File #714: "WWII Office of Civilian Defense Civil Air Patrol GM-126.pdf"

WWII Office of Civilian Defense Civil Air Patrol GM-126.pdf

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. * 26 April 1944
S U B J E C T: C A P G u a r d s f o r M i l i t a r y A i r c r a f t ' .



1. Various" mem'berfl'of Civl^^Air Patrol have from time to time "been

called upon "by Army pilots to guard Army planes which have been grounded at

points where no' military ^uard facilities are avaiiahleV In connection with
such work, questions have arisen as to the liability of a CAP-Unit or a CAP

guard for dama^ done to the plana or to trespassers, and as to the exact
status of CAP members when serving as ^iards.

2. f These questions have been prese^nted to the Air j^idge Advocate for
decision and your attention is called to the following ruling:
"The employment of civilian guards under such circumstances, in

the absence of available enlisted personnel, is authorized by the pro
visions of AR>35-6300, Cl, 8 a, e. Payment is authorized at the rate
paid for similar services in the vicinity and should be accomplished by

the use of Form 15, which is the Form prescribed for use of aircraft

crews in making emergency purchases and other expenditures during cross

country flints (AAF Regulation l^o. 15-15, paragraph 15).
While performance of 'guard duty is not a prescribed functipn of
the Civil Air Patrol under provisions of AAF Regulation No, 20-18 cover
ing organization of the Patrol, this office is advised by Colonel
Johnson, the National Commander, that he has authorized assignment of

members of different Patrol Squadrons to such work. ^

It results that, although the personnel performing guard duty^are
members of the Civil Air Patrol, they must be'considered as Government

Employees, while serving as guards under the detailed circumstances, for
<?hich service they are paid compensation.

In light of the foregoing circumstances and pertinent regulations,
this office is of the following opinion on the questions raised;
a. If the guarded Government-owned pl^es are damaged by
fire or accident, the only liability would be that of the guards
as individuals, depending on the degree of neg]^^gence or other
basis of liability involved,.

b« Liability of the Crqvernment to third parties injured or
killed by these guards while acting in line of duty would be

governed by the Domestic Claims Act (Public Law 112 - 78th Cong.),
providing for settlement of claims in an amount not in exces-s of

$1,000»00 for pergonal injury or death\caU8ed "by civilian employees
of the War Department or of the Army while acting within the scope

of their employment. Claima in excess of $1»000.00 may, under the
provisions of the Act, "be reported "by the\5ecretary of War to
Congress for its consideration.

c. Under AGO Letter 250,4 (l6 Fe"bruary 1944) OB-S-A, it is
provided that no general court-martial shall try any civilian suh-

Ject to military law under Article of War 2(d) until the appointing
authority shall have recei-ved special authoriz^ition in each instance
from the Secretary of War. Under the provisions of this letter, the
Judge Advocate General is directed to sign, authenticate, and issue
or withhold any such authorization "by .the authority of and for the
S e c r e t a r y o f Wa r. I t i s b e l i e v e d t h a t t h e s e g u a r d s w o u l d h e c o n

sidered as "persons accompanying or serving with the Armies of the
United States in the field," within the provisions of Article of

War 2(d) and hence subject to military law. However, on the assump
tion that they are so included, they could not, "be tried by courtmartial without sanction of the Secretary of War under the prov .





d. On the question of carrying firearms to and from places of
d u t y, i t i s t h e o p i n i o n o f t h i s o f fi c e t h a t i n c a s e s w h e n t h e g u a r d s

are ordei;ed to carry arms by competent Government authority to and

from work, there would be no ground for convicting them of illegally

being in possession of weapons. In the absence of such orders or
a u t h o r i t y, t h e y w o u l d b e r e q u i r e d t o h a v e n e c e s s a r y p e r m i t s f r o m

State or Municipal authorities."
3. It should be noted that the above ruling is, predicated on the fact
that the Job of guarding Army aircraft at the request of Array pilots will in .

all cases be undertaken by CAP members on an individual basis. In no instance
should a.particular job be undertaken by a Unit as such, and the Unit should
have no part in arrangements for the performance of such a job or for payment

thereof. All such arrangements should be made individually by the CAP members*
who are actually going to perform the job.
4. The attention of individuals who may perform such jobs is invited
to the last paragraph of the Air Judge Advocate's Buling quoted above to the
effect that they should not carry arms unless proper arrangements have been

worked out with, or necessary permits have been obtained from, State or
Sy direction of National Commander JOKIISON:

H E I O T A . H AV G O O D

Captain, Air Corps
Special Assistant