report of a board of officers appointed by the commanding officer of the nearest aviation post and approved by the Chief of Air Service and the Secretary of War. Claims settled and paid from the sum appropriated shall not exceed the sum authorized. If the claim exceeds $250 and the claimant declines or fails to accept an award of $250 or less, the claim will be disposed of in the manner prescribed in §§ 36.9-36.11 for claims for damage to or loss of private property incident to the training, practice, operation, or maintenance of the Army, except that no claims for damages to persons can be considered under §§ 36.9-36.11. (42 Stat. 737, 50 Stat. 456; 31 U.S.C. 224) [Par. 1, AR 35-7060, Dec. 30, 1924]

36.13 Procedure. When a claim for damages arises under this law the claimant should submit his claim to the commanding officer of the nearest aviation station, as provided in § 36.6. Upon the receipt of such a claim the commanding officer will refer it in the usual manner to a surveying officer or board of officers, who will take the action prescribed in § 36.7. The foregoing procedure will also be followed, as far as practicable, in all claims for personal damages resulting from the operation of aircraft. (42 Stat. 737, 50 Stat. 456; 31 U.S.C. 224) [Par. 2, AR 35-7060, Dec. 30, 1924]

DAMAGE TO OR LOSS OF PRIVATE PROPERTY CAUSED BY THE NEGLIGENCE OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT

36.14 Procedure. When a claim for damages arises under the Act of December 28, 1922 (42 Stat. 1066; 31 U.S.C. 215), the claimant should submit his claim to the commanding officer of the post, camp, station, or other unit of the Military Establishment within which or nearest adjacent to which the loss or damage occurred, as provided in § 36.6. Upon the receipt of such a claim, the commanding officer will refer it in the usual manner to a surveying officer or board of officers who will take the action prescribed in § 36.7. (Sec. 2, 42 Stat. 1066; 31 U.S.C. 215) [Par. 2, AR 35-7070, Jan. 2, 1925]

CLAIMS UNDER THE ONE HUNDRED AND FIFTH ARTICLE OF WAR

36.15 Application of statute. The one hundred and fifth article of war (41 Stat. 808; 10 U.S.C. 1577) applies only where the loss or damage has been caused by depredation, wilful misconduct or such reckless disregard of property rights as to carry an implication of guilty intent. It does not apply in cases of simple negligence, whether or not within the scope of employment of the offender. (See Op. J.A.G., Nov. 8, 1923, and Manuscript Op. J.A.G., Mar. 5, 1928. (R.S. 161; 5 U.S.C. 22) [Par. 2, AR 35-7080, Nov. 26, 1928] 36.16 General procedure. When a claim for damages arises under the one hundred and fifth article of war, the claimant should submit his claim to the commanding officer of the post, camp, station, or other unit of the Military Establishment within which or nearest adjacent to which the loss or damage occurred, as provided in § 36.6. Upon the receipt of such a claim, the commanding officer will refer it in the usual manner to a surveying officer or board of officers who

Page 24

will take the action prescribed in § 36.7. (Sec. 1, 41 Stat. 808; 10 U.S.C. 1577) [Par. 3, AR 35-7080, Nov. 26, 1928]

36.17 Only direct damages allowable. On claims arising under this statute, as in cases of damage incident to the training, practice, operation, or maintenance of the Army, direct damages only should be awarded. Indirect or consequential damages should not be considered. (See Op. J.A.G., Apr. 30, 1924.) (Sec. 1, 41 Stat. 808; 10 U.S.C. 1577) [Par. 5, ÁR 35-7080, Nov. 26, 1928]

AR

CROSS REFERENCE: For regulations stating that only direct damages to property injured by the Army are contemplated, see § 36.10.

PART 37-CLAIMS ON BEHALF OF THE UNITED STATES Sec.

Sec.

37.1 Reimbursement for public property 37.3 Method of ascertaining amount of lost, damaged, or destroyed. damage. 37.2 Recovery of property unlawfully 37.4 Demand upon defendant for settledetained by civilians.

ment of claim.

37.5 Offer of compromise settlement.

Section 37.1 Reimbursement for public property lost, damaged, or destroyed. The Chief of Finance will take action to secure reimbursement for public property lost, damaged, or destroyed through the fault or neglect of any person concerned. (Sec. 9, 41 Stat. 766; 10 U.S.C. 172) [Par. 3 (e) (3), AR 35-5, June 6, 1930]

37.2 Recovery of property unlawfully detained by civilians. Whenever information is received that animals or other property belonging to the military service of the United States are unlawfully in the possession of any person not in the military service, the property officer or other proper officer will promptly cause proceedings to be instituted and diligently prosecuted before the civil authorities for the recovery of the property and, if the same has been stolen, for the arrest, trial, conviction, and due punishment of the offender and his accomplices.

Upon satisfactory information that such United States property unlawfully in the possession of any party or parties is likely to be removed beyond the jurisdiction, concealed, or otherwise disposed of before the necessary proceedings can be had in the proper civil tribunal for its recovery, the post or detachment commander will, as hereinafter provided, accomplish its immediate recovery. In the event the property consists of clothes, arms, military outfits, or accouterments furnished by the United States to any soldier, the Federal statutes (R.S. 3748; 10 U.S.C. 1316; sec. 2040, M.L. 1929) authorize such property to be seized and taken from any person, not a soldier or officer of the United States, by any officer, civil or military, of the United States. Other Government property may be seized under the authority of a search warrant, and in these cases this procedure will be followed wherever practicable. The Federal statutes, Act of June 15, 1917 (40 Stat. 228; 18 U.S.C. 611), provide that a search warrant may be issued by a judge of a United States district court or by a judge of a State or Territorial court of record, or by a United States Commissioner for the district wherein the property sought is located. This search warrant is issued upon probable cause and is supported by an

Page 25

affidavit naming or describing the person and particularly describing the property and place to be searched. If a search warrant is not immediately available or the particular circumstances require immediate action, the post or detachment commander will at once cause the property to be seized, provided that such seizure can be accomplished without committing a breach of the peace or a trespass on private property, tendering to the party, if any, in possession or custody of the property in dispute a receipt or certificate showing that the property in question has been seized as belonging to the United States, and will hold the property seized subject to any legal proceedings that may be instituted by other parties.

Persons caught in the act of stealing public property will be summarily arrested by the troops and turned over to the civil authorities for trial.

When public property has been lost or stolen and the officer responsible therefor has failed to regain possession of it by the ordinary means, the post commander may authorize the property officer to offer a reward for its recovery.

Such a reward will not exceed one-fifth of the value of the property lost or stolen, and in no case will it exceed $50.

If the property has been stolen, the reward will include payment for such information as the claimant possesses in regard to the larceny and recovery of the property as may lead to a conviction of the guilty party. (R.S. 3748, 40 Stat. 228; 18 U.S.C. 611, 10 U.S.C. 1316) [Par. 16, AR 35-6640, March 17, 1938]

37.3 Method of ascertaining amount of damage. (a) In case the damaged article of Government property (e. g., motor vehicle, building, etc.) is recommended to be repaired and continued in service the amount of damage will be determined as follows: (1) Ascertain the total cost of new material and labor and any other incidental expenses incurred or that will be incurred in making the repairs.

(2) From the total cost of the repairs thus obtained subtract the sum of the salvage value, if any, of the damaged parts removed plus the enhancement in value of the article by reason of the repairs and installation of new parts.

(3) The difference will be the net amount of damage to the United States for which claim should be made.

(b) In case the damaged article of Government property is not recommended to be repaired and continued in service, the amount of the damage will be the fair value of the article immediately prior to the time of the damage, less its salvage value in the damaged condition. In determining the fair value of the article before the damage, the surveying officer will take into consideration the original cost price, date of purchase, period of use, and depreciation in the service. (R.S. 161; 5 U.S.C. 22) [Par. 3, AR 35-7220, Mar. 10, 1936]

37.4 Demand upon defendant for settlement of claim. When preliminary investigation indicates that the damage is due to the fault of a commercial concern or its agents, or individuals outside of the military service, such result will be reported immediately to the

Page 26

commanding officer, who, if he approves, will cause demand to be made at once upon the defendant, and confirmed in writing, to have the necessary repairs or replacement made to the satisfaction of the United States. After completing the investigation, ascertaining the amount of the damage, and fixing the responsibility therefor, the surveying officer will, except in cases where the damage has been completely repaired by or on behalf of the person responsible for it, or when settlement in full has been made in compliance with the demand made under the above, cause a demand in writing for the settlement in full of any claim found to exist in favor of the Government to be presented by an officer or other representative to the defendant. This demand will contain a full description of the claim and of the grounds thereof. If, as result of such demand the defendant makes payment of the full amount demanded or makes the necessary repairs or replacement to the satisfaction of the United States, the commanding officer is authorized on request to issue to such defendant a receipt or statement in writing in substantially the following form:

19__.

(Name of defendant) (has this date paid the sum of $------ -)1 (has this date made complete replacement or repairs)' covering the damage found by the surveying officer to be due from the said (name of defendant) as result of (his or its)' damage to or destruction of the following described property (description of property), property of the United States, as set out in the report of the surveying officer which report was approved on the day of

1 Strike out inapplicable words.

(R.S. 161; 5 U.S.C. 22) [Par. 4, AR 35–7220, Mar. 10, 1936] 37.5 Offer of compromise settlement. The defendant will not be invited, in the initial demand prescribed in § 37.4, to submit any offer other than in full settlement of the claim as presented. Should he admit liability but consider the demand excessive as to amount or beyond his ability to liquidate within a reasonable time, or should he disclaim liability but evidence a willingness to liquidate the account if reduced in amount, he may be invited to offer a compromise settlement. In such cases, if compromise be offered, the defendant will be advised that the offer must be accompanied by a certified check able to the Secretary of the Treasury in the amount of such offer in order that it may receive consideration under the law. The defendant will also be informed that if his offer is accepted by the Secretary of the Treasury under the provisions of section 3469 of the Revised Statutes (31 U.S.C. 548) his liability to the Government in respect to the matter for which such offer is made will be terminated, and that if his offer is not accepted the amount of his check will be promptly returned to him by the Treasury Department. (R.S. 161; 3 U.S.C. 22) [Par. 5, AR 35-7220, Mar. 10, 1936]

pay

CROSS REFERENCE: For regulations of the Department of the Treasury relating to the acceptance of certified checks in payment of all public dues, see 31 CFR Part 200.

Page 27