B-84027, MAR 29, 1949

B-84027: Mar 29, 1949

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PRECIS-UNAVAILABLE HONORABLE CARL HINSHAW: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY. FOR MONEY WHICH HE STATES HE LOST WHEN HE WAS CAPTURED BY THE JAPANESE AT FORT DRUM. WAS FORCIBLY REMOVED FROM THE OFFICER'S PERSON BY A JAPANESE SOLDIER. YOU REQUEST ADVICE AS TO WHETHER THERE IS ANY WAY IN WHICH THIS CLAIM MAY NOW BE ADMINISTRATIVELY CONSIDERED. WAS REPEALED AND SUPERSEDED BY THE MILITARY PERSONNEL CLAIMS ACT OF 1945. ARE HEREBY AUTHORIZED TO CONSIDER. WHEN SUCH CLAIM IS SUBSTANTIATED. 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. BE PRESENTED WITHIN ONE YEAR AFTER PEACE IS ESTABLISHED.

B-84027, MAR 29, 1949

PRECIS-UNAVAILABLE

HONORABLE CARL HINSHAW:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY, 1949, ENCLOSING A FILE OF CORRESPONDENCE WITH RESPECT TO THE CLAIM OF CAPTAIN CHARLES W. AUDET, UNITED STATES ARMY, FOR MONEY WHICH HE STATES HE LOST WHEN HE WAS CAPTURED BY THE JAPANESE AT FORT DRUM, PHILIPPINE ISLANDS, UPON THE SURRENDER OF THE HARBOR DEFENSES OF MANILA AND SUBIC BAY, MAY 6, 1942. THE OFFICER STATES THAT THE MONEY, ALONG WITH CERTAIN OF HIS PAPERS, WAS FORCIBLY REMOVED FROM THE OFFICER'S PERSON BY A JAPANESE SOLDIER.

CAPTAIN AUDET STATES IN HIS LETTER OF DECEMBER 28, 1948, TO YOU, REGARDING THE MATTER, THAT FOLLOWING HIS RETURN TO THE UNITED STATES IN SEPTEMBER 1945, HE FILED A CLAIM FOR LOSS OF HIS PERSONAL EFFECTS BUT THAT THE CLAIMS OFFICER AT HIS STATION, BIRMINGHAM GENERAL HOSPITAL, VAN NUYS, CALIFORNIA, WOULD NOT PERMIT HIM TO INCLUDE A CLAIM FOR LOSS OF CASH. EXPRESSED THE BELIEF THAT HE SHOULD BE COMPENSATED FOR SUCH LOSS AND SUBMITTED A NEWSPAPER CLIPPING TO THE EFFECT THAT THE CONGRESS HAD ENACTED A BILL FOR THE RELIEF OF A FORMER MEMBER OF THE ARMY WHO HAD LOST THE EVIDENCE NECESSARY TO ESTABLISH HIS CLAIM AGAINST THE UNITED STATES FOR REIMBURSEMENT OF HIS PERSONAL FUNDS.

BY LETTER DATED JANUARY 27, 1949, TO YOU, THE LEGISLATIVE AND LIAISON OFFICER, DEPARTMENT OF THE ARMY, EXPRESSED THE OPINION THAT SINCE CAPTAIN AUDET'S CLAIM FOR LOST PROPERTY HAD BEEN SETTLED, IT MIGHT NOT NOW BE REOPENED OR CONSIDERED, CITING A DECISION OF THIS OFFICE DATED MAY 21, 1941, 20 COMP.GEN. 797. YOU REQUEST ADVICE AS TO WHETHER THERE IS ANY WAY IN WHICH THIS CLAIM MAY NOW BE ADMINISTRATIVELY CONSIDERED.

THE SAID DECISION OF MAY 21, 1941, CONSIDERED THE EFFECT OF CERTAIN PROVISIONS OF THE ACT OF MARCH 4, 1921, 41 STAT. 1436, RELATING TO APPROVAL OR DISAPPROVAL BY THE SECRETARY OF WAR OF CLAIMS OF THE NATURE HERE INVOLVED AND DID NOT DISCUSS THE PROPRIETY OF REOPENING OR CONSIDERING SUCH A CLAIM ONCE IT HAD BEEN SETTLED. BUT, SECTION 4 OF THE SAID ACT OF MARCH 4, 1921, QUOTED IN THE DECISION, PROVIDED IN PART THAT THE DETERMINATION BY THE SECRETARY OF WAR UPON SUCH A CLAIM, SHOULD CONSTITUTE "A FINAL DETERMINATION OF ANY CLAIM COGNIZABLE UNDER THIS CHAPTER, AND SUCH CLAIM SHALL NOT THEREAFTER BE REOPENED OR CONSIDERED." HOWEVER, THE ACT OF MARCH 4, 1921, WAS REPEALED AND SUPERSEDED BY THE MILITARY PERSONNEL CLAIMS ACT OF 1945, APPROVED MAY 29, 1945, 59 STAT. 225, WHICH PROVIDES, IN 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, OR ABOUT DECEMBER INCLUDING CLAIMS NOT HERETOFORE SATISFIED ARISING ON OR ABOUT 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 BE 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 ***. 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, OR 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 PROVISION OF LAW TO THE CONTRARY"

SINCE CAPTAIN AUDET'S CLAIM AROSE AFTER DECEMBER 7, 1939, AND HAD NOT BEEN SATISFIED PRIOR TO MAY 29, 1945, IT WOULD APPEAR TO BE FOR CONSIDERATION UNDER THE PROVISIONS OF THE ABOVE-QUOTED STATUTE RATHER THAN THE ACT OF MARCH 4, 1921.

IT IS TO BE NOTED THAT THE MILITARY PERSONNEL CLAIMS ACT OF 1945, SUPRA, VESTS IN THE SECRETARY OF WAR, OR HIS DESIGNATED REPRESENTATIVE, THE AUTHORITY TO CONSIDER, ASCERTAIN, ADJUST, DETERMINE, SETTLE AND PAY CLAIMS FOR PROPERTY OF MEMBERS OF THE ARMY WHICH IS DAMAGED, LOST, DESTROYED, CAPTURED OR ABANDONED IN THE SERVICE AND DECLARES THAT ANY SETTLEMENT OF SUCH CLAIMS SHALL BE FINAL AND CONCLUSIVE FOR ALL PURPOSES. HENCE, THE QUESTION OF WHETHER CAPTAIN AUDET'S CLAIM MAY NOW BE CONSIDERED IS A MATTER ENTIRELY WITHIN THE DISCRETION OF THE DEPARTMENT OF THE ARMY. UNDER THE APPLICABLE REGULATIONS, ARMY REGULATIONS 25-100, MONEY IS DEFINED AS PROPERTY FOR PURPOSES OF THE PRESENT STATUTE, AND I FIND NOTHING EITHER IN SUCH STATUTE OR IN THE REGULATIONS TO THE EFFECT THAT THE SETTLEMENT OF A PARTICULAR CLAIM THEREUNDER PRECLUDES CONSIDERATION OF ANOTHER CLAIM BY THE SAME INDIVIDUAL FOR PROPERTY WHICH HAD NOT BEEN INCLUDED IN THE SETTLED CLAIM.

REGARDING THE CASE OF SERGEANT ROBERT F. PARKS, MENTIONED IN THE REFERRED -TO NEWSPAPER CLIPPING, HIS CLAIM WAS NOT FOR LOST PROPERTY UNDER EITHER THE ACT OF MARCH 4, 1921, OR THE ACT OF MAY 29, 1945, BUT WAS FOR MONEY WHICH HE HAD TURNED OVER THE ARMY TO BUY FOOD WHILE HE WAS A PRISONER OF WAR. THE LOSS OF THE RECEIPT, COUPLED WITH THE ABSENCE OF ANY OFFICIAL RECORD OF THE TRANSACTION AND THE LACK OF AN APPROPRIATION FROM WHICH PAYMENT OF THE CLAIM COULD BE MADE IN ANY EVENT, PRECLUDED FAVORABLE CONSIDERATION OF HIS CLAIM BY THIS OFFICE.

I TRUST THE FOREGOING WILL SERVE THE PURPOSES OF YOUR INQUIRY. THE ENCLOSURES WHICH ACCOMPANIED YOUR LETTER OF FEBRUARY 24, 1949, ARE RETURNED HEREWITH, AS REQUESTED.