FEBRUARY 14, 1924, 3 COMP. GEN. 520

FEBRUARY 14, 1924, 3 COMP. GEN. 520

ARMY PAY - CHECK AGE FOR DAMAGES TO PRIVATE PROPERTY - COURT-MARTIAL FORFEITURES THE STOPPAGE OF THE PAY OF AN ENLISTED MAN OF THE ARMY FOR DAMAGES TO PRIVATE PROPERTY, ORDERED UNDER THE 105TH ARTICLE OF WAR, 41 STAT., 808, SEGREGATES THE AMOUNT SO STOPPED, AND IT IS NOT AFFECTED BY A SUBSEQUENT COURT-MARTIAL SENTENCE FORFEITING ALL PAY DUE OR TO BECOME DUE.

DECISION BY COMPTROLLER GENERAL MCCARL, FEBRUARY 14, 1924:

THE F. T. KUEHNE FLAVORING EXTRACT CO. REQUESTED REVIEW OF SETTLEMENT NO. M-18090, DATED OCTOBER 4, 1923, BY WHICH WAS DISALLOWED ITS CLAIM FOR DAMAGES TO AN AUTOMOBILE OWNED BY IT RESULTING FROM A COLLISION WITH AN ARMY AUTOMOBILE DRIVEN BY AN ENLISTED MAN, IN ST. LOUIS, MO., SEPTEMBER 9, 1921, AND AMOUNTING TO $17.55. THE DISALLOWANCE WAS OF PAYMENT UNDER THE ACT OF MARCH 2, 1923, 42 STAT., 1386, APPROPRIATING FUNDS FOR THE PAYMENT OF CLAIMS OF NOT TO EXCEED $500 FOR DAMAGES TO AND LOSS OF PRIVATE PROPERTY INCIDENT TO THE TRAINING, PRACTICE, OPERATION, OR MAINTENANCE OF THE ARMY, AS RECOMMENDED BY THE WAR DEPARTMENT, AS THE CIRCUMSTANCES OF THIS CLAIM DID NOT BRING IT WITHIN THE LAW.

THE ARMY CAR--- A CADILLAC--- WAS ASSIGNED FOR THE USE OF THE COMMANDING OFFICER AT JEFFERSON BARRACKS, COL. JOHN H. PARKER, WHO STATES HE USED THE CAR IN HIS OFFICIAL CAPACITY ON THE EVENING OF SEPTEMBER 9 TO ATTEND A MEETING OR BANQUET OF THE "SOCIETY OF 40 AND 8," A VETERANS' ORGANIZATION. COLONEL PARKER STATES THAT ON ARRIVAL AT THE WARWICK HOTEL AT 6.50 P.M. HE INSTRUCTED THE DRIVER, PRIVATE ASH, TO PARK ON LOCUST STREET AND AWAIT HIM THERE, AND THAT AT 10.10 P.M., WHEN HE LEFT THE MEETING, HE FOUND THE CAR WITH PRIVATE ASH AWAITING HIM AT THE PLACE DESIGNATED. IN THE MEANTIME, BETWEEN 7.30 AND 8 P.M., THE COLLISION RESULTING IN THE DAMAGE HERE IN QUESTION OCCURRED AT DELMAR BOULEVARD AND VANDERVENTER AVENUE. ALTHOUGH PRIVATE ASH DENIED DRIVING THE CAR FROM THE PLACE AT WHICH COLONEL PARKER HAD DIRECTED HIM TO REMAIN, A BOARD OF OFFICERS APPOINTED TO INVESTIGATE THE MATTER FOUND THAT THE COLLISION WAS BETWEEN THE ARMY CADILLAC CAR DRIVEN BY PRIVATE ASH AND CLAIMANT'S CAR, AND THAT PRIVATE ASH WAS RESPONSIBLE FOR THE COLLISION.

COLONEL PARKER, AS COMMANDING OFFICER, APPROVED THIS FINDING AND BY LETTER DATED NOVEMBER 12, 1921, INFORMED CLAIMANT:

* * * I HAVE APPROVED THE FINDINGS OF THE BOARD. * * *

THE COST OF THE ACCIDENT WILL BE CHARGED TO PRIVATE ASHE AND DEDUCTED FROM HIS ACCOUNT BY THE FINANCE OFFICER WHO WILL SEND A CHECK TO YOU IN DUE COURSE TO PAY THE EXPENSE CLAIMED BY YOU.

THE CHECK WAS NEVER SENT, AS PROMISED, THE REASON THEREFOR APPARENTLY BEING THAT PRIVATE ASH WAS TRIED BY A GENERAL COURT-MARTIAL NOVEMBER 10, 1921, FOR DISOBEDIENCE OF THE ORDER GIVEN HIM BY COLONEL PARKER, FOR DRIVING THE CAR IN A RECKLESS MANNER CAUSING THE COLLISION, AND FOR MAKING A FALSE STATEMENT IN CONNECTION WITH THE INVESTIGATION. HE WAS FOUND GUILTY, SENTENCED, ADJUDGED DECEMBER 20, 1921, TO BE DISHONORABLY DISCHARGED, TO FORFEIT ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE, AND TO BE CONFINED AT HARD LABOR FOR NINE MONTHS. THE SENTENCE WAS APPROVED BY THE REVIEWING AUTHORITY AND PROMULGATED IN GENERAL COURT MARTIAL ORDER NO. 23, HEADQUARTERS SEVENTH CORPS AREA, FORT CROOK, NEBR., JANUARY 16, 1922.

THE DISALLOWANCE WAS BECAUSE THE DAMAGE WAS NOT "INCIDENT TO THE TRAINING, PRACTICE, OPERATION, OR MAINTENANCE OF THE ARMY," WITHIN THE MEANING OF THE ACT OF MARCH 2, 1023, 42 STAT., 1386, BUT RESULTED FROM THE UNAUTHORIZED USE OF ARMY EQUIPMENT AND IN DISOBEDIENCE OF ORDERS. THE FOREGOING RECITAL OF FACTS INDICATES THE CORRECTNESS OF THE HOLDING, BUT THAT HOLDING DOES NOT PASS ON THE RIGHT OF CLAIMANT TO REIMBURSEMENT UNDER ANY OTHER APPLICABLE STATUTE.

THE FIRST PARAGRAPH OF THE 105TH ARTICLE OF WAR, 41 STAT., 808, PROVIDES:

INJURIES TO PROPERTY--- REDRESS OF.--- 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 COMPLAINT 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.

THE ACTION TAKEN BY THE COMMANDING OFFICER WITH A VIEW TO ASCERTAINING THE DAMAGE AND FIXING THE RESPONSIBILITY THEREFOR WAS UNDER THIS PROVISION OF LAW, AND HIS APPROVAL OF THE FINDINGS OF THE BOARD AND ADVICE TO CLAIMANT THAT THE AMOUNT OF THE DAMAGES WOULD BE STOPPED FROM PRIVATE ASH'S PAY AND SENT TO CLAIMANT BY THE FINANCE OFFICER WAS WITH A VIEW TO APPLYING TO THIS CASE THE REMEDY AFFORDED INJURED CIVILIANS BY THE 105TH ARTICLE OF WAR. THE ADMINISTRATIVE VIEW APPARENTLY WAS THAT THE SUBSEQUENT CONVICTION OF PRIVATE ASH AND THE FORFEITURE OF ALL PAY DUE OR TO BECOME DUE RETURNED TO THE TREASURY THE FUND FROM WHICH THE STATUTE DIRECTED THE DAMAGE SHOULD BE PAID, AND DEFEATED THE REMEDY PROVIDED BY LAW.

THE PROVISION IS THAT THE FINDINGS OF THE 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.' THE SEGREGATION OF SO MUCH OF THE MAN'S PAY, LESS DEBTS DUE THE UNITED STATES AND ITS AGENCIES, AS IS NECESSARY TO LIQUIDATE THE INDEBTEDNESS IS DEFINITELY MADE BY THIS ACTION OF THE BOARD AND THE COMMANDING OFFICER. IF, THEREFORE, A SUBSEQUENT COURT-MARTIAL CAN FORFEIT THIS AMOUNT THE REMEDY PROVIDED BY THE STATUTE IS OF NO EFFECT, FOR IN MOST CASES THE ACTION CAUSING THE DAMAGE IS ALSO AN OFFENSE UNDER MILITARY LAW, AND IF THE OFFENDER IS KNOWN THE PAY ALLOTTED BY THE LAW FOR THE PAYMENT OF DAMAGE WILL BE FORFEITED BY A COURT-MARTIAL SENTENCE OF FORFEITURE OF PAY UNLESS THE DISBURSING OFFICER HAS PAID THE CLAIM BEFORE SENTENCE. AT BEST THE LAW IS NOT A COMPLETE REMEDY, AND SUCH A CONSTRUCTION WOULD MAKE IT FOR PRACTICAL PURPOSES INEFFECTIVE. AND SUCH HAS NOT BEEN THE CONSTRUCTION OF THE WAR DEPARTMENT; FOR EXAMPLE, DIG.OP. J.A.G., ARMY, 1912, P. 132, WHERE IT IS SAID:

THE STOPPAGE CONTEMPLATED IS QUITE DISTINCT FROM A PUNISHMENT BY FINE, AND IT CAN NOT AFFECT THE QUESTION OF THE SUMMARY REPARATION AUTHORIZED BY THE ARTICLE THAT THE OFFENDER OR OFFENDERS MAY HAVE ALREADY BEEN TRIED FOR THE OFFENSE AND SENTENCED TO FORFEITURE OF PAY. IN SUCH A CASE, INDEED, THE FORFEITURE, AS TO ITS EXECUTION, WOULD PROPERLY TAKE PRECEDENCE OF THE STOPPAGE. ON THE OTHER HAND, WHERE THE STOPPAGE IS FIRST DULY ORDERED UNDER THE ARTICLE, IT HAS PRECEDENCE OVER A FORFEITURE SUBSEQUENTLY ADJUDGED FOR THE OFFENSE.

SEE ALSO WINTHROP, MIL.LAW, 660; DIG.OP. J.A.G., 912, PP. 367 AND 622.

THE STOPPAGE IN THIS CASE WAS ORDERED BY THE COMMANDING OFFICER, OR SHOULD HAVE BEEN, BETWEEN NOVEMBER 8, 1921, DATE OF REPORT OF THE BOARD, AND NOVEMBER 12, 1921, DATE OF LETTER TO CLAIMANT ADVISING HIM THAT THE REPORT HAD BEEN APPROVED. THE COURT-MARTIAL SENTENCE BECAME EFFECTIVE JANUARY 16, 1922, DATE OF APPROVAL AND PROMULGATION. PRIVATE ASH WAS LAST PAID TO OCTOBER 31, 1921; HIS ACCOUNT AS OF JANUARY 15, 1922, WOULD BE AS FOLLOWS: CREDIT:

PAY, NOVEMBER 1, 1921, TO JANUARY 15, 1922, 2 1/2

MONTHS AT $30 -------------------------------------------------- $75.00 DEBITS:

Q.M. PROPERTY ------------------------------------ $23.62

P.E. JEFF. BKS., MO ----------------------------- 10.00

LAUNDRY, JEFF. BKS., MO ------------------------- 1.50

DET. FUNDS. Q.M. CORPS, JEFF. BKS., MO ---------- .40 35.52

BALANCE ------------------------------------------ $39.48

THIS AMOUNT WAS TRANSFERRED TO THE SOLDIERS' HOME, PURSUANT TO THE PROVISIONS OF SECTION 4818, REVISED STATUTES. AS HAS BEEN SHOWN $17.55 WAS OBLIGATED BY THE ACTION UNDER THE 105TH ARTICLE OF WAR, AND WAS THEREFORE IMPROPERLY TRANSFERRED TO THE SOLDIERS' HOME. THAT AMOUNT WILL ACCORDINGLY BE DEDUCTED FROM THE NEXT TRANSFER SETTLEMENT AND RESTORED TO THE APPROPRIATION "PAY, ETC., OF THE ARMY, 1922.'

CLAIMANT IS ENTITLED TO THE AMOUNT OBLIGATED BY PROCEEDINGS UNDER THE 105TH ARTICLE OF WAR PRIOR TO THE COURT-MARTIAL SENTENCE; ON REVIEW THE SETTLEMENT IS MODIFIED AND $17.55 IS CERTIFIED DUE CLAIMANT FOR PAYMENT UNDER "PAY, ETC., OF THE ARMY, 1922.'