B-204807 L/M, NOV 17, 1981

B-204807 L/M, NOV 17, 1981

DIGEST: WHILE IN THE ARMY CLAIMANT LOST PERSONAL PROPERTY IN THE TEXAS CITY HURRICANE OF 1915. CLAIM WAS ORIGINALLY DENIED BY THE COMPTROLLER OF THE TREASURY BASED ON ACT OF MARCH 3, 1885, CH. 335, 23 STAT. 350 (1885) (REPEALED IN 1945), WHICH LIMITED RECOVERY TO THOSE CLAIMANTS WHO LOST PERSONAL PROPERTY AS A CONSEQUENCE OF THEIR EFFORTS TO SAVE GOVERNMENT PROPERTY. CLAIM CANNOT BE RECONSIDERED BECAUSE 1885 STATUTE UNDER WHICH RELIEF WAS SOUGHT WAS REPEALED AND BECAUSE PROVISION IN 1885 STATUTE MADE ALL SUCH CLAIMS FINAL AND NOT SUBJECT TO RECONSIDERATION.

PAUL SIMON, HOUSE OF REPRESENTATIVES:

THIS IS IN ANSWER TO YOUR CORRESPONDENCE TO THE DEPARTMENT OF THE ARMY ON BEHALF OF MR. CHARLES A. MCLAIN REGARDING HIS CLAIM FOR LOSS OF PERSONAL PROPERTY IN THE TEXAS CITY HURRICANE OF AUGUST 1915 WHILE HE WAS A MEMBER OF THE ARMY. THE ARMY FORWARDED YOUR REQUEST TO US AS A MATTER WITHIN OUR JURISDICTION.

ON JUNE 15, 1917, THE WAR DEPARTMENT LISTED SOME 8,243 ENLISTED PERSONNEL AND COMMISSIONED OFFICERS WHOSE PROPERTY WAS LOST IN THE TEXAS HURRICANE. MR. MCLAIN WAS APPARENTLY ONE OF THOSE LISTED WHO APPEALED THE INITIAL DENIAL OF HIS CLAIM TO THE COMPTROLLER OF THE TREASURY. HIS APPEAL WAS DENIED BY THAT OFFICE. APPEAL NO. 30021, SEPTEMBER 15, 1919, 90 MS COMP.DEC. 1467 SEVERAL SIMILAR SUBSEQUENT APPEALS WERE REVIEWED BY THE GENERAL ACCOUNTING OFFICE UNDER THE BUDGET AND ACCOUNTING ACT OF 1921, SECTION 304, 31 U.S.C. SEC. 44 (1976), WHICH TRANSFERRED ALL POWER AND DUTIES PREVIOUSLY HELD BY THE COMPTROLLER OF THE TREASURY TO THE GENERAL ACCOUNTING OFFICE.

UPON REVIEW OF MR. MCLAIN'S CASE IT WAS CONCLUDED THAT UNDER APPLICABLE LAW THERE WAS NO AUTHORITY FOR US TO ALLOW HIS CLAIM.

THE LAW IN EFFECT AT THE TIME MR. MCLAIN'S CLAIM AROSE, WHICH PROVIDED AUTHORITY FOR PAYMENT OF CLAIMS FOR MILITARY MEMBERS' LOSS OF PERSONAL PROPERTY, WAS THE ACT OF MARCH 3, 1885, CH. 335, 23 STAT. 350. RELIEF UNDER THIS STATUTE WAS NARROW BECAUSE THE STATUTE WAS BASED ON THE PREMISE THAT THE GOVERNMENT WAS NOT AN INSURER. IN ORDER TO QUALIFY FOR REIMBURSEMENT UNDER ITS PROVISIONS, IT WAS NECESSARY FOR AN INDIVIDUAL TO HAVE BEEN IN A POSITION WHERE HE HAD TO ELECT BETWEEN SAVING HIS OWN PROPERTY, AND GIVING HIS ATTENTION TO THE SAVING OF GOVERNMENT PROPERTY IN DANGER AT THE SAME TIME AND UNDER SIMILAR CIRCUMSTANCES.

AT THE TIME THE HURRICANE STRUCK, MR. MCLAIN WAS ON A MISSION WITH THE 26TH INFANTRY REGIMENT'S CAMP WHERE HIS PERSONAL PROPERTY WAS LOST. PROPERTY WAS LOST. HE WAS THUS NOT IN A POSITION WHERE HE HAD TO ELECT BETWEEN SAVING HIS OWN PERSONAL PROPERTY AND GIVING HIS ATTENTION TO THE SAVING OF GOVERNMENT PROPERTY. HIS APPEAL WAS THEREFORE DENIED AS HIS CLAIM DID NOT MEET THAT REQUIREMENT OF THE LAW. THAT DECISION IS CONSISTENT WITH THE INTERPRETATION OF THE 1885 STATUTE IN SIMILAR CASES. MR. MCLAIN'S CLAIM IS, IN ALL ESSENTIAL RESPECTS, IDENTICAL WITH THE CLAIM OF COLONEL J. A. GASTON, APPEAL NO. 29545, JULY 8, 1919, 90 MS COMP.DEC. 146 WHO WAS DENIED RELIEF BECAUSE HE WAS ON LEAVE AWAY FROM CAMP AT THE TIME THE HURRICANE STRUCK. EVEN MORE ON POINT ARE THE DENIALS OF THE CLAIMS OF CONNER M. BREEDLOVE, A 10356, JULY 13, 1945, AND JERRY ELLISON, REVIEW NO. 1960, JUNE 3, 1922 WHO, LIKE MR. MCLAIN, WERE MEMBERS OF THE 26TH INFANTRY REGIMENT IN TEXAS. THE FACT THAT NONE OF THESE CLAIMANTS WAS IN A POSITION TO ELECT BETWEEN SAVING THEIR OWN AND GOVERNMENT PROPERTY WAS HELD TO BE IRRELEVANT. THE PROVISIONS OF THE STATUTE WERE STRICTLY FOLLOWED.

THE 1885 STATUTE WAS REPEALED BY THE MILITARY PERSONNEL CLAIMS ACT OF 1945, CH. 135, 59 STAT. 225 (1945). EVEN IF IT HAD NOT BEEN REPEALED WE COULD NOT CONSIDER THIS CASE BECAUSE THE 1885 STATUTE CONTAINED A PROVISION THAT ANY CLAIM WHICH WAS PRESENTED AND ACTED UPON UNDER THE AUTHORITY OF THAT ACT, "SHALL BE HELD AS FINALLY DETERMINED, AND SHALL NEVER THEREAFTER BE REOPENED AND RECONSIDERED." THAT PROVISION WAS UPHELD BY THE UNITED STATES SUPREME COURT IN UNITED STATES V. BABCOCK, 250 U.S. 328, 331 (1919), WHICH INVOLVED A LIEUTENANT WHO ALSO LOST PERSONAL PROPERTY IN THE TEXAS CITY HURRICANE.

THE CURRENT STATUTE COVERING SUCH CLAIMS, 31 U.S.C. SECS. 240-243 (1976), DOES GIVE THE HEADS OF MILITARY DEPARTMENTS DISCRETION TO SETTLE CLAIMS BY MEMBERS OF THE UNIFORMED SERVICES. HOWEVER, IT ALSO CONTAINS A SPECIFIC PROVISION THAT MAKES IT INAPPLICABLE TO CLAIMS SETTLED PRIOR TO AUGUST 31, 1964. 31 U.S.C. SEC. 241(A)(1).

CONCERNING MR. MCLAIN'S STATEMENT THAT HE RECENTLY READ AN ARTICLE WHICH SAID THAT "THE GOVERNMENT WAS PREPARED TO PAY ANY SUCH CLAIMS WITH INTEREST IF REINACTED," WE ARE AWARE OF EFFORTS WHICH HAVE BEEN MADE TO ENACT PUBLIC AND PRIVATE LAWS TO COMPENSATE THOSE WHO LOST PROPERTY IN THE HURRICANE. THE ONLY SUCCESSFUL EFFORT WE ARE AWARE OF WAS AN ACT FOR THE RELIEF OF DENNIS F. GUTHRIE, WHICH APPLIED ONLY TO MR. GUTHRIE. ACT OF AUGUST 31, 1954, PRIV.L. NO. 83-916, 68 STAT. A250 (1954).

WE HOPE THAT THIS INFORMATION IS RESPONSIVE TO YOUR INQUIRY.