should be deducted and payment of the balance tendered the payee, who, if not satisfied, may accept the payment under protest and file claim in the General Accounting Office, either directly or through military channels, for a refund of the amount deducted. (See 7 Comp. Gen. 537.) Where a contract for furnishing water provided for payment therefor at certain specified meter rates, with discount for prompt payment, the contractor is entitled to the full specified meter rates upon failure of the Government to make payment within the time specified for the allowance of discount. (See 12 Comp. Dec. 274, 16 Comp. Dec. 151.)* [Par. 2, AR 35–6200, Nov. 30, 1929] 35.30 Partial payments. Partial payments are authorized under a contract for construction of a number of airplanes and spare parts which provides for such payments as the work progresses and contains a provision that title to all property for which any partial payments are made prior to completion of the contract shall vest in the Government in its condition at the time the partial payments are made, notwithstanding a provision in the contract giving the Government the right to reject upon final inspection, such a provision not operating to divest the title acquired by the Government to the materials and supplies on which partial payments have been made. (See 1 Comp. Gen. 143.)* [Par. 3, AR 35-6200, Nov. 30, 1929] Sec. PART 36-CLAIMS AGAINST THE UNITED STATES Sec. Reward and expenses for enlisted 36.9 General procedure. 36.1 Payment of rewards for appre- 36.10 Conditions precedent to payment. 36.11 Entitled to direct damages only. Damages to persons and private property resulting from the operation of aircraft 36.12 General. 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. Claims under the one hundred and fifth article of war 36.15 Application of statute. 36.16 General procedure. 36.17 Only direct damages allowable. CROSS REFERENCE General Accounting Office: See Accounts, 4 CFR Chapter I. REWARD AND EXPENSES FOR ENLISTED MEN ABSENT WITHOUT LEAVE OR IN DESERTION Section 36.1 Payment of rewards for apprehension of deserters, etc., discontinued. Pending further instructions, payment of *For statutory citation, see note to § 35.1. Page 19 a reward or reimbursement of expenses for the apprehension and delivery of deserters, draft deserters, or men absent without leave, will not be made from the appropriation "Apprehension of deserters, and so forth", and the maximum amount payable as a reward or reimbursement of expenses for the apprehension of an escaped military prisoner is $25, which is the maximum amount provided in that appropriation for the purpose. [Cir. No. 38, WD, 1934] *§§ 36.1 to 36.8, inclusive, issued under the authority contained in R.S. 161; 5 U.S.C. 22. GENERAL PROVISIONS 36.2 Definition. The word "claims" as used in the regulations in this part refers only to those demands for payment submitted by individuals, companies, or corporations, which do not arise under the ordinary obligations entered into by the War Department or its purchasing agents in the procurement of services or supplies.*+ [Par. 1] †The source of §§ 36.2 to 36.8, inclusive, is Army regulations 35-7020, Secretary of War, Mar. 16, 1936. 36.3 Classification. Claims may be divided into two general classes (1) those for damages to persons or property arising through the activities of the Army or War Department, and (2) those arising under contractual relations. No provision has been made for the settlement by the War Department of claims for damages for personal injury, except in the case of personal injury inflicted in the operation of aircraft, as provided in the annual appropriation acts.*† [Par. 2] 36.4 The principle of law involved. A principle of law held by the legislators of the United States from the time of the foundation of the Union is of importance in the consideration of any claim. The principle is that, unless so entitled under a contract, no person can have a legal claim against the United States for personal injuries or damage to property. In general, Congress has held consistently to this principle and, except in certain classes of cases enumerated in § 36.5, it is necessary for a claimant who seeks relief to ask Congress to grant him compensation as an act of grace.*t [Par. 3] 36.5 Laws granting authority for the settlement of claims by the Secretary of War. The authority of the Secretary of War to settle claims is granted in certain laws quoted hereinafter in the body of the regulation to which they relate, but mentioned briefly here. (a) The Annual Appropriation Act approved June 30, 1922 (42 Stat. 725; 31 U.S.C. 223), and subsequent annual appropriation acts authorize the payment of claims for damages to and loss of private property, not exceeding $500 in amount, incident to the training, practice, operation, or maintenance of the Army. (b) The Annual Appropriation Act of June 30, 1921 (42 Stat. 73; 31 U.S.C. 224), and annual appropriation acts since then authorize the payment of claims for damages not exceeding $250, to persons and private property resulting from the operation of aircraft. (c) The Act of December 28, 1922 (42 Stat. 1066; 31 U.S.C. 215), authorizes the head of each executive department to consider, adjust, and determine any claims, not in excess of $1,000, accruing after Page 20 *For statutory citation, see note to § 36.1. April 6, 1917, on account of damages to or loss of privately owned property caused by the negligence of any officer or employee of the Government acting within the scope of his employment. Under this law also payment is to be made from appropriations subsequently provided by Congress. (d) Claims for damages arising from use and occupancy of real estate under an express or implied contract are not damage claims in the ordinary sense and there is no specific law providing for their settlement. When they can be paid without action by Congress, they are settled by the General Accounting Office out of available appropriations. (e) The River and Harbor Act of June 5, 1920 (41 Stat. 1015; 33 U.S.C. 564), gives the Chief of Engineers, with the approval of the Secretary of War, authority to adjust and settle claims for damages to property caused by agencies of the United States engaged upon river and harbor works when such claims do not exceed $500 in amount. It also authorizes the Chief of Engineers, with the approval of the Secretary of War, to report to Congress any claim in excess of $500 upon which a satisfactory agreement has been reached between the Chief of Engineers and the claimant. Regulations covering the application of this Act are given in paragraph 795, Orders and Regulations, Office, Chief of Engineers, April 30, 1933.* (f) The Act of August 24, 1912 (37 Stat. 586; 5 U.S.C. 208), authorizes the Secretary of War to consider, ascertain, adjust, and determine the amounts due on all claims for damages to and loss of private property when the amount of the claim does not exceed the sum of $1,000 occasioned by heavy gun fire and target practice of troops, and for damages to vessels, wharves, and other private property, found to be due to maneuvers or other military operations for which the Government is responsible, and to report the amounts so ascertained and determined to be due the claimants to Congress at each session thereof, through the Treasury Department (Director of the Budget) for payment as legal claims out of appropriations that may be made by Congress therefor.*+ [Par. 4] 36.6 Action to be taken by claimant. The claimant will be required to submit a sworn statement over his signature and address setting forth all the facts and circumstances in connection with the damage claimed, including the nature and extent, the date incurred, the agency by which caused, if known, and the amount of the claim. Statement will be accompanied by such evidence as is available, including a receipt for the payment of repairs or replacement or estimate of cost thereof.** [Par. 6] 36.7 Action to be taken by board of officers. In all claims of the classes arising under the provisions of §§ 36.9-36.17, the following procedure will govern: (a) The board of officers will secure all available evidence on behalf of both the Government and the claimant, when practicable under oath and by oral testimony rather than by deposition. Claimant These orders and regulations may be obtained from The Adjutant General, Washington, D. C. *For statutory citation, see note to § 36.1. Page 21 should, when practicable, be permitted to cross-examine the Government witnesses. In cases of automobile or maritime accidents, pertinent diagrams showing relative positions and distances will be submitted. (b) All evidence will be reduced to writing and a transcript thereof, certified as correct by the senior member of the board, will be incorporated in the report of proceedings. (c) Based upon the evidence in the case the board of officers will arrive at "findings" and make "recommendations". (d) In arriving at the money value involved in the loss or damage, the following principles will govern: (1) The cost (or estimated cost) of restoring the property to the condition in which it existed before the loss or damage occurred will serve as a basis. (2) In no case will an allowance be made for repairs exceeding a reasonable value of the property immediately before the accident. In case of automobile accident, the data called for in Findings No. 11, as shown on War Department Form No. 30, will be considered in determining a reasonable value of the damaged car. (3) Deductions will be made for any improvement made in the restoration of the property, and for any salvage value and insurance collections which were or should have been realized. (4) The permanency of any parts which must be replaced in restoring the damaged property will be considered. Thus, an automobile tire is not expected to last through the life of a car, and when a tire three-fourths worn out is so damaged as to require replacement with a new tire, three-fourths of the value of the new tire should be deducted. Similarly, the degree of wear to which the parts of a car normally requiring frequent replacement have been subjected will be considered, and deductions made therefor where replacement with new parts is necessary. On the other hand, when it is necessary to replace parts (such as fenders or radiators) which normally would last throughout the life of a car, no deductions will be made on account of the degree of wear to which the original parts have been subjected. (e) The board of officers will not advise the claimant as to the action taken on his claim unless and until an award thereon is recommended, in which event the claimant will be advised that such recommendation for award is subject to approval or disapproval by higher authority, and a statement in writing will be obtained from him as to whether or not he will accept the award, if finally approved by competent authority, in full satisfaction of his claim, and if not, as to his reasons for not accepting. In no case will the board of officers advise the claimant that his claim has been disallowed.*t [Par. 8 (a)-(e)] 36.8 Soliciting of pension or other claims at posts, etc. The soliciting of pension or other claims against the United States on military reservations or at military posts, camps, or stations, including general hospitals, is prohibited. Civilian employees who give information with a view of aiding persons in soliciting such claims will be discharged.*t [Par. 10 (d) (4)] 5 Form No. 30 may be obtained from the Office of the Secretary of War, Washington, D. C. Page 22 *For statutory citation, see note to § 36.1. DAMAGES TO AND LOSS OF PRIVATE PROPERTY INCIDENT TO THE TRAINING, PRACTICE, OPERATION, OR MAINTENANCE OF THE ARMY 36.9 General procedure. When a claim for damages arises under the provisions of the annual War Department Appropriation Acts providing for the payment of claims not to exceed $500 in amount of damages to and loss of private property incident to the training, practice, operation, or maintenance of the Army, 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. (42 Stat. 725, 50 Stat. 448; 31 U.S.C. 223) [Par. 3, AR 35–7040, Dec. 30, 1924] 36.10 Conditions precedent to payment. In order to authorize payment of claims for damages to or loss of private property incident to the training, practice, operation, or maintenance of the Army, from the appropriations provided for that purpose, each of the five conditions set forth in the Act, namely that the damages must be ascertained by the War Department, the claim must not exceed the statutory amount of $500, the award therefor must be approved and its payment recommended by the Secretary of War, the owner of the property must be ready to accept the amount so awarded, approved, and recommended as in full satisfaction of his claim, and the settlement must be made by the General Accounting Office, Claims Division, must be met, and where there is a failure to meet any one of those conditions, such as the refusal of the owner of the property to accept the amount awarded by the board authorized to investigate the matter, after approval and recommendation by the Secretary of War, as in full satisfaction of his claim, the appropriation is not available for the payment of such damage claims. (42 Stat. 725, 50 Stat. 448; 31 U.S.C. 223) [Par. 4, AR 35-7040, Dec. 30, 1924] 36.11 Entitled to direct damages only. Under the Act of June 30, 1922 (42 Stat. 725; 31 U.S.C. 223), and similar provisions in the succeeding annual appropriation acts authorizing the payment of claims for damages to and loss of private property incident to the training, practice, operation, or maintenance of the Army, only direct damages to the property are contemplated, no provision having been made therein for compensation to the owner of the property for any inconvenience or consequential loss occasioned him by reason of the direct damages to his property, such as reimbursement for the hire of another automobile during the period his damaged automobile is undergoing repairs. (42 Stat. 725, 50 Stat. 448; 31 U.S.C. 223) [Par. 5, AR 35-7040, Dec. 30, 1924] DAMAGES TO PERSONS AND PRIVATE PROPERTY RESULTING FROM THE OPERATION OF AIRCRAFT 36.12 General. Claims not exceeding $250 in amount for damages to persons and private property resulting from the operation of aircraft at home and abroad may be settled out of the funds appropriated hereunder, when each claim is substantiated by a survey Page 23 |