B-180082 March 1, 1974

B-180082 March 1, 1974

The Honorable B. F. Sisk House of Representatives

Dear Mr. Sisk:

Further reference is made to your letter of November 13, 1973, with enclosures, on behalf of none of your consitituents, Mr. Ray L. Hall, 4337 North Cedar Avenue, Fresno, California 93726, concerning a claim Mr. Hall submitted to the Department of the Navy seeking restitution for certain items impounded by the Naval Investigative Service (NIC) in Taipei, Taiwan, in December 1970. Mr. Hall's claim has been administratively disallowed by the Department of the Navy and you ask that this Office review the claim and determine whether or not the action of the Navy was correct.

The information submitted with your letter indicates that while Mr. Hall, at the time a Staff Sergeant in the United States army, was serving in Vietnam, his wife, a naturalized United States citizen, formerly a citizen of Taiwan, was living in Taipei. In December 1970, Mrs. Hall, while in Hong Kong, mailed four packages at the Fleet Post office, two of which were addressed to herself and two of which were addressed to a military member stationed in Taiwan. Because of a number of similar mailings by Mrs. Hall previously, the Naval Investigative Service was asked to investigate in an attempt to determine whether Mrs. Hall was engaging in black market activities. Therefore, when Mrs. Hall and the member later attempted to claim the packages in Taiwan they were intercepted by NIS agents who searched the packages and discovered, among other items, a large quantity of medicinal drugs and vitamins. The packages were then seized by NIS as part of its investigation. A report in the matter from the Office of the Chief of Naval Operations states that although there was no direct evidence that Mrs. Hall intended to resell the items in the black market, there was justification to reach that conclusion under the circumstances since all of the items involved had a high profit value if resold locally and it was not believed that Mrs. Hall and her family could utilize for their personal use such a large quantity of drugs and vitamins prior to expiration of the usage date.

Subsequently, on August 4, 1972, Mr. Hall sought return of the impounded items and most of them were returned to him. However, some of the items were discovered to be missing and an investigation showed that established NIS procedures had not been followed in the handling of the items during the period of impoundment, allowing some of them to disappear. Mr. Hall then submitted a claim for the missing items in the amount of $1,500. He was apparently first offered $500 in settlement for the missing items, which offer he refused. Thereafter Mr. Hall was notified by the Deputy Assistant Judge Advocate General of the Navy that the claim had been denied because of Mrs. Hall's violation of military postal regulations. It was stated in the letter of denial that Mrs. Hall's shipment "was obviously a commercial shipment which was intended to evade Taiwan customs" and that, since military postal regulations prohibit use of the military postal service for commercial purposes, payment if a loss was caused even in part by the claimant. On appeal, the claim was disallowed on that same basis by the Under Secretary of the Navy.

The cited section, 10 U.S.C. 2733, provides, in part, as follows:

"(a) Under such regulations as the Secretary concerned may prescribe, he, or, subject to appeal to him, the Judge Advocate General of an armed force under his jurisdiction, or the chief legal officer of the Coast Guard, as appropriate, if designated by him, may settle, and pay in an amount not more than $15,000, a claim against the United States for--

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"(2) damage to or loss of personal property, including property bailed to the United States and including registered or insured maili damaged, lost, or diestroyed by a criminal act while in the possession of the Army, Navy, Air Force, Marine Corps, or Coast Guard, as the case may be; or

* * * * *

either caused by a civilian officer or employee of that department, or the Coast Guard, or a member of the Army, Navy, Air Force, Marine Corps, or Coast Guard, as the case may be, acting within the scope of his employment, or otherwise incident to noncombat activities of that department, or the Coast Guard.

"(b) A claim may be allowed under subsection (a) only if--

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"(4) the damage to, or loss of, property, or the personal injury or death, was not caused wholly or partly by a negligent or wrongful act of the claiment, his agent, or his employee; or, if so caused, allowed only to the extend that the law of the place where the act or omission complained or occured would permit recovery from a private individual under like circumstances; and

"(5) it is substantiated as prescribed in regulations of the Secretary concerned."

Section 2735 of title 10, United States Code, provides as follows:

"Notwithstanding any other provision of law, the settlement of a claim under section 2733, 2734, 2734a, 2734b, or 2737 of this title is final and conclusive."

It appears from the enclosures that Mrs. Hall was never found to have actually violated the regulations and that all but the missing items confiscated by NIS were apparently returned to Mr. Hall. As indicated in your letter, Mr. Hall apparently was offered a settlement of $500 at one point but that offer was never accepted because of a disagreement between him and the appropriate officials as to the value of the missing items.

However, under 10 U.S.C. 2735 determiniations made by the Department of the Navy under 10 U.S.C. 2733 are final and conclusive and, consequently, there is no basis under which this Office has jurisdiction or authority to review the determination of the Department of the Navy with respect to Mr. Hall's claim which apparently was considered in accord with the general claims regulations of the Department of the Navy which are contained in Chapter XX of the Manual of the Judge Advocate General of the Navy, sections 2050-2059 thereof (32 CFR 750.50-750.59) which deal specifically with claims under 10 U.S.C. 2733.

We regret that a more favorable reply cannot be made on behalf of your constituent.

Sincerely yours,

R. F. KELLER Deputy Comptroller General of the United States