B-25822, JUN 21, 1942

B-25822, JUN 21, 1942

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL WILLIAM A. LORD. JR., U. S. ARMY:

THERE HAS BEEN RECEIVED YOUR LETTER DATED APRIL 16, 1942, IN WHICH YOU REQUEST REVIEW OF SETTLEMENT DATED APRIL 2, 1942, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $2.59 REPRESENTING AN AMOUNT ASSESSED AGAINST YOU IN CONNECTION WITH DAMAGES TO CERTAIN PRIVATE PROPERTY.

BY SPECIAL ORDERS NO. 169, HEADQUARTERS 44TH DIVISION, A. P. HILL MILITARY RESERVATION, VIRGINIA, DATED JULY 21, 1941, A BOARD OF OFFICERS WAS APPOINTED TO INVESTIGATE AND ADJUST CLAIMS FOR DAMAGES ARISING IN CONNECTION WITH THE MANEUVERS OF THE 44TH DIVISION. AS A RESULT OF AN INVESTIGATION MADE BY THE BOARD IN CONNECTION WITH ALLEGED DEPREDATION OF OR DAMAGE TO A TWO-STORY FRAME HOUSE OF MRS. B. M. SKINKER, YOU WERE DIRECTED TO PAY THE SUM OF $2.59 AND STOPPAGE WAS PLACED AGAINST YOUR PAY FOR SUCH AMOUNT, AS AN OFFICER OF THE ORGANIZATION OR DETACHMENT TO WHICH THE OFFENDERS, WHO COULD NOT BE ASCERTAINED, BELONGED. SUCH ACTION WAS TAKEN PURSUANT TO THE 105TH ARTICLE OF WAR, WHICH PROVIDES AS FOLLOWS:

"WHENEVER COMPLAINT IS MADE TO ANY COMMANDING OFFICER THAT DAMAGE HAS BEEN DONE TO THE PROPERTY OF ANY PERSON OR THAT HIS PROPERTY HAS BEEN WRONGFULLY TAKEN BY PERSONS SUBJECT TO MILITARY LAW, SUCH COMPLAINTS, SHALL BE INVESTIGATED BY A BOARD CONSISTING OF ANY NUMBER OF OFFICERS FROM ONE TO THREE, WHICH BOARD SHALL BE CONVENED BY THE COMMANDING OFFICER AND SHALL HAVE, FOR THE PURPOSE OF SUCH INVESTIGATION, POWER TO SUMMON WITNESSES AND EXAMINE THEM UPON OATH OR AFFIRMATION, TO RECEIVE DEPOSITIONS OR OTHER DOCUMENTARY EVIDENCE, AND TO ASSESS THE DAMAGES SUSTAINED AGAINST THE RESPONSIBLE PARTIES. THE ASSESSMENT OF DAMAGES MADE BY SUCH BOARD SHALL BE SUBJECT TO THE APPROVAL OF THE COMMANDING OFFICER, AND IN THE AMOUNT APPROVED BY HIM SHALL BE STOPPED AGAINST THE PAY OF THE OFFENDERS. AND THE ORDER OF SUCH COMMANDING OFFICER DIRECTING STOPPAGES HEREIN AUTHORIZED SHALL BE CONCLUSIVE ON ANY DISBURSING OFFICER FOR THE PAYMENT BY HIM TO THE INJURED PARTIES OF THE STOPPAGES SO ORDERED.

"WHERE THE OFFENDERS CANNOT BE ASCERTAINED, BUT THE ORGANIZATION OR DETACHMENT TO WHICH THEY BELONG IS KNOWN, STOPPAGE TO THE AMOUNT OF DAMAGES INFLICTED MAY BE MADE AND ASSESSED IN SUCH PROPORTION AS MAY BE DEEMED JUST UPON THE INDIVIDUAL MEMBERS THEREOF WHO ARE SHOWN TO HAVE BEEN PRESENT WITH SUCH ORGANIZATION OR DETACHMENT AT THE TIME THE DAMAGES COMPLAINED OF WERE INFLICTED AS DETERMINED BY THE APPROVED FINDINGS OF THE BOARD."

YOU STATE THAT YOU WERE NOT AWARE OF THE APPOINTMENT OF THE BOARD TO INVESTIGATE THE CLAIM, THAT YOU WERE NOT REPRESENTED BEFORE THE BOARD AND THAT THEREFORE ACTION OF THE BOARD CONSTITUTED A TAKING OF YOUR PROPERTY WITHOUT DUE PROCESS OF LAW. HOWEVER, BY LAW THE CONGRESS HAS AUTHORIZED THE INVESTIGATION OF SUCH CLAIMS AND THE MAKING OF A DETERMINATION IN EACH CASE AS TO THOSE RESPONSIBLE FOR THE DAMAGE. IN VIEW OF THE PROVISIONS OF ARTICLE I, SECTION B, CLAUSE 14, OF THE CONSTITUTION WHICH AUTHORIZES THE CONGRESS TO MAKE RULES FOR THE GOVERNMENT AND REGULATION OF THE LAND NAVAL FORCES, THE AUTHORITY TO ENACT THE ABOVE PROVISIONS FOR THE PURPOSE OF PLACING ASSESSMENTS AGAINST THE PAY OF PERSONS SUBJECT TO MILITARY LAW IN THE MANNER SPECIFIED THEREIN CANNOT BE QUESTIONED. SEE FOR EXAMPLE EX PARTS REED, 100 U. S. 13; KAHN V. ANDERSON, 255 U. S. 1.

YOU ALSO CALL ATTENTION TO SEVERAL ALLEGED IRREGULARITIES IN THE PROCEEDINGS OF THE BOARD AND SUGGEST BECAUSE OF SUCH IRREGULARITIES THAT THE AMOUNT ASSESSED AGAINST YOU SHOULD BE REFUNDED. IT CANNOT BE DENIED THAT THE APPOINTMENT OF THE BOARD WAS AUTHORIZED OR THAT IT ACTED WITHIN ITS JURISDICTION IN THE INVESTIGATION HERE IN QUESTION. WHETHER THE ACTION TAKEN BY THE BOARD WAS PROPER IS PRIMARILY A MILITARY QUESTION AND AS YOU WERE ADVISED IN THE SETTLEMENT REFERRED TO ABOVE, UNDER THE 105TH ARTICLE OF WAR THE ASSESSMENT OF DAMAGES BY THE BOARD OF OFFICERS AND THE APPROVAL THEREOF BY THE COMMANDING OFFICER IS SUFFICIENT AUTHORITY FOR MAKING STOPPAGE AGAINST THE PAY OF ANY PERSON SUBJECT TO MILITARY LAW HELD RESPONSIBLE THEREFOR. THE SETTLEMENT OF THE CLAIM IS SUSTAINED.