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that a declaration of war by Congress was necessary before there could be field duty for officers of the Army. The term "in the field" or field duty" is used by the War Department in this sense to recent dates: In 3 Comp. Gen. 272, 273, October 31, 1923, it was said:

The term "field duty" as used with respect to the organization of the Army conveys the idea of operation against an enemy, actual or potential. This is the sense in which the term is used in the act of June 10, 1922, 42 Stat. 628, authorizing rental allowance. Duty with an organization moving from one post to another by marching in time of peace and in the home country is not field duty for the purpose of rental allowance. (See also 17 MS. Comp. Gen. 927, January 27, 1923; 22 id. 185, June 7, 1923.)

In 14 Op. Atty. Gen. 22, it was said:

To determine when an army is "in the field" is to decide the question raised. These words imply military operations with a view to an enemy. Hostilities with Indians seem to be as much within their meaning as any other kind of warfare. * * When an army is engaged in offensive or defensive operations, I think it safe to say that it is an army "in the field." (See also 61 MS. Dec. Sec. Comp. 80, quoted in part in 25 MS. Comp. Gen. 279; Dig. Op. J. A. G. 1912, p. 151.)

The Judge Advocate General of the Army has also held:

I A5a. No formal declaration of war by Congress or proclamation by the President is necessary to define and characterize an Indian war. It is sufficient that hostilities exist and military operations are carried on.

I B4. Held that a war status existed in behalf of officers and enlisted men of the Army of the United States who were in China beginning with May 26, 1900. This gave them the increased allowance of pay for service in time of (Dig. Op. J. A. G. 1912, p. 1055.)

war.

Within the field of operations of the expeditionary forces in Mexico it was "time of war within the meaning of the fifty-eighth article of war. (Dig. Op. J. A. G. 1918, p. 378.)

In 5 Comp. Gen. 443 it was held that an officer of the Marine Corps, without dependents, who as a member of a marine detachment on board a naval vessel served with a landing force to protect and defend the international settlement at Shanghai, China, against possible attack by Chinese warring factions is, while performing such duty, on “field duty" within the meaning of section 6 of the act of June 10, 1922, as amended by the act of May 31, 1924, 43 Stat. 251, and is not entitled to rental allowance.

The paymaster of the Marine Corps, in his letter to you dated May 20, 1927, attached to your letter, states:

10. These forces of the Marine Corps are understood here to have been sent to the Republic of Nicaragua, a Government friendly to the United States, solely at the request of that friendly Government and solely to assist it in there preserving public order within the Republic of Nicaragua, and to protect the lives and property of American citizens sojourning there.

* * *

It is also understood that during the period in question there was an organized armed rebellion against the Government in Nicaragua, and that there was actual fighting between the two forces. Under such circumstances it would seem that such rebel forces might look upon the military forces of the United States landed in Nicaragua for the purpose stated as their enemy and attack them accordingly.

In fact, it has been reported that such attacks have been made, resulting in several marines being killed or wounded and more than 300 of the rebels killed or wounded. But it is unnecessary to determine any question of the international relation between the United States and Nicaragua with respect to operating against an enemy. The military orders for service were for expeditionary work. There have been others of a similar character in general and all classed as field duty-Vera Cruz, 1914; Mexico, 1916.

It must be held, therefore, that the duty on which the expeditionary force in Nicaragua was engaged during the period in question was field duty within the meaning of section 6 of the act of June 10, 1922, as amended by the act of May 31, 1924. Upon review the settlements are sustained.

(A-19318)

PROPERTY, PRIVATE-LOST IN THE NAVAL SERVICE

The act of October 6, 1917, 40 Stat. 389, authorizes reimbursement of naval personnel for loss or destruction of or damage to their personal property in the naval service, under the conditions and limitations therein named, only where such loss, destruction, or damage is due to "the operations of war or by shipwreck or other marine disaster," and is no authority for reimbursing an enlisted man for a peace-time loss of private property in a fire at a shore station.

Comptroller General McCarl to the Secretary of the Navy, September 15, 1927:

There is for consideration the matter set forth in your letter of July 21, 1927, as follows:

The Bureau of Supplies and Accounts has reported that a payment made by Lieutenant H. R. Dye, Supply Corps, U. S. Navy, in the sum of $90.03 as reimbursement for personal property lost in a fire at the U. S. naval training station, Hampton Roads, Va., on April 21, 1926, has been suspended by the General Accounting Office, the suspension reading as follows:

"6 287 Suspended in part: C&SS fund, $90.03. Hugh George Walker, Ph. M. 1c. Credited in sundry items column $90.03 as a claim for reimbursement for personal property lost in a marine disaster. It appears from the claim that the property lost was destroyed in a fire at the U. S. naval training station, Hampton Roads, Va., occurring on or about April 21, 1926, and that such loss was due to the attention of saving property of the United States. The claimant is not entitled to the above-mentioned credit under the act of Oct. 6, 1917. A fire at a shore station can not be regarded as within any of the causes named by the act, shipwreck, or other marine disaster or operations of war. See decision of the Comptroller General dated Sept. 2, 1921 vol. 1 p. 105."

The suspension quoted above states in part that "The claimant is not entitled to the above-mentioned credit under the act of Oct. 6, 1917. A fire at a shore station can not be regarded as within any of the causes named by the act, shipwreck, or other marine disaster or operations of war." The claim of Hugh George Walker, Pharmacist's Mate, first class, U. S. Navy, was submitted on S. and A. Form No. 378, and stated that the loss of claimant's property was due to "the attention of saving property of the United States and was without fault or negligence." An investigation was made of the facts in this case and as a result it was determined that Walker's effects were lost "in consequence of his having

given his attention to the saving of * * * property belonging to the United States which was in danger at the same time and under similar circumstances." It was on this basis that the Chief of the Bureau of Navigation approved the claim.

*

The provisions of the act of October 6, 1917, supra, that reimbursement shall be made to "officers, enlisted men, and others in the naval service of the United States as may have suffered, or may hereafter suffer, loss or destruction of or damage to their personal property and effects in the naval service * where it appears that the loss, destruction, or damage of or to the private property of the claimant was in consequence of his having given his attention to the saving of the lives of others or of property belonging to the United States which was in danger at the same time and under similar circumstances" have no connection whatever, in the opinion of the Navy Department, with the other provisions of the act which refer to the operations of war, shipwrecks, or other marine disasters. It seems obvious that if the clause or where it appears that the loss, destruction, or damage of or to the private property of the claimant was in consequence of his having given his attention to the saving of the lives of others or of property belonging to the United States which was in danger at the same time and under similar circumstances" refers to property lost "due to the operations of war or by shipwreck or other marine disaster" such clause is entirely unnecessary as personnel can be reimbursed for property lost under the latter conditions regardless of whether they are engaged in saving lives or public property. Under the circumstances, it is the opinion of the Navy Department that the settlement of the claim of Hugh George Walker, Pharmacist's Mate, first class, U. S. Navy, is authorized by the act of October 6, 1917.

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The citation in the suspension, viz, 1 Comp. Gen. 104, is clearly not in point. This decision refers to the payment of civilian employees for property lost at the naval training station, Great Lakes, Ill. It does not appear from the facts reported that these employees were engaged in saving Government property at the time the loss of their own property occurred and furthermore the decision was principally based on the fact that civilian employees are not included in the term "others in the naval service."

Reconsideration of the disallowance in the accounts of Lieutenant H. R. Dye, Supply Corps, U. S. Navy, is requested.

The act of October 6, 1917, 40 Stat. 389, provides:

That the Paymaster General of the Navy be, and he is hereby, authorized and directed to reimburse such officers, enlisted men, and others in the naval service of the United States as may have suffered, or may hereafter suffer, loss or destruction of or damage to their personal property and effects in the naval service due to the operations of war or by shipwreck or other marine disaster when such loss, destruction, or damage was without fault or negligence on the part of the claimant, or where the private property so lost, destroyed, or damaged was shipped on board an unseaworthy vessel by order of an officer authorized to give such order or direct such shipment, or where it appears that the loss, destruction, or damage of or to the private property of the claimant was in consequence of his having given his attention to the saving of the lives of others or of property belonging to the United States which was in danger at the same time and under similar circumstances. And the liability of the Government under this act shall be limited to such articles of personal property as the Chief of the Bureau of Navigation of the Navy Department, with reference to the personnel of the Navy, or the Major General Commandant of the Marine Corps, with reference to the personnel of that corps, in his discretion, shall decide to be reasonable, useful, and proper for such officer, enlisted man, or other person while engaged in the public service in line of duty, and the certificate of said chief of bureau or Major General Commandant, as the case may be, shall be sufficient voucher for and shall be final as to all matters necessary to the establishment and payment or settlement of any claim filed hereunder; and the action of the said chief of bureau or Major General Commandant, as the case may be, upon all claims arising under this act shall be final, and no right to prosecute a claim or action in the Court of Claims or in any other court of the United States, or before any accounting officer of the United States, or elsewhere, except as herein provided, shall accrue to any person by virtue of this act: And provided further, That the term

6752°-28-14

*

"in the naval service," as herein employed, shall be held to include service performed on board any vessel, whether of the Navy or not, provided the claimant is serving on such vessel pursuant to the orders of duly constituted naval authority:

*

While the legislation in question provides that the certificate of the Chief of the Bureau of Navigation shall be final as to all matters necessary to the establishment and payment or settlement of any claim filed thereunder, the primary question of whether there is a claim within the general purview of the act as to which such administrative officer may legally issue a certificate is one which must be determined by the accounting officers when called upon to allow credit in a disbursing officer's account for expenditures based on such certificate. A-9426, April 10, 1926, 56 MS. Comp. Gen. 411. See also 1 Comp. Gen. 104; 5 id. 887.

The construction adopted in the settlement of accounts, and which you now question, is that it is only a "loss or destruction of or damage to their personal property and effects in the naval service due to the operations of war or by shipwreck or other marine disaster when such loss, destruction, or damage" occurs under one of the three conditions thereafter named. The language of the act fairly supports such construction, and is in consonance with the expressed purpose of the act in the request of the department for the legis lation and in the report of the committee of the House of Representatives having the matter in charge. On July 7, 1917, the then Secretary of the Navy addressed a letter to the Speaker of the House of Representatives, quoting the then existing laws, sections 288, 289, and 290, Revised Statutes, and the act of March 2, 1895, 28 Stat. 962, providing for reimbursement for losses of personal property by persons in the naval service, and pointing out that under such laws officers and enlisted men in the naval service serving on board merchant vessels as armed guards could not be reimbursed for the loss of their clothing and other personal effects when such vessels were sunk by the enemy, for the reason that such vessels were not in the employ of the United States as required by the Revised Statutes and because the act of March 2, 1895, specifically excluded losses sustained in time of war. The Secretary's letter proceeded:

Moreover, under the existing law much delay is necessarily involved in securing a reimbursement for lost effects. The draft of the bill which I am submitting to you provides for the prompt reimbursement in kind for such articles as are destroyed and which are customarily issued to the service, and for reimbursement in cash for such articles as are not issued. The necessity for this may be readily perceived from the fact that it is easily conceivable that a member of a gun's crew might be successively in two or more sinkings. A lawful claim for reimbursement would be of small value to a man needing clothing and outfit at once with which again to go to sea, when settlement of such claim must needs be postponed several months. These men do not, of course, have much reserve capital.

In conclusion the letter stated:

I have considered it desirable that all the law on this subject be embodied in one concise provision, hence have not suggested amendment of the existing acts on the subject.

The Secretary's letter requesting the legislation was quoted verbatim in the report of the Committee on Naval Affairs with the recommendation that the bill be enacted into law. It thus appears that what was intended was to reenact the provisions of existing law in one concise provision with modifications to provide for a more prompt method of reimbursement, to provide for the inclusion of losses of naval personnel on duty on vessels not in the employ of the United States, and to provide for reimbursement for war-time losses excluded by the act of March 2, 1895. Nothing was said, either directly or by inference, of a purpose to expand the general class of cases theretofore provided for to include losses at shore stations. Sections 288, 289, and 290, Revised Statutes, provided for limited reimbursement for losses "on board of any vessel in the employ of the United States, which, by any casualty, or in action with the enemy, has been or may be sunk or otherwise destroyed." The act of March 2, 1895, provided for reimbursement for losses—

of the private property belonging to officers, petty officers, seamen, and others in the naval service of the United States which has been or may hereafter be lost and destroyed in the naval service by shipwreck or other marine disaster, under the following circumstances:

First. When such loss or destruction was without fault or negligence on the part of the claimant.

Second. Where the private property so lost or destroyed was shipped on board an unseaworthy vessel by order of any officer authorized to give such order or direct such shipment.

Unquestionably, this enactment did not include losses at a shore station, but only losses "by shipwreck or other marine disaster" as limited by the succeeding language. So far as the class of cases intended for relief is concerned, it is material to note that the act of October 6, 1917, follows almost word for word the quoted part of the act of March 2, 1895, except that the whole matter is contained in one sentence, the term "operations of war" is included with shipwreck or other marine disaster as basic circumstances entitling to relief and a provision is added for relief" where it appears that the loss, destruction, or damage of or to the private property of the claimant was in consequence of his having given his attention to the saving of the lives of others or of property belonging to the United States which was in danger at the same time and under similar circumstances." The whole question resolves itself into whether Congress intended the term "the loss, destruction, or damage" contained in this added provision to refer back to the general term "loss or destruction of or damage to their personal property and effects in