B-165901, JAN. 28, 1969

B-165901, JAN. 28, 1969

TO MR. CHARLES R. THOMPSON:

REFERENCE IS MADE TO YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF SHIPPING YOUR HOUSEHOLD EFFECTS FROM TOPEKA, KANSAS, TO COLORADO SPRINGS, COLORADO, ON MAY 23, 1968, PRIOR TO YOUR RETIREMENT FROM THE AIR FORCE ON AUGUST 13, 1968. THE CLAIM WAS FORWARDED TO THIS OFFICE BY THE DEPARTMENT OF THE AIR FORCE, HEADQUARTERS AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, FOR CONSIDERATION AS A MERITORIOUS CLAIM UNDER THE PROVISIONS OF THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236.

THE RECORD SHOWS THAT IN JANUARY 1968, WHILE STATIONED AT FORBES AIR FORCE BASE, KANSAS, YOU SUFFERED A STROKE AND WERE HOSPITALIZED FOR A PERIOD OF THREE WEEKS. IN VIEW OF YOUR ILLNESS YOU APPLIED FOR VOLUNTARY RETIREMENT UNDER 10 U.S.C. 8914 WHICH PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF THE AIR FORCE A REGULAR ENLISTED MEMBER OF THE AIR FORCE WHO HAS AT LEAST 20, BUT LESS THAN 30 YEARS OF SERVICE, MAY UPON HIS REQUEST, BE RETIRED.

IT APPEARS THAT YOU ALSO REQUESTED WAIVER OF LINE 4, TABLE 2-1 OF AIR FORCE MANUAL 35-7 WHICH ESTABLISHES A RESTRICTION ON RETIREMENT IF A MEMBER HAS NOT SERVED FOR A MINIMUM OF 2 YEARS FOLLOWING ACTIVE DUTY PROMOTION TO GRADES O-6, O-5, O-4, W-4, W-3, E-9, E-8 OR E-7. PRESUMABLEY YOU HAD NOT SERVED FOR 2 YEARS IN THE PAY GRADE IN WHICH YOU WERE SERVING AT THAT TIME. PARAGRAPH 2-12 OF THE SAME REGULATIONS STATES THAT WHEN A WAIVER OF A RESTRICTION ON RETIREMENT IS REQUESTED, THE MEMBER SHOULD BASE HIS PERSONAL PLANNING ON A PRESUMPTION OF POSSIBLE DISAPPROVAL. YOU ALSO REQUESTED APPROVAL TO SHIP YOUR HOUSEHOLD EFFECTS PRIOR TO RECEIPT OF RETIREMENT ORDERS.

NOTWITHSTANDING THE POSSIBLE DISAPPROVAL OF YOUR APPLICATION FOR RETIREMENT AND DENIAL OF YOUR REQUEST FOR APPROVAL TO SHIP YOUR HOUSEHOLD EFFECTS PRIOR TO RECEIPT OF RETIREMENT ORDERS, YOU CONTRACTED FOR THE PURCHASE OF A HOME IN COLORADO SPRINGS, COLORAD, WITH VETERANS ADMINISTRATION FINANCING WHICH WAS TO BE READY FOR OCCUPANCY IN MAY 1968.

BY LETTER DATED MAY 15, 1968, HEADQUARTERS UNITED STATES AIR FORCE, DEPARTMENT OF THE AIR FORCE, WASHINGTON, D.C., YOU WERE ADVISED THAT YOUR REQUEST FOR WAIVER OF THE RETIREMENT RESTRICTION WAS REVIEWED AND YOUR APPLICATION FOR RETIREMENT EFFECTIVE AUGUST 1, 1968, WAS DISAPPROVED. ALSO, YOU WERE ADVISED THAT YOUR REQUEST FOR APPROVAL TO SHIP YOUR HOUSEHOLD EFFECTS WAS RETURNED WITHOUT ACTION SINCE YOUR APPLICATION FOR RETIREMENT WAS DISAPPROVED.

BY ORDERS DATED MAY 21, 1968, YOU WERE ORDERED EFFECTIVE MAY 24 TO WILFORD HALL UNITED STATES AIR FORCE HOSPITAL, LACKLAND AIR FORCE BASE, TEXAS, ON TEMPORARY DUTY FOR FURTHER MEDICAL TREATMENT, REEVALUATION AND DISPOSITION, AFTER WHICH YOU WERE TO RETURN TO FORBES AIR FORCE BASE. MAY 23, 1968, YOU SHIPPED YOUR HOUSEHOLD EFFECTS TO YOUR RESIDENCE IN COLORADO SPRINGS, COLORADO, AT PERSONAL EXPENSE. BY ORDERS DATED JULY 12, 1968, YOU WERE RETIRED FROM THE SERVICE FOR PHYSICAL DISABILITY, EFFECTIVE AUGUST 13, 1968, UNDER THE PROVISIONS OF SECTION 1201 OF TITLE 10, U.S.C.

THE AUTHORITY FOR SHIPMENT OF HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES IS GOVERNED BY THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO 37 U.S.C. 406. THOSE REGULATIONS SPECIFICALLY PROVIDE (PARAGRAPH M8015-1) THAT SHIPMENT OF HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE IS NOT AUTHORIZED PRIOR TO THE ISSUANCE OF ORDERS EXCEPT IN CASE OF EMERGENCY, EXIGENCY OF THE SERVICE, OR WHEN REQUIRED BY SERVICE NECESSITY, AS DETERMINED BY THE APPROPRIATE AUTHORITY OF THE UNIFORMED SERVICE CONCERNED. NO SUCH DETERMINATION HAS BEEN FURNISHED IN YOUR CASE. ON THE CONTRARY, AND AS STATED ABOVE, PARAGRAPH 2-12, AIR FORCE MANUAL, PUT YOU ON NOTICE THAT WHEN WAIVER OF A RESTRICTION ON RETIREMENT IS REQUESTED, THE MEMBER SHOULD BASE HIS PERSONAL PLANNING ON A PRESUMPTION OF A POSSIBLE DISAPPROVAL. AND WHEN YOU SHIPPED YOUR HOUSEHOLD EFFECTS ON MAY 23, 1968, TO COLORADO SPRINGS, COLORADO, YOU DID SO WITH KNOWLEDGE THAT YOUR APPLICATION FOR RETIREMENT EFFECTIVE AUGUST 1, 1968, UNDER SECTION 8914 OF TITLE 10, U.S. CODE, HAS BEEN DISAPPROVED, IN VIEW OF WHICH YOUR REQUEST FOR AUTHORITY TO SHIP YOUR HOUSEHOLD EFFECTS HAD BEEN RETURNED WITHOUT ACTION.

THE JOINT TRAVEL REGULATIONS ARE STATUTORY REGULATIONS AND HAVE THE FORCE AND EFFECT OF LAW. UNDER THE REGULATIONS MEMBERS OF THE UNIFORMED SERVICES MAY NOT SHIP HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE AT WILL, BUT ONLY UNDER CONDITIONS AS PRESCRIBED IN THE REGULATIONS.

SINCE YOU SHIPPED YOUR HOUSEHOLD EFFECTS PRIOR TO THE ISSUANCE OF YOUR RETIREMENT ORDERS OF JULY 12, 1968, AND IN THE ABSENCE OF THE EMERGENCY AUTHORIZATION CONTEMPLATED BY THE REGULATIONS, THERE IS NO AUTHORITY OF LAW TO ALLOW YOUR CLAIM FOR REIMBURSEMENT.

WITH REGARD TO THE RECOMMENDATION OF THE AIR FORCE THAT YOUR CLAIM BE CONSIDERED UNDER THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236, THE CASES WE HAVE REPORTED TO THE 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.

THERE ARE NUMEROUS CASES WHERE, FOR COMPELLING PERSONAL REASONS, MEMBERS SHIP THEIR HOUSEHOLD EFFECTS PRIOR TO ORDERS WITH THE RESULT THAT THEY MUST PAY FOR THE COST OF THE SHIPMENT. THEREFORE, WE FIND NO BASIS FOR CONSIDERING YOUR CASE AS CONTAINING ELEMENTS OF EQUITY OF AN UNUSUAL NATURE.

SINCE 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, NO ACTION WILL BE TAKEN TO REPORT THE CLAIM TO THE CONGRESS FOR CONSIDERATION.