B-168984, MAR. 10, 1970

B-168984, MAR. 10, 1970

PAY--WITHHOLDING--INADVERTENT--FINANCIAL LOSSES CLAIM CLAIM OF AIR FORCE (AF) MEMBER FOR REIMBURSEMENT OF FINANCIAL LOSS (REPOSSESSION OF CAR AND DEFICIENCY) ALLEGEDLY SUFFERED AS RESULT OF AF'S FAILURE TO MAKE TIMELY PAYMENTS OF PAY AND ALLOWANCES FOR 5 MONTHS, UPON CLAIMANT'S TRANSFER TO ENGLAND AND REQUEST FOR CHANGES IN ALLOTMENT, OFFERS NO LEGAL BASIS FOR PAYMENT NOR DOES IT CONTAIN SUCH UNUSUAL ELEMENTS OF EQUITY AS WOULD WARRANT REPORTING TO CONGRESS AS MERITORIOUS CLAIM SINCE THERE ARE OTHER CASES WHERE MEMBERS HAVE SUFFERED FINANCIAL HARDSHIP CAUSED BY DELAY IN ADJUSTING PAY ACCOUNT OR DELAYS OCCASIONED BY ALLOTMENT CHANGES, AND REIMBURSEMENT TO CLAIMANT WOULD CONSTITUTE PREFERENTIAL TREATMENT DENIED OTHERS IN SIMILAR CIRCUMSTANCES. MOREOVER, RECORD EVIDENCED CLAIMANT WAS NOT PAID FOR 2 MONTHS ONLY.

TO SERGEANT JOSEPH E. ROSE:

REFERENCE IS MADE TO YOUR CLAIM FOR REIMBURSEMENT FOR LOST EQUITY ($798.76) YOU HAD IN A 1965 CHEVROLET IMPALA WHICH YOU SAY WAS REPOSSESSED BY THE GENERAL MOTORS ACCEPTANCE CORPORATION IN MAY 1969, PLUS A DEFICIENCY ($375.60) CHARGED AGAINST YOU, A TOTAL AMOUNT OF $1,174.36. YOU CONTEND THAT THIS FINANCIAL LOSS RESULTED FROM THE FAILURE OF THE AIR FORCE TO PAY YOU ANY PAY AND ALLOWANCES FOR A PERIOD OF FIVE MONTHS.

IT APPEARS FROM THE RECORD BEFORE US THAT THE DEPARTMENT OF THE AIR FORCE DENIED YOUR FINANCIAL LOSS CLAIM BECAUSE THERE IS NO STATUTORY AUTHORITY TO PAY A CLAIM OF THIS NATURE. HOWEVER, ON JANUARY 2, 1970, THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, TRANSMITTED YOUR CLAIM TO THIS OFFICE FOR CONSIDERATION AS A MERITORIOUS CLAIM UNDER THE PROVISIONS OF THE MERITORIOUS CLAIMS ACT OF 1928, 45 STAT. 413, 31 U.S.C. 236. TRANSMITTING YOUR CLAIM HERE THE AIR FORCE REPORTED THAT:

"IN MAY 1969, CLAIMANT WAS FORCED TO ALLOW THE GENERAL MOTORS ACCEPTANCE CORPORATION TO REPOSSESS HIS 1965 CHEVROLET IMPALA. THIS REPOSSESSION WAS DUE TO NOT RECEIVING ANY PAY FOR FIVE MONTHS. ON 15 DEC 1968 CLAIMANT REQUESTED A $110.00 ALLOTMENT CHECK TO HIS AUNT TO BE CANCELLED. HE ALSO REQUESTED A $68.00 ALLOTMENT TO HIS WIFE FOR CAR PAYMENTS. THIS REQUEST WAS LOST AND IT WAS NECESSARY FOR HIM TO REACCOMPLISH THE REQUEST IN JAN 1969. HIS WIFE DID NOT RECEIVE THE FIRST CHECK UNTIL 31 MAY 1969. ALSO SHE DID NOT RECEIVE HER CLASS Q ALLOTMENT CHECK UNTIL MAR 1969. AS A RESULT, HE HAD NO FUNDS WITH WHICH TO MAKE CAR PAYMENTS. HE TRIED TO BORROW MONEY FOR THE PAYMENTS, BUT WAS TURNED DOWN. HE WROTE TO THE FINANCE COMPANY AND TOLD THEM OF HIS PAY SITUATION AND ASKED FOR AN EXTENSION, WHICH WAS REFUSED. HIS CAR WAS REPOSSESSED; HE LOST $798.76 EQUITY AND HAS A $375.60 DEFICIENCY BALANCE AGAINST HIM. A TOTAL LOSS OF $1174.36."

THE ABOVE REPORT IS SUBSTANTIALLY THE SAME AS ALLEGED IN YOUR CLAIM. ADDITION, YOU STATE THAT WHEN YOU DEPARTED ALTUS AIR FORCE BASE, OKLAHOMA, ON NOVEMBER 12, 1968, YOU RECEIVED NO ADVANCE TRAVEL PAY BUT THAT UPON ARRIVAL AT YOUR NEW DUTY STATION, RAF, WETHERSFIELD, ENGLAND, ON DECEMBER 15, 1968, YOU RECEIVED $261 BASED ON ENDORSED TRAVEL ORDERS ISSUED AT ALTUS AIR FORCE BASE. YOU SAY THAT AT THAT TIME YOU PLACED PART OF THE $261 IN THE "10% PROGRAM" (UNIFORMED SERVICES SAVINGS DEPOSIT PROGRAM) BEFORE YOU REALIZED THAT YOUR ALLOTMENT AND PAY ACCOUNT HAD BECOME SO CONFUSED. YOU CONTEND THAT THE REPOSSESSION OF YOUR CAR WAS THE DIRECT RESULT OF THE AIR FORCE NOT PAYING YOU YOUR PAY AND ALLOWANCES WHEN THEY BECAME DUE AND YOU CLAIM THAT THE AIR FORCE IS RESPONSIBLE FOR YOUR FINANCIAL LOSS.

IT APPEARS FROM THE RECORDS ACCOMPANYING YOUR CLAIM THAT ON DECEMBER 16, 1968--AFTER ARRIVAL AT YOUR NEW DUTY STATION OVERSEAS- YOU AUTHORIZED TWO SEPARATE ALLOTMENTS IN FAVOR OF MRS. LORETTA M. ROSE; NAMELY, A CLASS Q ALLOTMENT IN THE AMOUNT OF $100 A MONTH EFFECTIVE JANUARY 1, 1969, AND A CLASS E ALLOTMENT IN THE AMOUNT OF $68 A MONTH EFFECTIVE FEBRUARY 1, 1969. THE CLASS E ALLOTMENT, YOU SAY, WAS INTENDED TO TAKE CARE OF YOUR CAR PAYMENTS. COPIES OF COMMUNICATIONS IN THE FILE APPARENTLY ORIGINATING AT YOUR OVERSEAS STATION INDICATE SOME CONFUSION AND DELAY IN PROCESSING THE NEW ALLOTMENTS WHICH YOU AUTHORIZED UPON ARRIVAL AT THAT STATION.

YOU CONTEND THAT YOU DID NOT RECEIVE ANY PAY FOR A PERIOD OF FIVE MONTHS AND YOU SAY THAT "AFTER 15 DECEMBER 1968, I DID NOT RECEIVE ANY PAY UNTIL APRIL 1969." AN EXAMINATION OF YOUR MONTHLY EARNINGS STATEMENTS (AFAFC FORM 720-7) IN THE FILE FOR THE PAY PERIOD JANUARY THROUGH JULY 1969, SHOWS THAT IN JANUARY YOU WERE PAID $261; NO PAYMENTS WERE MADE TO YOU FOR FEBRUARY AND MARCH; AND PAYMENTS OF PAY AND ALLOWANCES WERE RESUMED IN APRIL AND CONTINUED THROUGH JULY 1969. THUS, IT APPEARS FROM YOUR MONTHLY EARNINGS STATEMENTS THAT IT WAS ONLY TWO MONTHS, FEBRUARY AND MARCH 1969, WHEN YOU ACTUALLY RECEIVED NO PAY AND ALLOWANCES AT YOUR NEW DUTY STATION.

DURING THE MONTH OF APRIL AND PRIOR TO THE TIME YOUR CAR WAS REPOSSESSED YOU WERE PAID A TOTAL OF $336, THE END OF THE MONTH CHECK BEING $60. YOUR WIFE DID NOT RECEIVE HER CLASS Q ALLOTMENT CHECKS UNTIL MARCH, MORE THAN ONE OF SUCH CHECKS MUST HAVE BEEN DELIVERED TO HER AT THAT TIME SINCE ALLOTMENTS TOTALING $428.75 WERE CHARGED AGAINST YOUR ACCOUNT FOR THE MONTHS JANUARY THROUGH MARCH 1969. APPARENTLY, NO ARREARS OF PAY AND ALLOWANCES WERE DUE YOU AS OF MAY 1, 1969.

THE MERITORIOUS CLAIMS ACT OF 1928 PROVIDES THAT WHEN A CLAIM IS FILED IN THIS OFFICE THAT MAY NOT LAWFULLY BE ADJUSTED BY USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM IN OUR JUDGMENT CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, IT SHALL BE SUBMITTED TO THE CONGRESS WITH OUR RECOMMENDATION. THE REMEDY IS AN EXTRAORDINARY ONE AND ITS USE IS LIMITED TO EXTRAORDINARY CIRCUMSTANCES.

THE CASES WE HAVE REPORTED TO CONGRESS GENERALLY HAVE INVOLVED EQUITABLE CIRCUMSTANCES OF AN UNUSUAL NATURE AND WHICH ARE UNLIKELY TO CONSTITUTE A RECURRING PROBLEM, SINCE TO REPORT TO THE CONGRESS A PARTICULAR CASE WHEN SIMILAR EQUITIES EXIST OR ARE LIKELY TO ARISE WITH RESPECT TO OTHER CLAIMANTS WOULD CONSTITUTE PREFERENTIAL TREATMENT OVER OTHERS IN SIMILAR CIRCUMSTANCES.

SITUATIONS DO ARISE IN THE SEVERAL BRANCHES OF THE UNIFORMED SERVICES WHERE DUE TO ADMINISTRATIVE ERROR, THROUGH NO FAULT OF THE MEMBER, HIS PAY ACCOUNT IS EITHER UNDERPAID OR OVERPAID. WHEN THIS OCCURS, THE ACCOUNT IS NORMALLY ADJUSTED AT A LATER DATE UPON DISCOVERY OF THE ERROR. ALSO, THERE ARE MANY CASES WHERE A MEMBER CANCELS ONE OR MORE EXISTING ALLOTMENTS AND SIMULTANEOUSLY REQUESTS ONE OR MORE NEW ALLOTMENTS. CANCELING THE OLD ALLOTMENT AND STARTING THE NEW ALLOTMENT A DELAY IS SOMETIMES OCCASIONED EITHER DUE TO THE FAILURE OF THE MEMBER TO FURNISH COMPLETE INFORMATION OR DUE TO ADMINISTRATIVE DELAY IN PROCESSING THE MATTER.

WHILE IT IS UNFORTUNATE THAT YOU RECEIVED NO PAY AND ALLOWANCES DURING FEBRUARY AND MARCH 1969 AND, AS YOU ALLEGE, YOUR WIFE DID NOT RECEIVE HER CLASS Q ALLOTMENT AND CLASS E ALLOTMENT UNTIL MARCH AND MAY 1969, RESPECTIVELY, SUCH ADMINISTRATIVE DELAY DOES NOT, IN OUR OPINION, AFFORD A LEGAL BASIS FOR PAYMENT OF YOUR CLAIM NOR DOES IT FURNISH A BASIS FOR CONSIDERING YOUR CASE AS CONTAINING ELEMENTS OF EQUITY OF AN UNUSUAL NATURE. OTHER MEMBERS OF THE UNIFORMED SERVICES HAVE SUFFERED FINANCIAL HARDSHIP IN ONE FORM OR ANOTHER WHEN DUE TO ADMINISTRATIVE DELAY THEIR PAY AND ALLOWANCE ACCOUNTS WERE NOT PROPERLY CREDITED.

ACCORDINGLY, ON THE RECORD BEFORE US, WE ARE OF THE OPINION THAT YOUR CLAIM DOES NOT CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD WARRANT REPORTING IT TO THE CONGRESS UNDER THE MERITORIOUS CLAIMS ACT OF 1928. THEREFORE, NO ACTION WILL BE TAKEN TO REPORT THE CLAIM TO THE CONGRESS FOR CONSIDERATION.