B-167042, JUN. 25, 1969

B-167042, JUN. 25, 1969

TO MR. SECRETARY:

REFERENCE IS MADE TO THE LETTER OF COLONEL WILLIAM R. ARNOLD, OFFICE OF THE JUDGE ADVOCATE GENERAL (AFJALD HAF 69/10317/T), DATED MAY 1, 1969, WHICH TRANSMITTED TO THIS OFFICE, PURSUANT TO PARAGRAPH 18-11, AFM 112-1, THE CLAIM OF TSGT. CHARLES H. TILLERY FOR OUR CONSIDERATION AS A MERITORIOUS CLAIM.

THE ACT OF APRIL 10, 1928, CH. 334, 45 STAT. 413 (THE SO-CALLED MERITORIOUS CLAIMS ACT), AUTHORIZES THE COMPTROLLER GENERAL OF THE UNITED STATES TO REPORT TO THE CONGRESS WITH HIS RECOMMENDATIONS THEREON, CLAIMS, WHICH IN HIS JUDGMENT, CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF CONSIDERATION OF THE CONGRESS. THE PROVISIONS OF THE ACT APPLY ONLY TO SUCH CASES AS MAY BE PRESENTED TO THIS OFFICE THAT FROM THE STANDPOINT OF LEGAL LIABILITY ON THE PART OF THE GOVERNMENT OR EQUITIES IN FAVOR OF THE CLAIMANTARE DESERVING OF SPECIAL CONSIDERATION AND WHICH THIS OFFICE COULD CONSIDER WITH A VIEW OF MAKING ALLOWANCE THEREON BUT FOR THE LACK OF ANY AUTHORIZED PREVIOUSLY ENACTED STATUTORY LAW OR APPROPRIATIONS MADE IN PURSUANCE OF LAWS AUTHORIZING THE PAYMENT OF SUCH CLAIMS.

TSGT. TILLERY ALLEGES THAT ON MAY 18, 1968, WHILE AT AN ARMED FORCES DAY DISPLAY, HE TOOK 8MM FILMS OF AN F-111 CRASH AT HOLLOMAN AIR FORCE BASE, NEW MEXICO. LATER THAT DAY HE DECIDED THE FILMS MIGHT BE VALUABLE TO THE NEWS MEDIA AND CALLED THE HOLLOMAN COMMAND POST TO OBTAIN PERMISSION TO RELEASE THE FILMS. HE WAS INSTRUCTED TO BRING THE FILMS TO THE COMMAND POST WHERE THEY COULD BE REVIEWED FOR CLASSIFIED INFORMATION OR DATA CONCERNING THE CRASH. AIR FORCE AUTHORITIES HAD THE FILMS DEVELOPED COMMERCIALLY, DETERMINED THEY COULD BE RELEASED AND THAT THEY WERE OF NO VALUE IN THE ACCIDENT INVESTIGATION. ACCORDINGLY, THE FILMS WERE RETURNED UNDAMAGED TO THE CLAIMANT APPROXIMATELY TWO WEEKS LATER. THE CLAIMANT CLAIMS $200 DAMAGES; ONE HUNDRED DOLLARS FOR THE LOSS OF A POSSIBLE SALE TO THE NEWS MEDIA AND ONE HUNDRED DOLLARS FOR THE AIR FORCE'S USE OF THE FILM.

WHILE THE AIR FORCE ADMITTEDLY REVIEWED THE FILM FOR CLASSIFIED INFORMATION OR DATA CONCERNING THE CRASH, AND IN THIS SENSE "USED" IT, THE RECORD DOES NOT INDICATE THAT TSGT. TILLERY TURNED THE FILM OVER TO THE HOLLOMAN AUTHORITIES OTHER THAN VOLUNTARILY AND WITHOUT THOUGHT OF RECEIVING COMPENSATION FROM THE AIR FORCE. UNDER SUCH CIRCUMSTANCES, AND AS THE FILM WAS PROMPTLY PROCESSED AT NO COST TO THE CLAIMANT, USED FOR THE PURPOSES REQUIRED, AND RETURNED UNDAMAGED WITHIN A REASONABLE TIME, IT DOES NOT APPEAR THAT THE CLAIMANT HAS SUFFERED ANY COMPENSABLE DAMAGE FOR WHICH THE AIR FORCE IS LIABLE.

TSGT. TILLERY'S SECOND CLAIM ARISING FROM HIS ALLEGED INABILITY TO SELL THE FILM TO THE NEWS MEDIA BECAUSE THE SAME WAS IN THE HANDS OF THE AIR FORCE ALSO LACKS MERIT. HAVING VOLUNTARILY TURNED THE FILM OVER TO THE AIR FORCE FOR PROCESSING AND REVIEW, THE CLAIMANT IS IN NO POSITION TO CLAIM THAT ITS POSSESSION BY THE AIR FORCE PREVENTED ITS SALE TO A THIRD PARTY. MORE IMPORTANTLY, THERE IS NO EVIDENCE IN THE RECORD WHICH SHOWS THAT TSGT. TILLERY HAD, IN FACT, A BUYER WHO WAS READY, WILLING AND ABLE TO BUY THE FILM OR THAT A SALE OF THE FILM OR THE FILM RIGHTS TO SUCH A BUYER WAS PREVENTED BY THE AIR FORCE. ANY DAMAGE THAT TSGT. TILLERY MAY HAVE SUFFERED IN THIS CONNECTION IS, THEREFORE, WHOLLY CONJECTURAL AND AS SUCH PROVIDES NO BASIS FOR LIABILITY, OR THE AWARDING OF DAMAGES.

FEELING AS WE DO THAT THE PRESENTED CLAIMS ARE WITHOUT MERIT, NO ACTION WILL BE TAKEN, UNDER 31 U.S.C. 236, TO REFER THE SAME TO THE CONGRESS.