B-177053, FEB 5, 1973, 52 COMP GEN 487

B-177053, FEB 5, 1973, 52 COMP GEN 487

UNIFORMS - MILITARY PERSONNEL - DAMAGE, LOSS, ETC., OF UNIFORMS - DECEASED PERSONNEL THE VALUE OF MILITARY CLOTHING LOST AT THE SAME TIME A MEMBER OF THE UNIFORMED SERVICES LOST HIS LIFE WHEN HIS HOUSETRAILER WAS DESTROYED IN A FLOOD MAY NOT BE PAID TO THE HEIRS OR LEGAL REPRESENTATIVES OF THE MEMBER SINCE 37 U.S.C. 418 AND IMPLEMENTING REGULATIONS PRESCRIBE THAT A CLAIM FOR THE LOSS, DAMAGE, OR DESTRUCTION OF PERSONAL CLOTHING IS A PERSONAL RIGHT AND ON THE BASIS OF THE RATIONALE IN 26 COMP. GEN. 613, THE RIGHT DOES NOT EXTEND BEYOND THE LIFE OF THE BENEFICIARY. ALTHOUGH THE CLAIM FOR THE CLOTHING IS COGNIZABLE UNDER BOTH 31 U.S.C. 241 AND 37 U.S.C. 418, THE JURISDICTION OF CLAIMS UNDER 31 U.S.C. 241 IS VESTED IN THE APPROPRIATE SECRETARY AND LIMITED TO LOSSES OCCURRING IN GOVERNMENT- ASSIGNED QUARTERS, EVEN THOUGH CLAIM MAY BE MADE BY A SURVIVOR, AND UNDER 37 U.S.C. 418, WHICH RELATES TO CLOTHING FURNISHED IN KIND OR A MONETARY LOSS, THE CLAIM FOR A LOSS IS PERSONAL TO THE MEMBER SUSTAINING THE LOSS.

TO SECOND LIEUTENANT L. R. MOORE, DEPARTMENT OF THE AIR FORCE, FEBRUARY 5, 1973:

FURTHER REFERENCE IS MADE TO YOUR LETTED DATED AUGUST 7, 1972, RECEIVED HERE SEPTEMBER 19, 1972, IN WHICH YOU REQUEST AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT ON A VOUCHER IN THE AMOUNT OF $214.34 REPRESENTING THE VALUE OF LOST CLOTHING OF A DECEASED MEMBER. YOUR SUBMISSION HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-1169 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN YOUR LETTER YOU INDICATE THAT A CLAIM FOR MILITARY CLOTHING LOST DURING THE FLOOD AT RAPID CITY, SOUTH DAKOTA, JUNE 10, 1972, HAS BEEN PRESENTED BY A SUMMARY COURTS OFFICER ON BEHALF OF SERGEANT BRAND T. TOWNER, USAF, WHO DIED ON JUNE 10, 1972.

ENCLOSED WITH YOUR REQUEST IS A STATEMENT BY THE DECEASED MEMBER'S WIDOW, MRS. SHERYLYN J. TOWNER, AS TO WHAT TRANSPIRED IN THE EARLY MORNING HOURS ON JUNE 10, 1972. MRS. TOWNER INDICATES THAT SHE AND HER HUSBAND, WHO WAS STATIONED AT ELLSWORTH AIR FORCE BASE, SOUTH DAKOTA, RESIDED IN A RENTAL TRAILER IN A PRIVATE TRAILER COURT, AND THAT HIS MILITARY CLOTHING WAS KEPT THERE. AS A RESULT OF THE FLOOD, THE TRAILER WAS STRUCK BY ANOTHER TRAILER WHICH WAS FLOATING AND THE TRAILER THEY LIVED IN SUBSEQUENTLY BEGAN FLOATING IN THE WATER AND STRUCK A BRIDGE. SHE STATES THAT HER HUSBAND HAD BEEN STANDING IN THE DOOR OF THE TRAILER. WHEN THE TRAILER HIT THE BRIDGE THE TOP OF THE TRAILER WAS TORN OFF AND SHE WAS THROWN INTO THE WATER. SHE SAYS THAT SHE NEVER SAW HER HUSBAND ALIVE AGAIN AFTER THE TRAILER STRUCK THE BRIDGE. IT IS INDICATED THAT HIS BODY WAS LATER RECOVERED AND IDENTIFIED BY AIR FORCE AUTHORITIES.

UNDER THE PROVISIONS OF AIR FORCE MANUAL 67-1, VOLUME 1, CHAPTER 2, PARAGRAPH 75, CLAIMS MAY BE FILED FOR THE REPLACEMENT OF LOST OR DAMAGED CLOTHING. UNDER SUBPARAGRAPH A(5) OF THE MANUAL, PROVISION IS MADE FOR LOSSES RESULTING FROM AN ACT OF GOD. IT IS ALSO PROVIDED IN THAT SUBPARAGRAPH THAT EACH CLAIM WILL BE BASED ON ITS OWN MERIT AS REVEALED BY INVESTIGATION AND THAT THE BASE COMMANDER WILL RENDER THE FINAL DECISION ON CLAIMS RESULTING FROM ACTS OF GOD. YOU INDICATE THAT THE CLAIM HAS BEEN APPROVED BY THE DESIGNEE OF THE BASE COMMANDER.

UNDER THE PROVISIONS OF SUBPARAGRAPH 75B, AFM 67-1, CLAIMS MUST BE COMPLETE AND FULLY SUBSTANTIATED BY THE AIRMAN, WHO MUST BE ON ACTIVE DUTY IN THE AIR FORCE OR A RESERVE AIRMAN ON PAY STATUS DUTY. IT IS ALSO PROVIDED THAT THE CLAIMANT'S STATUS (TEMPORARY DUTY, TRAVEL, LEAVE OR OFF DUTY, ETC.) WILL NOT BE THE DETERMINING FACTOR IN THE CONSIDERATION OF CLAIMS.

DOUBT AS TO THE VALIDITY OF THE CLAIM ARISES, YOU SAY, BECAUSE THE MEMBER DIED ON THE DATE OF LOSS AND WAS THEREFORE NO LONGER ON ACTIVE DUTY.

UNDER THE PROVISIONS OF 31 U.S.C. 241 THE SECRETARY OF A MILITARY DEPARTMENT IS AUTHORIZED TO SETTLE CLAIMS FOR THE LOSS OR DAMAGE TO PERSONAL PROPERTY OF MEMBERS OF THE UNIFORMED SERVICES SUSTAINED INCIDENT TO THEIR SERVICE. EXCLUSIVE JURISDICTION FOR THE SETTLEMENT OF SUCH CLAIMS IS VESTED IN THE SECRETARY CONCERNED OR HIS DESIGNEE. UNDER THE PROVISIONS OF SUBSECTION 241(B)(2) SUCH CLAIMS MAY BE MADE BY THE SURVIVOR OF A PERSON ELIGIBLE TO CLAIM UNDER 31 U.S.C. 241, IF SUCH PERSON IS DECEASED.

UNDER THE PROVISIONS OF 31 U.S.C. 241(C)(2), HOWEVER, A CLAIM UNDER THIS SECTION MAY BE ALLOWED ONLY IF THE DAMAGE OR LOSS TO THE PROPERTY DID NOT OCCUR AT QUARTERS OCCUPIED BY THE CLAIMANT WITHIN THE FIFTY STATES OR THE DISTRICT OF COLUMBIA THAT WERE NOT ASSIGNED TO HIM OR OTHERWISE PROVIDED IN KIND BY THE UNITED STATES.

IT APPEARS THAT A CLAIM FOR PERSONAL CLOTHING ITEMS OF A UNIFORM IS COGNIZABLE UNDER THE PROVISIONS OF 31 U.S.C. 241. (AIR FORCE MANUAL 112- 1, TABLE 6-2.) HOWEVER, THAT TABLE INDICATES THAT ALTHOUGH SUCH A CLAIM IS COGNIZABLE UNDER THAT REGULATION, IT IS NOT PAYABLE UNDER THAT REGULATION AND REFERS TO AFM 67-1. IN VIEW OF THIS IT APPEARS THAT SUCH A CLAIM IS COGNIZABLE UNDER BOTH 31 U.S.C. 241, AND REGULATIONS ISSUED PURSUANT TO 37 U.S.C. 418 RELATING GENERALLY TO CLOTHING FURNISHED IN KIND OR A MONETARY ALLOWANCE IN LIEU THEREOF.

WHILE THE INFORMATION BEFORE US IS INSUFFICIENT FOR US TO MAKE A DETERMINATION AS TO WHETHER THE CLAIM IS COGNIZABLE UNDER THE PROVISIONS OF 31 U.S.C. 241, IT APPEARS THAT 31 U.S.C. 241(C)(2) WOULD PRECLUDE RECOVERY IN THIS CASE. THERE IS ALSO FOR CONSIDERATION WHETHER SUCH LOSS MAY BE CONSIDERED AS INCIDENT TO SERVICE. IN ANY EVENT, JURISDICTION OVER A CLAIM UNDER 31 U.S.C. 241 IS VESTED EXCLUSIVELY IN THE SECRETARY OF THE DEPARTMENT AS NOTED ABOVE.

THEREFORE, IT MUST BE ASSUMED THAT THIS CLAIM IS FOR CONSIDERATION SOLELY UNDER THE PROVISIONS OF 37 U.S.C. 418 AND THE REGULATIONS ISSUED PURSUANT THERETO, RATHER THAN 31 U.S.C. 241.

SECTION 418, TITLE 37, U.S. CODE, AUTHORIZES THE PRESIDENT TO PRESCRIBE THE QUANTITY AND KIND OF CLOTHING TO BE FURNISHED ANNUALLY TO AN ENLISTED MEMBER OF THE ARMED FORCES AND TO PRESCRIBE THE AMOUNT OF CASH ALLOWANCE TO BE PAID TO SUCH A MEMBER IF CLOTHING IS NOT FURNISHED TO HIM. THE PRESIDENT, BY EXECUTIVE ORDER 10113, FEBRUARY 24, 1950, DELEGATED THE AUTHORITY VESTED IN THE PRESIDENT TO THE SECRETARY OF DEFENSE WITH REGARD TO CLOTHING ALLOWANCES FOR ENLISTED PERSONNEL.

DEPARTMENT OF DEFENSE DIRECTIVE 1338.5, JUNE 25, 1962, WAS ISSUED PURSUANT TO THE DELEGATION OF AUTHORITY CONTAINED IN EXECUTIVE ORDER 10113. GENERALLY, THE DIRECTIVE SETS FORTH THE POLICIES AND REGULATIONS FOR THE CLOTHING MONETARY ALLOWANCE SYSTEM.

UNDER THE CLOTHING MONETARY ALLOWANCE SYSTEM AN INITIAL ALLOWANCE IS CREDITED TO ENLISTED MEMBERS AGAINST WHICH INITIAL ISSUES ARE DEBITED AND THEREAFTER A MAINTENANCE ALLOWANCE IS PAID TO THE MEMBER FOR MAINTENANCE AND REPAIR PERIODICALLY UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED.

SECTION V.A. 9 OF THE DIRECTIVE PROVIDES THAT WHEN INDIVIDUAL CLOTHING ITEMS OF A MEMBER ARE LOST, DAMAGED, DESTROYED, ABANDONED, CAPTURED OR OTHERWISE RENDERED UNSERVICEABLE INCIDENT TO SERVICE AND SUCH LOSS WAS NOT CAUSED BY ANY FAULT OR NEGLIGENCE ON THE PART OF THE MEMBER CONCERNED, THE MEMBER WILL BE COMPENSATED THEREFOR IN ACCORDANCE WITH PROCEDURES PRESCRIBED BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED. PARAGRAPH 30541 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE ENTITLEMENTS MANUAL CONTAINS SIMILAR PROVISIONS. THE REGULATIONS REFERRED TO IN YOUR LETTER WERE PROMULGATED PURSUANT TO THIS AUTHORITY.

SECTION 418, TITLE 37, U.S. CODE, THE DEPARTMENT OF DEFENSE DIRECTIVE, AND THE AIR FORCE MANUAL MAKE NO PROVISION FOR CLAIMS FOR LOST CLOTHING OF DECEASED MEMBERS. HOWEVER, IT IS INDICATED THAT CLAIMS FOR LOST CLOTHING ARE TO BE CONSIDERED AS PERSONAL TO THE MEMBER SUSTAINING THE LOSS. YOU NOTE THE REGULATIONS PROVIDE THAT THE MEMBER MAY SUBMIT THE CLAIM AND, ALSO, NO PROVISION IS MADE FOR THE SUBMISSION OF A CLAIM UPON HIS DEATH.

IN OUR DECISION, 26 COMP. GEN. 613(1947), THERE WAS CONSIDERED A CLAIM UNDER THE MILITARY PERSONNEL CLAIMS ACT OF 1945, CH. 135, 59 STAT. 225, 31 U.S.C. 223E, WHICH PROVIDED FOR CLAIMS BY MILITARY PERSONNEL FOR THE LOSS OR DESTRUCTION OF PERSONAL PROPERTY INCIDENT TO SERVICE UNDER CERTAIN CIRCUMSTANCES. IN THAT DECISION A CLAIM FOR COMPENSATION WAS SUBMITTED BY THE MOTHER OF A DECEASED MEMBER OF THE NAVY WHOSE PERSONAL PROPERTY WAS LOST AT THE SAME TIME HE LOST HIS LIFE. WE POINTED OUT THAT THE RIGHT TO REIMBURSEMENT UNDER THAT ACT WAS A STATUTORY RIGHT INTENDED PRIMARILY FOR THE PERSONAL BENEFIT OF MEMBERS OF THE ARMED FORCES, AND ORDINARILY SUCH A PERSONAL RIGHT IS NOT REGARDED AS EXTENDING BEYOND THE LIFE OF THE BENEFICIARY, UNLESS THE STATUTE EXPRESSLY SO PROVIDES.

WHILE IN THIS CASE WE ARE NOT DEALING WITH A SPECIFIC STATUTE SUCH AS THE MILITARY PERSONNEL CLAIMS ACT OF 1945, WE BELIEVE THE RATIONALE APPLIED IN 26 COMP. GEN. 613 TO BE APPLICABLE TO THIS CASE WHEN NO SPECIFIC PROVISION OF LAW OR REGULATION EXISTS AUTHORIZING THE SUBMISSION OF CLAIMS FOR LOST OR DESTROYED ITEMS OF PERSONAL MILITARY CLOTHING OF DECEASED MEMBERS.

THERE APPEARS TO BE LITTLE DOUBT THAT THE REGULATIONS PROMULGATED PURSUANT TO THE BROAD GRANT OF AUTHORITY IN 37 U.S.C. 418 WERE INTENDED, INSOFAR AS THE LOSS, DAMAGE, OR DESTRUCTION OF PERSONAL CLOTHING ITEMS OF MEMBERS OF THE UNIFORMED SERVICE INCIDENT TO SERVICE IS CONCERNED, TO GRANT A PERSONAL RIGHT TO THE MEMBER TO COMPENSATION FOR SUCH LOSSES. HENCE, IT IS OUR VIEW THAT WHEN A MEMBER DIES PRIOR TO OR SIMULTANEOUSLY WITH THE LOSS OF THE PERSONAL CLOTHING ITEMS, NO RIGHT TO COMPENSATION VESTED IN HIM COULD BE EXTENDED TO HIS HEIRS OR LEGAL REPRESENTATIVES.

ACCORDINGLY, PAYMENT IS NOT AUTHORIZED AND THE VOUCHER WILL BE RETAINED HERE.