B-45178, MARCH 8, 1945, 24 COMP. GEN. 664

B-45178, MARCH 8, 1945, 24 COMP. GEN. 664

COMMISSIONED OFFICERS OF PUBLIC HEALTH SERVICE - PROPERTY DAMAGE, LOSS, OR DESTRUCTION COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE DETAILED FOR DUTY WITH THE COAST GUARD WHEN IT IS OPERATING "AS PART OF THE NAVY" UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 8929 MAY BE REGARDED AS "SERVING WITH THE NAVY" WITHIN THE MEANING OF SECTION 6 OF THE ACT OF OCTOBER 27, 1943, APPLYING THE PROVISIONS THEREOF WITH RESPECT TO REIMBURSEMENT OF CERTAIN NAVAL PERSONNEL FOR THE LOSS, DAMAGE, OR DESTRUCTION OF PERSONAL PROPERTY TO THE PERSONNEL OF THE PUBLIC HEALTH SERVICE WHEN SERVING WITH THE NAVY. IN VIEW OF THE PROVISIONS OF SECTION 8 OF THE ACT OF OCTOBER 27, 1943, RESPECTING REIMBURSEMENT FOR PERSONAL PROPERTY LOSSES OF NAVAL, ETC., PERSONNEL, TO THE EFFECT THAT COAST GUARD APPROPRIATIONS AVAILABLE FOR PAYMENT OF CLAIMS UNDER THE SIMILAR ACT OF OCTOBER 6, 1917, NOW REPEALED, ARE AVAILABLE FOR PAYMENT OF CLAIMS UNDER THE 1943 ACT, COAST GUARD APPROPRIATIONS THUS MADE AVAILABLE MAY BE USED FOR PAYMENT OF CLAIMS OF PUBLIC HEALTH SERVICE COMMISSIONED OFFICERS WHO, BY REASON OF SECTION 6 OF THE 1943 ACT, WERE ENTITLED TO REIMBURSEMENT FOR THEIR PROPERTY LOSSES, ETC., WHEN SERVING WITH THE COAST GUARD, ALTHOUGH SAID APPROPRIATIONS WERE NOT THERETOFORE USED FOR PAYMENT OF SUCH CLAIMS. THE RIGHTS OF PUBLIC HEALTH SERVICE COMMISSIONED OFFICERS SERVING WITH THE NAVY TO REIMBURSEMENT FOR THE LOSS, DAMAGE, OR DESTRUCTION OF PERSONAL PROPERTY UNDER THE PROVISIONS OF THE ACT OF OCTOBER 27, 1943, RELATING TO PROPERTY LOSSES, ETC., OF NAVAL PERSONNEL, AS SPECIFICALLY PROVIDED BY SECTION 6 THEREOF, WERE UNAFFECTED BY THE PROVISIONS OF THE ACT OF NOVEMBER 11, 1943, RELATING TO THE ORGANIZATION AND FUNCTIONS OF THE PUBLIC HEALTH SERVICE, SINCE THE LATTER ACT ASSIMILATED THE MILITARY BENEFITS RIGHTS OF SUCH OFFICERS TO THOSE OF NAVAL, AS WELL AS MILITARY, COMMISSIONED PERSONNEL. SECTION 6 OF THE ACT OF OCTOBER 27, 1943, MAKING THE PROVISIONS OF THE ACT (RELATING TO REIMBURSEMENT FOR THE LOSS, DAMAGE, OR DESTRUCTION OF PERSONAL PROPERTY OF NAVAL PERSONNEL) APPLICABLE TO PUBLIC HEALTH SERVICE PERSONNEL WHEN SERVING WITH THE NAVY, IS INAPPLICABLE TO PUBLIC HEALTH SERVICE COMMISSIONED OFFICERS FROM AND AFTER THE DATE OF THE PUBLIC HEALTH SERVICE ACT OF JULY 1, 1944, WHICH ASSIMILATES THE MILITARY BENEFITS RIGHTS OF SUCH OFFICERS TO THOSE OF COMMISSIONED OFFICERS OF THE ARMY; INSTEAD, SUCH PUBLIC HEALTH SERVICE OFFICERS NOW ARE ENTITLED TO REIMBURSEMENT FOR PERSONAL PROPERTY LOSSES, ETC., UNDER THE PROVISIONS OF EXISTING LAW APPLICABLE TO ARMY OFFICERS.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MARCH 8, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 14, 1944, WITH ENCLOSURES FROM THE ACTING COMMANDANT, UNITED STATES COAST GUARD, REQUESTING A DECISION RELATIVE TO THE APPROPRIATION LEGALLY AVAILABLE FOR REIMBURSEMENT TO COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE WHEN SERVING WITH THE COAST GUARD IN TIME OF WAR, FOR LOSS, DAMAGE, OR DESTRUCTION OF THEIR PERSONAL PROPERTY UNDER THE PROVISIONS OF THE ACT OF OCTOBER 27, 1943, 57 STAT. 582, 583.

THE SAID ACT OF OCTOBER 27, 1943, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THAT THE SECRETARY OF THE NAVY AND, SUBJECT TO APPEAL TO THE SECRETARY OF THE NAVY, SUCH OTHER OFFICER OR OFFICERS AS HE MAY DESIGNATE FOR SUCH PURPOSES AND UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, ARE HEREBY AUTHORIZED TO CONSIDER, AND TO ASCERTAIN, ADJUST, DETERMINE, AND PAY ANY CLAIM FILED UNDER OATH OF THE COMMISSIONED, APPOINTED, ENROLLED, AND ENLISTED PERSONNEL OF THE NAVY AND MARINE CORPS, AND OF THE COAST GUARD WHEN OPERATING AS A PART OF THE NAVY AND OF CIVILIAN EMPLOYEES OF THE NAVAL ESTABLISHMENT, FOR LOSS, DAMAGE, OR DESTRUCTION OF THEIR PRIVATE PERSONAL PROPERTY OCCURRING ON OR AFTER DECEMBER 7, 1941, WHEN SUCH LOSS, DAMAGE, OR DESTRUCTION IS NOT DUE TO FAULT OR NEGLIGENCE ON THE PART OF THE CLAIMANT AND HAS OCCURRED OR SHALL HEREAFTER OCCUR UNDER THE FOLLOWING CIRCUMSTANCES:

FIRST. WHEN THE LOSS, DAMAGE, OR DESTRUCTION IS DUE TO OPERATIONS OF WAR, SHIPWRECK, OR OTHER MARINE DISASTER, OR THE WRECK OF AN AIRCRAFT OR OTHER DISASTER THERETO: PROVIDED, THAT THE TERM ,MARINE DISASTER" AS USED HEREIN SHALL INCLUDE AN ACCIDENT OCCURRING ON BOARD A VESSEL.

SECOND. WHEN THE LOSS, DAMAGE, OR DESTRUCTION IS IN CONSEQUENCE OF THE SERVICEMAN OR EMPLOYEE HAVING GIVEN HIS ATTENTION TO THE SAVING OF THE LIFE OF ANOTHER, OR OF PROPERTY BELONGING TO THE UNITED STATES.

THIRD. WHEN SUCH PROPERTY IS LOST, DAMAGED, OR DESTROYED BY REASON OF BEING SHIPPED ON BOARD AN UNSEAWORTHY VESSEL BY ORDER OF AN OFFICER AUTHORIZED TO GIVE SUCH ORDER OR DIRECT SUCH HIPMENT; OR IS LOST, DAMAGED, OR DESTROYED, WHETHER OR NOT DUE TO NEGLIGENCE ON THE PART OF GOVERNMENT PERSONNEL, WHILE IN SHIPMENT PURSUANT TO ORDERS ISSUED BY COMPETENT AUTHORITY, BUT WHERE THE PROPERTY WAS TRANSPORTED BY A COMMON CARRIER, THE REIMBURSEMENT SHALL BE LIMITED TO THE EXTENT OF SUCH LOSS, DAMAGE, OR DESTRUCTION OVER AND ABOVE THE AMOUNT RECOVERABLE FROM SUCH CARRIER.

FOURTH. WHEN SUCH PROPERTY IS LOST, DAMAGED, OR DESTROYED BY REASON OF BEING FURNISHED AT THE DIRECTION OF COMPETENT AUTHORITY TO ANOTHER PERSON UNDER CONDITIONS OF IMMEDIATE AND URGENT DISTRESS.

REIMBURSEMENT MAY BE MADE IN ALL SUCH CASES FOR LOSS, DAMAGE, OR DESTRUCTION OF SUCH ARTICLES AS ARE REQUIRED TO BE POSSESSED AND USED BY OFFICERS, ENLISTED MEN, AND OTHERS IN CONNECTION WITH THEIR SERVICE OF EMPLOYMENT, AND SUCH ADDITIONAL ITEMS OF PERSONAL PROPERTY, INCLUDING MONEY OR CURRENCY, AS THE SECRETARY OF THE NAVY SHALL DETERMINE TO HAVE BEEN REASONABLY AND PROPERLY IN THE PLACE WHEN THEY WERE LOST, DAMAGED, OR DESTROYED, IN CONSEQUENCE OF THE SERVICE OF EMPLOYMENT IN WHICH THE SERVICEMAN OR EMPLOYEE WAS ENGAGED: PROVIDED, THAT REIMBURSEMENT MAY BE MADE FOR LOSS OF MONEY OR CURRENCY ONLY WHEN SUCH MONEY OR CURRENCY HAS BEEN DEPOSITED FOR SAFE KEEPING AS PROVIDED BY REGULATIONS PROMULGATED BY THE SECRETARY OF THE NAVY OR AS PROVIDED BY ORDERS OF THE COMMANDING OFFICER.

SEC. 2. THE SECRETARY OF THE NAVY IS AUTHORIZED TO REIMBURSE THE CLAIMANT IN KIND OUT OF AVAILABLE GOVERNMENT PROPERTY, OR TO PAY THE AMOUNT DETERMINED TO BE DUE ON CLAIMS UNDER THIS ACT, OUT OF ANY APPROPRIATION AVAILABLE FOR THE PURPOSE. * * * * *

SEC. 6. THE PROVISIONS OF THIS ACT SHALL APPLY TO THE PERSONNEL OF THE COAST AND GEODETIC SURVEY AND PUBLIC HEALTH SERVICE WHEN SERVING WITH THE NAVY. * ** *

SEC. 8. THE APPROPRIATIONS AVAILABLE TO THE NAVY DEPARTMENT AND THE COAST GUARD FOR THE PAYMENT OF CLAIMS UNDER THE PROVISIONS OF THE ACT OF OCTOBER 6, 1917 (40 STAT. 389), AS AMENDED, ARE HEREBY MADE AVAILABLE FOR PAYMENT OR REIMBURSEMENT OF CLAIMS DETERMINED UNDER THE PROVISIONS OF THIS ACT.

IT APPEARS FROM THE ENCLOSURES ACCOMPANYING YOUR LETTER THAT, ASIDE FROM THE QUESTION AS TO THE PARTICULAR APPROPRIATION AVAILABLE FOR PAYMENT OF SUCH CLAIMS, THERE IS DOUBT WHETHER A COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE SERVING WITH THE COAST GUARD WHEN THE COAST GUARD IS OPERATING AS A PART OF THE NAVY IS "SERVING WITH THE NAVY" WITHIN THE MEANING OF SECTION 6 OF THE ACT OF OCTOBER 27, 1943, SUPRA.

EXECUTIVE ORDER NO. 8929, DATED NOVEMBER 1, 1941, PROVIDES:

BY VIRTUE OF THE AUTHORITY VESTED IN ME BY SECTION 1 OF THE ACT OF CONGRESS APPROVED JANUARY 28, 1915, 38 STAT. 800 ( U.S.C., TITLE 14, SEC. 1), AS AMENDED BY SECTIONS 5 AND 6 OF THE ACT OF JULY 11, 1941, PUBLIC LAW 166, 77TH CONGRESS, ST SESSION, IT IS HEREBY DIRECTED THAT THE COAST GUARD SHALL FROM THIS DATE, UNTIL FURTHER ORDERS, OPERATE AS A PART OF THE NAVY, SUBJECT TO THE ORDERS OF THE SECRETARY OF THE NAVY.

UNDER THE PROVISIONS OF THE QUOTED EXECUTIVE ORDER, THE COAST GUARD NOW IS OPERATING AS A PART OF THE NAVY AND IT SEEMS CLEAR THAT PERSONNEL OF THE PUBLIC HEALTH SERVICE DETAILED FOR DUTY WITH THE COAST GUARD WHILE SO OPERATING ARE "SERVING WITH THE NAVY.' THE FACT THAT IMMEDIATE JURISDICTION OVER SUCH PERSONNEL IS EXERCISED BY COAST GUARD RATHER THAN NAVY PERSONNEL IN NOWISE WOULD AFFECT THE CHARACTER OF THEIR SERVICE WITH THE NAVY SINCE, UNDER THE CIRCUMSTANCES STATED, THE COAST GUARD WHEN IT IS OPERATING AS A PART OF THE NAVY PROPERLY MAY BE REGARDED AS "SERVING WITH THE NAVY" WITHIN THE MEANING OF SECTION 6 OF THE SAID ACT OF OCTOBER 27, 1943, SUPRA.

WITH RESPECT TO THE SPECIFIC QUESTION RAISED AS TO THE APPROPRIATION AVAILABLE FOR REIMBURSEMENT UNDER THE PROVISIONS OF THE 1943 ACT, SUPRA, TO COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE WHEN DETAILED TO THE COAST GUARD, IT WILL BE NOTED THAT SECTION 8 THEREOF SPECIFICALLY PROVIDES THAT APPROPRIATIONS AVAILABLE TO THE NAVY DEPARTMENT AND THE COAST GUARD FOR PAYMENT OF CLAIMS UNDER THE PROVISIONS OF THE ACT OF OCTOBER 6, 1917, 40 STAT. 389,"ARE HEREBY MADE AVAILABLE FOR THE PAYMENT OR REIMBURSEMENT OF CLAIMS DETERMINED UNDER THE PROVISIONS OF THIS ACT.' MANIFESTLY, THE AVAILABILITY OF THE APPROPRIATIONS THUS MENTIONED IS NOT LIMITED TO PAYMENT OF CLAIMS OF THE CHARACTER COGNIZABLE UNDER THE SAID 1917 ACT. THE CONTRARY, IT IS PROVIDED SPECIFICALLY THAT THE APPROPRIATIONS THERETOFORE AVAILABLE FOR PAYMENT OR REIMBURSEMENT UNDER THE 1917 ACT SHALL BE AVAILABLE FOR PAYMENT OF CLAIMS ARISING UNDER THE 1943 ACT. HENCE, THE FACT, AS STATED BY THE ACTING COMMANDANT, THAT THE COAST GUARD APPROPRIATION HAS NOT BEEN HELD APPLICABLE TO CLAIMS, UNDER THE 1917 ACT, OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE SERVING WITH THE COAST GUARD WOULD NOT PRECLUDE PAYMENT THEREFROM OF CLAIMS OF SUCH OFFICERS ARISING UNDER THE 1943 STATUTE.

SINCE REIMBURSEMENT UNDER THE PROVISIONS OF THE 1943 ACT TO COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE DETAILED FOR DUTY WITH THE COAST GUARD CLEARLY APPEARS AN EXPENSE CHARGEABLE TO COAST GUARD FUNDS RATHER THAN NAVY FUNDS, THE APPROPRIATION " PAY AND ALLOWANCES, COAST GUARD," WHICH NOW HAS REPLACED THE APPROPRIATION " COAST GUARD"--- AVAILABLE FOR PAYMENT OF CLAIMS UNDER THE 1917 ACT--- PROPERTY SHOULD BE CHARGED WITH SUCH EXPENSE.

SUBSEQUENT TO THE ACT OF OCTOBER 27, 1943, SUPRA, THERE WAS ENACTED THE ACT OF NOVEMBER 11, 1943, 57 STAT. 587, AN ACT RELATING TO THE ORGANIZATION AND FUNCTIONS OF THE PUBLIC HEALTH SERVICE, WHICH WAS LATER REPEALED BY THE ACT OF JULY 1, 1944, 58 STAT. 682. UNDER THE PROVISIONS OF THE ACT OF NOVEMBER 11, 1943, COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE IN TIME OF WAR AND UNDER CERTAIN OTHER CONDITIONS WERE ENTITLED TO MILITARY BENEFITS AS PROVIDED BY LAW "IN THE CASE OF COMMISSIONED MILITARY AND NAVAL PERSONNEL OF THE UNITED STATES.' WHILE NOT INCLUDED IN THE BENEFITS SPECIFICALLY MENTIONED, THE RIGHT TO REIMBURSEMENT FOR LOSS OF PRIVATE PERSONAL PROPERTY WAS ONE OF THE "MILITARY BENEFITS" AUTHORIZED THEREIN. SEE STATEMENT OF MR. ALANSON W. WILCOX, ASSISTANT GENERAL COUNSEL, FEDERAL SECURITY ADMINISTRATION, ON PAGE 110, HEARING BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, HOUSE OF REPRESENTATIVES ON H.R. 3379--- THE PROVISIONS OF WHICH AS MODIFIED BY H.R. 4624 SUBSEQUENTLY WERE ENACTED INTO LAW AS THE SAID ACT OF JULY 1, 1944. SINCE BY VIRTUE OF THE PROVISIONS OF THE SAID ACT OF NOVEMBER 11, 1943, COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE--- SO FAR AS CONCERNED THEIR RIGHTS TO MILITARY BENEFITS--- WERE ASSIMILATED TO COMMISSIONED NAVAL PERSONNEL AS WELL AS COMMISSIONED MILITARY PERSONNEL, THE RIGHTS OF SUCH OFFICERS TO REIMBURSEMENT UNDER THE PROVISIONS OF THE ACT OF OCTOBER 27, 1943, WERE UNAFFECTED AND, WHILE SUCH OFFICERS WERE DETAILED FOR DUTY WITH THE COAST GUARD, THE APPLICABLE COAST GUARD APPROPRIATION WOULD CONTINUE TO BE AVAILABLE FOR PAYMENT OR REIMBURSEMENT TO THEM.

HOWEVER, BY THE ACT OF JULY 1, 1944, SUPRA, THE ASSIMILATION OF THE RIGHTS OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE WITH THOSE OF COMMISSIONED NAVAL PERSONNEL WAS DISCONTINUED AND IT WAS PROVIDED BY SECTION 212 (A) THEROF, 58 STAT. 689, THAT WITH RESPECT TO MILITARY BENEFITS SUCH OFFICERS SHOULD BE ENTITLED TO THE BENEFITS PROVIDED BY LAW FOR "COMMISSIONED OFFICERS OF THE ARMY.' HENCE, FROM AND AFTER THE ENACTMENT OF THE ACT OF JULY 1, 1944, COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE NO LONGER ARE ENTITLED TO THE BENEFITS OF THE ACT OF OCTOBER 27, 1943, EVEN THOUGH DETAILED TO THE COAST GUARD. BUT REIMBURSEMENT TO THEM FOR LOSS, DAMAGE, ETC., OF PRIVATE PROPERTY IS GOVERNED BY THE PROVISIONS OF EXISTING LAW RELATING TO LOSS OF PRIVATE PROPERTY BY COMMISSIONED OFFICERS OF THE ARMY.