE HEIRS OR LEGAL REPRESENTATIVE OF NAVAL PERSONNEL WHO LOST THEIR LIVES AS WELL AS THEIR PERSONAL PROPERTY OR EFFECTS IN SUCH SHIPWRECKS, NAVAL DISASTERS, ETC., THE QUESTION AROSE AS TO WHETHER THE WIDOW OF A NAVAL OFFICER WHO WAS KILLED WHILE PILOTING A NAVAL PLANE MIGHT BE REIMBURSED FOR THE VALUE OF A WATCH OWNED BY HIM, WHICH WAS DAMAGED BEYOND REPAIR IN THE SAME ACCIDENT. IN ANSWERING THAT QUESTION IN THE NEGATIVE, IT WAS STATED IN THE SAID DECISION OF MAY 25, 1931, 10 COMP. GEN. 525:

THE SECOND COMPTROLLER OF THE TREASURY IN CONSTRUING SECTION 290, REVISED STATUTES, PROVIDING FOR COMPENSATING OFFICERS OF THE NAVY AND MARINE CORPS FOR THEIR PERSONAL EFFECTS LOST UNDER CERTAIN CIRCUMSTANCES, HELD:

"THE LAW PROVIDING COMPENSATION FOR LOSS OF PERSONAL EFFECTS (SECTION 290 OF THE REVISED STATUTES) APPLIES ONLY TO THE OFFICER HIMSELF, EXCEPT IN CASE OF THE DEATH OF THE OFFICER SUBSEQUENT TO THE DATE OF THE LOSS OF THE EFFECTS, IN WHICH CASE IT MAY BE PAID TO THE HEIRS. BUT THE HEIRS CAN NOT BE PAID AN INDEMNITY FOR THE LOSS OF EFFECTS WHERE THE OFFICER LOST HIS LIFE BY THE SAME CASUALTY THAT CAUSED THE LOSS OF THE EFFECTS. ( DIGEST DEC. SECOND COMP., VOL. 3, SEC. 784.)"

IN 8 COMP. DEC. 688, IT WAS HELD THAT WHERE AN OFFICER OF THE NAVY WHO WAS ENTITLED UNDER THE ACT OF MARCH 2, 1895, 28 STAT. 962, TO REIMBURSEMENT FOR PRIVATE PROPERTY LOST BY THE WRECK OF A VESSEL, AND WHO DIED THEREAFTER BEFORE RECEIVING PROPERTY LOST BY THE WRECK OF A VESSEL, AND WHO DIED THEREAFTER BEFORE RECEIVING REIMBURSEMENT THEREFOR, THE AMOUNT TO WHICH HE WAS ENTITLED MIGHT BE PAID TO HIS HEIRS OR LEGAL REPRESENTATIVES.

APPARENTLY THE REASONS OF THE ABOVE HOLDINGS ARE THAT WHERE THE RIGHT OF THE OFFICER TO REIMBURSEMENT HAS VESTED SUCH VESTED RIGHT ON HIS DEATH PASSES TO HIS HEIRS OR LEGAL REPRESENTATIVES AS A PART OF HIS PERSONAL ESTATE, BUT WHERE THE OFFICER IS KILLED IN THE SAME ACCIDENT IN WHICH HIS PERSONAL PROPERTY IS LOST, THE RIGHT TO REIMBURSEMENT DOES NOT VEST IN THE OFFICER AND THEREFORE DOES NOT BECOME A PART OF HIS ESTATE WHICH PASSES ON HIS DEATH TO HIS HEIRS OR LEGAL REPRESENTATIVES.

THE RIGHT OF THE WIDOW OF LIEUTENANT THOMPSON UNDER THE ACT OF OCTOBER 6, 1917, AS AMENDED, IS AS HIS HEIR OR DISTRIBUTEE OF HIS ESTATE. THE DESTRUCTION OF LIEUTENANT THOMPSON'S WATCH AND HIS DEATH APPARENTLY OCCURRED AT THE SAME TIME. AS HIS RIGHT TO REIMBURSEMENT UNDER THE ACT DID NOT VEST IN HIM PRIOR TO HIS DEATH, SUCH RIGHT WAS NOT A PART OF HIS ESTATE AT THE TIME OF HIS DEATH, AND, THEREFORE, DID NOT PASS TO HIS HEIRS OR LEGAL REPRESENTATIVES.

THEREAFTER, THE SAID ACT OF OCTOBER 6, 1917, AS AMENDED, WAS EXPRESSLY REPEALED BY SECTION 9 OF THE ACT OF OCTOBER 27, 1943, 57 STAT. 583. SECTION 1 OF THE LATTER ACT, 57 STAT. 582, AUTHORIZED THE SECRETARY OF THEY" UNDER SUCH REGULATIONS AS HE MIGHT PRESCRIBE, TO CONSIDER, ASCERTAIN, ADJUST, DETERMINE, AND PAY ANY CLAIMS FILED UNDER OATH OF THE COMMISSIONED AND ENLISTED PERSONNEL OF THE NAVY, AND OF CIVILIAN EMPLOYEES OF THE NAVAL ESTABLISHMENT, FOR LOSS, DAMAGE, OR DESTRUCTION OF THEIR PERSONAL PROPERTY OCCURRING ON OR AFTER DECEMBER 7, 1941. SECTION 3 OF THE SAID ACT OF OCTOBER 27, 1943, 57 STAT. 582, FURTHER PROVIDED IN PERTINENT PART AS FOLLOWS:

* * * IN THE EVENT OF THE DEATH OF ANY PERSON DESIGNATED IN SECTION 1 HEREOF, WHETHER OCCURRING PRIOR OR SUBSEQUENT TO THE TIME ANY LOSS, DESTRUCTION, OR DAMAGE OCCURS, REIMBURSEMENT MAY BE MADE TO ANY DEPENDENT RELATIVE, AS DETERMINED BY THE SECRETARY OF THE NAVY.

HOWEVER, SECTION 4 OF PUBLIC LAW 277, APPROVED DECEMBER 28, 1945, 59 STAT. 662, EXPRESSLY REPEALED THE SAID ACT OF OCTOBER 27, 1943. SECTION 2 OF THE SAID ACT OF DECEMBER 28, 1945, 59 STAT. 662, PROVIDES:

THE SECRETARY OF THE NAVY AND HIS DESIGNEES ARE FURTHER AUTHORIZED TO EXERCISE WITH RESPECT TO CLAIMS OF MILITARY PERSONNEL OR CIVILIAN EMPLOYEES OF THE NAVY DEPARTMENT OR OF THE NAVY FOR DAMAGES TO OR LOSS, DESTRUCTION, CAPTURE, OR ABANDONMENT OF PERSONAL PROPERTY OCCURRING INCIDENT TO THEIR SERVICE, THE RESPECTIVE POWERS CONFERRED UPON THE SECRETARY OF WAR AND HIS DESIGNEES BY THE ACT OF MAY 29, 1945( PUBLIC LAW 67, SEVENTY-NINTH CONGRESS).

THE MILITARY PERSONNEL CLAIMS ACT OF 1945, PUBLIC LAW 67, APPROVED MAY 29, 1945, 59 STAT. 225, REFERRED TO IN SECTION 2 OF THE ACT OF DECEMBER 28, 1945, SUPRA, PROVIDES IN PERTINENT PART AS FOLLOWS:

THAT THE SECRETARY OF WAR, AND SUCH OTHER OFFICER OR OFFICERS AS HE MAY DESIGNATE FOR SUCH PURPOSES AND UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, ARE HEREBY AUTHORIZED TO CONSIDER, ASCERTAIN, ADJUST, DETERMINE, SETTLE, AND PAY ANY CLAIM AGAINST THE UNITED STATES, INCLUDING CLAIMS NOT HERETOFORE SATISFIED ARISING ON OR AFTER DECEMBER 7, 1939, OF MILITARY PERSONNEL AND CIVILIAN EMPLOYEES OF THE WAR DEPARTMENT OR OF THE ARMY, WHEN SUCH CLAIM IS SUBSTANTIATED, AND THE PROPERTY DETERMINED TO BE REASONABLE, USEFUL, NECESSARY, OR PROPER UNDER THE ATTENDANT CIRCUMSTANCES, IN SUCH MANNER AS THE SECRETARY OF WAR MAY BY REGULATION PRESCRIBE, FOR DAMAGE TO OR LOSS, DESTRUCTION, CAPTURE, OR ABANDONMENT OF PERSONAL PROPERTY OCCURRING INCIDENT TO THEIR SERVICE, OR TO REPLACE SUCH PERSONAL PROPERTY IN KIND: PROVIDED, THAT THE DAMAGE TO OR LOSS, DESTRUCTION, CAPTURE, OR ABANDONMENT OF PROPERTY SHALL NOT HAVE BEEN CAUSED IN WHOLE OR IN PART BY ANY NEGLIGENCE OR WRONGFUL ACT ON THE PART OF THE CLAIMANT, HIS AGENT, OR EMPLOYEE, AND SHALL NOT HAVE OCCURRED AT QUARTERS OCCUPIED BY THE CLAIMANT WITHIN CONTINENTAL UNITED STATES (EXCLUDING ALASKA) WHICH ARE NOT ASSIGNED TO HIM OR OTHERWISE PROVIDED IN KIND BY THE GOVERNMENT. NO CLAIM SHALL BE SETTLED UNDER THIS ACT UNLESS PRESENTED IN WRITING WITHIN ONE YEAR AFTER THE ACCIDENT OR INCIDENT OUT OF WHICH SUCH CLAIM ARISES SHALL HAVE OCCURRED: PROVIDED, THAT IF SUCH ACCIDENT OR INCIDENT OCCURS IN TIME OF WAR, OF IF WAR INTERVENES WITHIN TWO YEARS AFTER ITS OCCURRENCE, ANY CLAIM MAY, ON GOOD CAUSE SHOWN, BE PRESENTED WITHIN ONE YEAR AFTER PEACE IS ESTABLISHED. ANY SUCH SETTLEMENT MADE BY THE SECRETARY OF WAR, OR HIS DESIGNEE, UNDER THE AUTHORITY OF THIS ACT AND SUCH REGULATIONS AS HE MAY PRESCRIBE HEREUNDER, SHALL BE FINAL AND CONCLUSIVE FOR ALL PURPOSES, NOTWITHSTANDING ANY OTHER PROVISIONS OF LAW TO THE CONTRARY.

THE VIEWS OF THE NAVY DEPARTMENT IN THE MATTER, AS WELL AS THE TWO QUESTIONS PRESENTED, ARE SET FORTH IN YOUR LETTER OF DECEMBER 3, 1946, AS FOLLOWS:

THE LANGUAGE WHICH WAS USED IN THE AFORESAID ACT OF OCTOBER 6, 1917, IS HIGHLY RESTRICTIVE IN THAT IT AUTHORIZES AND DIRECTS THE PAYMASTER GENERAL OF THE NAVY TO REIMBURSE THE OFFICERS, ENLISTED MEN, AND OTHERS IN THE NAVAL SERVICE FOR PROPERTY LOST OR DESTROYED IN SUCH SERVICE, WHEREAS, THE LANGUAGE USED IN THE ACT OF DECEMBER 28, 1945, EXPRESSLY CONFERS UPON THE SECRETARY OF THE NAVY AND SUCH OTHER OFFICER OR OFFICERS AS HE MAY DESIGNATE FOR SUCH PURPOSES AND UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, THE AUTHORITY TO CONSIDER, ASCERTAIN, ADJUST, DETERMINE AND SETTLE ANY CLAIM AGAINST THE UNITED STATES, OF MILITARY PERSONNEL OR CIVILIAN EMPLOYEES OF THE NAVY DEPARTMENT.

THE INTENTION OF THE CONGRESS RELATIVE TO THE SETTLEMENT OF CLAIMS REGARDLESS OF WHETHER THE DEATH OCCURRED PRIOR OR SUBSEQUENT TO THE TIME OF THE LOSS, DESTRUCTION OR DAMAGE OF THE PROPERTY IS STATED IN CLEAR, CONCISE AND UNEQUIVOCAL LANGUAGE IN THE ACT OF OCTOBER 27, 1943, ABOVE REFERRED TO. MOREOVER, THE INTENTION OF THE CONGRESS TO CONFER UPON THE SECRETARY OF THE NAVY DISCRETIONARY POWERS TO PRESCRIBE REGULATIONS FOR THE ADJUSTMENT AND SETTLEMENT OF CLAIMS IS VERY CLEARLY SHOWN BY THE FOLLOWING LANGUAGE OF THIS ACT:

"IN THE EVENT OF THE DEATH OF ANY PERSON DESIGNATED IN SECTION 1 HEREOF, WHETHER OCCURRING PRIOR OR SUBSEQUENT TO THE TIME ANY LOSS, DESTRUCTION, OR DAMAGE OCCURS, REIMBURSEMENT MAY BE MADE TO ANY DEPENDENT RELATIVE AS DETERMINED BY THE SECRETARY OF THE NAVY.'

IN THE PARTICULAR CASE PRESENTED HEREWITH, IT HAS BEEN DETERMINED THAT THE DEATH OF FRANCIS J. MORAN, F1C, USN, AND THE DESTRUCTION OF THE PROPERTY RESULTED FROM THE SAME DISASTER, HOWEVER, IT IS UNKNOWN, AS IT IS IN MANY CASES, WHETHER THE DEATH OCCURRED PRIOR OR SUBSEQUENT TO THE DESTRUCTION OF HIS PROPERTY. IF IT COULD BE DEFINITELY ESTABLISHED THAT DEATH ACTUALLY OCCURRED ONE MINUTE OR MORE PRIOR (SUBSEQUENT) TO THE DESTRUCTION OF THE PROPERTY, THEN APPLYING THE REASONS FOR THE RULE ENUNCIATED IN THE AFORESAID COMPTROLLER GENERAL'S DECISIONS (A-36424), THE RIGHT WOULD BECOME A VESTED ONE AND PASS TO HIS HEIRS OR PERSONAL REPRESENTATIVES. WHERE DEATH AND PROPERTY DAMAGE RESULT FROM THE SAME ACCIDENT OR DISASTER, A PRESUMPTION THAT DEATH OCCURRED SUBSEQUENT TO THE DESTRUCTION OF THE PROPERTY IS JUST AS REASONABLE AS THE PRESUMPTION THAT DEATH AND DESTRUCTION OF THE PROPERTY OCCURRED SIMULTANEOUSLY.

IN VIEW OF THE LATITUDE OF THE ACT OF DECEMBER 28, 1945, WHICH HAS SUPERSEDED AND GREATLY ENLARGED THE PROVISIONS OF THE AFORESAID ACT OF OCTOBER 6, 1917, AND ALSO THE BROAD DISCRETIONARY POWERS CONFERRED UPON THE SECRETARY OF THE NAVY TO PROMULGATE REGULATIONS FOR THE ADJUSTMENT AND SETTLEMENT OF PERSONNEL CLAIMS FOR PROPERTY DAMAGE, YOUR EARLY DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

(A) UNDER THE ACT OF MAY 29, 1945 ( PUBLIC LAW 67, 79TH CONGRESS), MADE APPLICABLE TO THE NAVY DEPARTMENT AND TO THE NAVY BY THE ACT OF DECEMBER 28, 1945 ( PUBLIC LAW 277, 79TH CONGRESS), IS THE SECRETARY OF THE NAVY AUTHORIZED TO CONSIDER AND SETTLE THE CLAIM OF MRS. JULIA A. MORAN FOR LOSS OF PERSONAL PROPERTY OWNED BY HER SON, FRANCIS J. MORAN, F1C, USN, WHO WAS KILLED DURING THE OKINAWA TYPHOON ON OCTOBER 9, 1945, AND WHOSE PROPERTY WAS DESTROYED IN THE SAME DISASTER, THE DESTRUCTION OCCURRING SIMULTANEOUSLY WITH HIS DEATH OR VERY SHORTLY PRIOR OR SUBSEQUENT THERETO?

(B) UNDER THE ACT OF MAY 29, 1945 ( PUBLIC LAW 67, 79TH CONGRESS), MADE APPLICABLE TO THE NAVY DEPARTMENT AND TO THE NAVY BY THE ACT OF DECEMBER 28, 1945 ( PUBLIC LAW 277, 79TH CONGRESS), IS THE SECRETARY OF THE NAVY AUTHORIZED TO CONSIDER, ADJUST AND SETTLE CLAIMS PRESENTED BY THE HEIRS AND/OR PERSONAL REPRESENTATIVES OF DECEASED PERSONNEL OF THE NAVY DEPARTMENT OR OF THE NAVY, FOR DAMAGE TO OR LOSS, DESTRUCTION, CAPTURE, OR ABANDONMENT OF THEIR PERSONAL PROPERTY OCCURRING INCIDENT TO THEIR SERVICE, WHERE THE LOSS OR DESTRUCTION OCCURRED SUBSEQUENT TO OR SIMULTANEOUSLY WITH THE DEATH OF SUCH PERSONNEL; PROVIDING, OF COURSE, THAT ALL OTHER REQUIREMENTS OF THE SAID ACT ARE FULLY COMPLIED WITH?

AS POINTED OUT IN YOUR LETTER, SECTION 3 OF THE ACT OF OCTOBER 27, 1943, EXPRESSLY AUTHORIZED REIMBURSEMENT TO BE MADE TO ANY DEPENDENT RELATIVE, AS DETERMINED BY THE SECRETARY OF THE NAVY, IN THE EVENT OF THE OFFICER'S OR ENLISTED MAN'S DEATH, REGARDLESS OF WHETHER DEATH OCCURRED PRIOR OR SUBSEQUENT TO THE LOSS, DESTRUCTION, OR DAMAGE TO HIS PROPERTY. HOWEVER, THE ACT WAS EXPRESSLY REPEALED BY SECTION 4 OF THE SAID ACT OF DECEMBER 28, 1945. THE NECESSARY EFFECT OF SECTION 2 OF THE LATTER ACT, SUPRA, WAS TO AUTHORIZE THE NAVY DEPARTMENT TO CONSIDER, ASCERTAIN, DETERMINE, SETTLE, AND PAY CLAIMS OF NAVAL PERSONNEL AND CIVILIAN EMPLOYEES OF THE NAVY DEPARTMENT, INCLUDING CLAIMS NOT THERETOFORE SATISFIED, ARISING ON OR AFTER DECEMBER 7, 1939, FOR DAMAGE TO OR LOSS, DESTRUCTION, CAPTURE, ETC., OF PERSONAL PROPERTY, OCCURRING INCIDENT TO THEIR SERVICE, ON THE SAME BASIS AS IS AUTHORIZED UNDER THE ACT OF MAY 29, 1945, FOR MILITARY AND CIVILIAN PERSONNEL OF THE MILITARY ESTABLISHMENT. HENCE, UNDER THE SAID ACT OF DECEMBER 28, 1945, ALL CLAIMS OF NAVAL PERSONNEL FOR DAMAGE TO OR LOSS, DESTRUCTION, ETC., OF PERSONAL PROPERTY WHICH AROSE ON OR AFTER DECEMBER 7, 1939, AND WHICH HAVE NOT BEEN SETTLED UNDER PRIOR LAWS, ARE REQUIRED TO BE CONSIDERED AND SETTLED ON THE BASIS OF THE PROVISIONS OF THE ACT OF MAY 29, 1945, SUPRA. CONSEQUENTLY, SINCE THE CLAIM OF MRS. MORAN HAS NOT BEEN SETTLED OR PAID UNDER THE PRIOR LAW, IT IS FOR CONSIDERATION SOLELY ON THE BASIS OF THE PROVISIONS OF THE ACT OF MAY 29, 1945, AND THE REGULATIONS ISSUED PURSUANT THERETO BY VIRTUE OF SECTION 2 OF THE ACT OF DECEMBER 28, 1945.

IT WILL BE NOTED THAT THE SAID ACT OF MAY 29, 1945--- LIKE THE ACT OF OCTOBER 6, 1917, AS AMENDED, CONSIDERED IN 10 COMP. GEN. 525, SUPRA--- CONTAINS NO PROVISION, EXPRESS OR IMPLIED, AUTHORIZING REIMBURSEMENT TO BE MADE TO THE HEIRS, LEGAL REPRESENTATIVES, OR DEPENDENT RELATIVES OF DECEASED PERSONNEL IN CASES WHERE SUCH PERSONNEL DIE PRIOR TO THE LOSS OR DESTRUCTION OF THEIR PERSONAL PROPERTY. THE RIGHT TO REIMBURSEMENT UNDER THE SAID ACT OF MAY 29, 1945, IS A STATUTORY RIGHT INTENDED PRIMARILY FOR THE PERSONAL BENEFIT OF SERVICE PERSONNEL AND CIVILIAN EMPLOYEES OF THE MILITARY AND NAVAL ESTABLISHMENTS AS COMPENSATION FOR THE LOSS OR DAMAGE TO THEIR PERSONAL PROPERTY SUSTAINED INCIDENT TO THEIR SERVICE; AND, ORDINARILY, SUCH A PERSONAL RIGHT IS NOT REGARDED AS EXTENDING BEYOND THE LIFE OF THE BENEFICIARY, UNLESS THE STATUTE EXPRESSLY SO PROVIDES. HOWEVER, IN CASES UNDER PRIOR STATUTES WHERE THE BENEFICIARY DIED SUBSEQUENT TO THE LOSS OR DESTRUCTION OF HIS PROPERTY, BUT PRIOR TO THE DATE PAYMENT WAS EFFECTED, THE ACCOUNTING OFFICERS HAVE ISSUED SETTLEMENTS IN FAVOR OF THE HEIRS OR LEGAL REPRESENTATIVES IN ACCORDANCE WITH THE PROVISIONS OF THE STATUTES GOVERNING THE SETTLEMENTS OF ACCOUNTS OF DECEASED MILITARY AND NAVAL PERSONNEL. SUCH SETTLEMENTS HAVE ISSUED ON THE BASIS THAT, PRIOR TO HIS DEATH, THE DECEASED ACQUIRED A VESTED RIGHT TO REIMBURSEMENT WHICH PASSED TO HIS HEIRS OR LEGAL REPRESENTATIVES. COMP. DEC. 688; B 3766, JUNE 14, 1939; B-30407, JANUARY 21, 1943. BUT IN CASES WHERE DEATH OCCURRED PRIOR TO THE LOSS, DAMAGE, ETC., OR UNDER CIRCUMSTANCES WHERE IT IS NOT KNOWN WHETHER DEATH OCCURRED PRIOR, SUBSEQUENT TO, OR SIMULTANEOUSLY WITH THE LOSS, DAMAGE, ETC., THE ACCOUNTING OFFICERS HAVE REFUSED TO ISSUE SETTLEMENTS IN FAVOR OF THE HEIRS OR LEGAL REPRESENTATIVES, SINCE, IN SUCH CASES, THE DECEASED HAD ACQUIRED NO VESTED RIGHT, OR IT WAS NOT ESTABLISHED THAT HE HAD ACQUIRED A VESTED RIGHT, TO REIMBURSEMENT PRIOR TO HIS DEATH WHICH PASSED TO HIS HEIRS OR LEGAL REPRESENTATIVE. CF. OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, JULY 14, AND OCTOBER 15, 1945, TO THE SAME EFFECT. ALSO, SEE PARAGRAPH 4, ARMY REGULATIONS 25-100.

THERE APPEARS NO LEGAL BASIS FOR THE APPLICATION OF A DIFFERENT RULE UNDER THE PROVISIONS OF THE ACT OF MAY 29, 1945, HERE INVOLVED. WHILE SUCH STATUTE, LIKE THE ACT OF OCTOBER 6, 1917, BROADLY PROVIDES FOR THE CONSIDERATION, ADJUSTMENT, ETC., OF "ANY" SUCH CLAIM AGAINST THE UNITED STATES, IT IS "ANY" CLAIM "OF MILITARY PERSONNEL AND CIVILIAN EMPLOYEES" AND CLAIMS SUBMITTED BY HEIRS OR LEGAL REPRESENTATIVES OF DECEASED MILITARY PERSONNEL ARE NOT CLAIMS "OF" SUCH PERSONNEL UNLESS THEY ACCRUED TO SUCH PERSONNEL DURING THEIR LIVES. WHILE THE INTERVENING ACT OF OCTOBER 27, 1943, SPECIFICALLY AUTHORIZED REIMBURSEMENT TO ANY DEPENDENT RELATIVE, AS DETERMINED BY THE SECRETARY OF THE NAVY, WHETHER DEATH OCCURRED PRIOR OR SUBSEQUENT TO THE LOSS OF THE PROPERTY (SEE 24 COMP. GEN. 282), THAT STATUTE WAS REPEALED BY THE ACT OF DECEMBER 28, 1945, AND SUCH REPEALED PROVISIONS MAY NOT BE VIEWED AS INCORPORATED BY IMPLICATION IN THE ACT OF MAY 29, 1945, MADE APPLICABLE TO THE NAVY BY THE SAID ACT OF DECEMBER 28, 1945. AND WHILE IT MAY BE, AS STATED IN YOUR LETTER, THAT IT IS JUST AS REASONABLE TO PRESUME THAT DEATH OCCURRED SUBSEQUENT TO THE LOSS OR DAMAGE OF THE PROPERTY AS IT IS TO PRESUME THAT DEATH OCCURRED SIMULTANEOUSLY WITH, OR PRIOR TO, THE LOSS OR DAMAGE TO THE PROPERTY, THE FACT REMAINS THAT UNLESS IT BE SHOWN THAT THE INDIVIDUAL WAS ALIVE SUBSEQUENT TO THE LOSS OF HIS PROPERTY, IT WOULD NOT BE AFFIRMATIVELY ESTABLISHED THAT HE HAD ACQUIRED A VESTED RIGHT TO REIMBURSEMENT WHICH PASSED TO HIS HEIRS OR LEGAL REPRESENTATIVE, AND, HENCE, THERE WOULD BE NO AFFIRMATIVE BASIS FOR RECOGNIZING THEIR CLAIMS. IT FOLLOWS THAT, IN SUCH CASES, IN THE ABSENCE OF EVIDENCE ESTABLISHING THAT THE PROPERTY WAS LOST, DAMAGED, OR DESTROYED PRIOR TO THE INDIVIDUAL'S DEATH, THIS OFFICE WOULD NOT BE WARRANTED IN CONCLUDING THAT PAYMENT TO THE HEIRS OR LEGAL REPRESENTATIVE IS LEGALLY AUTHORIZED UNDER THE CURRENT STATUTORY PROVISIONS. ACCORDINGLY, THE TWO QUESTIONS PRESENTED ARE ANSWERED IN THE NEGATIVE.