B-142306, JULY 20, 1960, 40 COMP. GEN. 31

B-142306, JULY 20, 1960, 40 COMP. GEN. 31

MILITARY PERSONNEL - PERSONAL PROPERTY LOSS AND DAMAGE CLAIMS - INACTIVE TRAINING DUTY IN NATIONAL GUARD INACTIVE TRAINING DUTY PERFORMED BY MEMBERS OF THE ARMY NATIONAL GUARD AND THE AIR FORCE NATIONAL GUARD--- WHICH ARE RESERVE COMPONENTS OF THE ARMED FORCES OF THE UNITED STATES--- COMES WITHIN THE TERM "SERVICE" IN 10 U.S.C. 2732, WHICH AUTHORIZES THE PAYMENT OF CLAIMS OF A MEMBER OF THE ARMY, NAVY OR AIR FORCE FOR PERSONNEL PROPERTY LOST OR DAMAGED "INCIDENT TO HIS SERVICES; " THEREFORE, CLAIMS OF MEMBERS OF THE AIR NATIONAL GUARD FOR PERSONAL PROPERTY LOST OR DAMAGED WHILE ON TRAINING OR OTHER DUTY UNDER 32 U.S.C. 316, 502, 505 ARE FOR CONSIDERATION UNDER 10 U.S.C. 2732.

TO THE SECRETARY OF THE AIR FORCE, JULY 20, 1960:

REFERENCE IS MADE TO LETTER OF MARCH 15, 1960, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE (1FINANCIAL MANAGEMENT), SUBMITTING FOR OUR DECISION THE QUESTION OF WHETHER CLAIMS OF MEMBERS OF THE AIR NATIONAL GUARD OF THE UNITED STATES, FOR LOSS OR DAMAGE OF PERSONAL PROPERTY DURING PERIODS OF INACTIVE-DUTY TRAINING, MAY BE CONSIDERED WITHIN THE PURVIEW OF SECTION 2732, TITLE 10, UNITED STATES CODE (DERIVED FROM THE MILITARY PERSONNEL CLAIMS ACT OF 1945, 58 STAT. 225, AS AMENDED).

THE ASSISTANT SECRETARY STATES THAT THE DEPARTMENT OF THE ARMY IS OF THE VIEW THAT MEMBERS OF THE ARMY NATIONAL GUARD OF THE UNITED STATES AND THE AIR NATIONAL GUARD OF THE UNITED STATES ARE PROPER CLAIMANTS UNDER SECTION 2732 WHEN THEIR PERSONAL PROPERTY IS LOST OR DAMAGED WHILE PERFORMING AUTHORIZED TRAINING OR OTHER DUTY UNDER SECTIONS 316, 501-505 OF TITLE 32, UNITED STATES CODE, BECAUSE OF THE PROVISIONS OF SECTIONS 277, 2686 AND 8686 OF TITLE 10, UNITED STATES CODE. IT IS ALSO STATED THAT THE DEPARTMENT OF THE ARMY AND THE NAVY CONSIDER THE INACTIVE-DUTY TRAINING CLAIMS OF THEIR RESERVISTS AS PAYABLE UNDER SECTION 2732. THE AIR FORCE, HOWEVER, IS OF THE VIEW THAT MEMBERS OF THE AIR NATIONAL GUARD OF THE UNITED STATES AND OTHER RESERVE COMPONENTS ARE NOT PROPER CLAIMANTS UNDER SECTION 2732 UNLESS THEY ARE IN ACTIVE FEDERAL SERVICE WHEN THE DAMAGE OR LOSS OCCURRED.

SECTION 2732 OF TITLE 10, U.S.C. PROVIDES:

(A) UNDER SUCH REGULATIONS AS THE SECRETARY OF A MILITARY DEPARTMENT MAY PRESCRIBE, HE OR ANY OFFICER DESIGNATED BY HIM MAY SETTLE AND PAY A CLAIM AGAINST THE UNITED STATES FOR NOT MORE THAN $6,500 BY A CIVILIAN EMPLOYEE OF THAT DEPARTMENT, OR A MEMBER OF THE ARMY, NAVY, AIR FORCE, OR MARINE CORPS, AS THE CASE MAY BE, FOR DAMAGE TO, OR LOSS OF, PERSONAL PROPERTY INCIDENTAL TO HIS SERVICE. IF THE CLAIM IS SUBSTANTIATED AND THE POSSESSION OF THAT PROPERTY IS DETERMINED TO BE REASONABLE, USEFUL, OR PROPER UNDER THE CIRCUMSTANCES, THE CLAIM MAY BE PAID OR THE PROPERTY REPLACED IN KIND. (ITALICS SUPPLIED.)

THE ARMY NATIONAL GUARD OF THE UNITED STATES AND THE AIR NATIONAL GUARD OF THE UNITED STATES ARE RESERVE COMPONENTS OF THE ARMED FORCES OF THE UNITED STATES. 10 U.S.C. 261. THE ARMY NATIONAL GUARD OF THE UNITED STATES IS A RESERVE COMPONENT OF THE ARMY AND ALL OF ITS MEMBERS ARE MEMBERS OF THE ARMY NATIONAL GUARD. 10 U.S.C. 101 (11). SIMILARLY, THE AIR NATIONAL GUARD OF THE UNITED STATES IS A RESERVE COMPONENT OF THE AIR FORCE AND ALL OF ITS MEMBERS ARE MEMBERS OF THE AIR NATIONAL GUARD. U.S.C. 101 (13). SEE ALSO, 10 U.S.C. 3062 (C), 8062 (D).

WHILE MEMBERS OF THE ARMY NATIONAL GUARD OF THE UNITED STATES AND THE AIR NATIONAL GUARD OF THE UNITED STATES HAVE A DUAL STATUS, IN THAT THEY ARE MEMBERS OF A STATE NATIONAL GUARD ORGANIZATION AND MEMBERS OF A RESERVE COMPONENT OF THE ARMED FORCES OF THE UNITED STATES, INACTIVE DUTY TRAINING PERFORMED BY THEM IS REGARDED AS FEDERAL SERVICE IN THEIR RESERVE STATUS AS MEMBERS OF THE ARMY OR AIR FORCE. SEE 10 U.S.C. 3686 (3) AND 8686 (3).

SECTION 2732 AUTHORIZES PAYMENT OF A CLAIM OF A MEMBER OF THE ARMY, NAVY, AIR FORCE OR MARINE CORPS FOR DAMAGE TO, OR LOSS OF PERSONAL PROPERTY "INCIDENT TO HIS SERVICE.' SINCE THE INACTIVE DUTY TRAINING OF A MEMBER OF THE AIR NATIONAL GUARD OF THE UNITED STATES IS REGARDED AS FEDERAL SERVICE, IT IS ONLY NECESSARY TO DECIDE WHETHER THE "SERVICE" MENTIONED IN THE STATUTE INCLUDES SUCH FEDERAL SERVICE. IN THE CASE OF FIDELITY PHOENIX FIRE INSURANCE COMPANY V. UNITED STATES, 111 F.SUPP. 899, IT WAS STATED THAT THE TERM "INCIDENT TO THEIR SERVICE" WAS NOT EMPLOYED IN THE STATUTE IN ANY RESTRICTIVE SENSE TO REQUIRE THAT COMPENSABLE LOSS OCCUR DURING THE PERFORMANCE OF MILITARY DUTY OR ON A MILITARY BASE AND THAT IT "WAS MERELY USED IN A GENERAL SENSE TO INDICATE THAT THE LOSS MUST BEAR SOME SUBSTANTIAL RELATION TO THE CLAIMANT'S MILITARY SERVICE.' COMPARE O- BRIEN V. UNITED STATES, 192 F.2D 948, HOLDING THAT A FATAL INJURY TO THE PERSON THERE INVOLVED, WHICH APPARENTLY OCCURRED DURING A PERIOD OF INACTIVE DUTY TRAINING, WAS SUFFERED WHILE ACTING IN LINE OF DUTY AS A MEMBER OF THE UNITED STATES NAVAL RESERVE AND, HENCE, WAS INCIDENT TO HIS MILITARY SERVICE AND THUS BARRED RECOVERY UNDER THE FEDERAL TORT CLAIMS ACT. THE TERM "SERVICE" AS USED IN 10 U.S.C. 2732, IS BROAD ENOUGH TO INCLUDE INACTIVE DUTY TRAINING AND NOTHING HAS BEEN FOUND IN THE LEGISLATIVE HISTORY OF THE STATUTORY PROVISIONS INVOLVED WHICH REQUIRES A CONCLUSION TO THE CONTRARY. THE APPARENT INTENT OF THE CONGRESS WAS TO REIMBURSE MEMBERS OF THE ARMED FORCES (A MEMBER OF THE AIR NATIONAL GUARD OF THE UNITED STATES IS A MEMBER OF THE AIR FORCE, 10 U.S.C. (D) ( FOR DAMAGE TO, OR LOSS OF, PERSONAL PROPERTY WHICH IS INCIDENT TO THE MILITARY DUTY THEY ARE REQUIRED TO PERFORM AND WE FIND NO SUBSTANTIAL BASIS FOR A CONCLUSION THAT SUCH DUTY DOES NOT INCLUDE INACTIVE-DUTY TRAINING.

ACCORDINGLY, YOU ARE ADVISED THAT PERSONAL PROPERTY CLAIMS OF MEMBERS OF THE AIR NATIONAL GUARD OF THE UNITED STATES, ARISING INCIDENT TO AUTHORIZED TRAINING OR OTHER DUTY UNDER 32 U.S.C. 316, 502 505, ARE PROPERLY FOR CONSIDERATION UNDER 10 U.S.C. 2732.