B-200397 L/M, OCT 8, 1980

B-200397 L/M, OCT 8, 1980

PRECIS-UNAVAILABLE

PETER W. RODINO, JR., HOUSE OF REPRESENTATIVES:

REFERENCE IS MADE TO YOUR REQUEST OF SEPTEMBER 2, 1980, FOR OUR VIEWS ON H.R. 7524, 96TH CONGRESS, A BILL FOR THE RELIEF OF BRIAN E. MCCAGH.

THE BILL WOULD AUTHORIZE AND DIRECT THE SECRETARY OF THE TREASURY TO PAY BRIAN E. MCCAGH THE SUM OF $4,006.57 IN FULL SETTLEMENT OF ALL CLAIMS AGAINST THE UNITED STATES FOR LOSSES SUFFERED BY HIM AS A RESULT OF AIR FORCE PERSONNEL REFUSING TO ACCEPT HOUSEHOLD GOODS OWNED BY HIM FOR STORAGE AND SUBSEQUENT COMMERCIAL SHIPMENT IN CONNECTION WITH A PERMANENT CHANGE OF STATION BY HIM FROM EUROPE TO THE UNITED STATES. THE BILL INDICATES THAT THE HOUSEHOLD GOODS WERE LOST WHEN THEY WERE IMPOUNDED AND SOLD BY SPANISH OFFICIALS AS A RESULT OF THE BANKRUPTCY OF THE BUSINESS FIRM FROM WHICH MR. MCCAGH HAD PURCHASED THE HOUSEHOLD GOODS WHILE THE FIRM WAS IN POSSESSION OF THE HOUSEHOLD GOODS AFTER THE AIR FORCE HAD REFUSED TO ACCEPT THEM FOR STORAGE AND SHIPMENT.

NO CLAIM HAS BEEN SUBMITTED TO OUR OFFICE REGARDING THE SUBJECT MATTER OF H.R. 7524 AND WE HAVE NO FACTUAL INFORMATION OTHER THAN THAT WHICH IS SET FORTH IN THE BILL. WE ASSUME THAT YOU WILL RECEIVE A FULL REPORT ON THE MATTER FROM THE DEPARTMENT OF THE AIR FORCE.

APPARENTLY MR. MCCAGH WAS A MEMBER OF A UNIFORMED SERVICE AT THE TIME OF THE LOSS OF HIS GOODS. UNDER THE PROVISIONS OF 37 U.S.C. SEC. 406(B) AND (C) (1976) MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TEMPORARY STORAGE AND TRANSPORTATION OF HOUSEHOLD GOODS AND PERSONAL EFFECTS UPON A PERMANENT CHANGE OF STATION SUBJECT TO SUCH CONDITIONS AND LIMITATIONS; FOR SUCH GRADES, RANKS, AND RATINGS; AND TO AND FROM SUCH PLACES; PRESCRIBED BY THE SECRETARIES CONCERNED. IMPLEMENTING REGULATIONS ARE FOUND IN VOLUME 1, JOINT TRAVEL REGULATIONS (1 JTR), WHICH PRESCRIBE THE WEIGHT ALLOWANCES AND OTHER CONDITIONS AND LIMITATIONS APPLICABLE TO SHIPMENTS OF MEMBERS' HOUSEHOLD GOODS. WHILE IT IS NOT CLEAR FROM THE LANGUAGE IN THE BILL AS TO WHY THE AIR FORCE MAY HAVE REFUSED TO ACCEPT MR. MCCAGH'S HOUSEHOLD GOODS FOR STORAGE AND TRANSPORTATION, APPENDIX J OF THE REGULATIONS, IN AN EXPLANATION OF THE TERM "HOUSEHOLD GOODS" THAT MAY BE SHIPPED AT GOVERNMENT EXPENSE, PROVIDES IN PART THAT THE TERM DOES NOT INCLUDE:

"10. ARTICLES OF HOUSEHOLD GOODS ACQUIRED SUBSEQUENT TO THE EFFECTIVE DATE OF PERMANENT CHANGE-OF-STATION ORDERS EXCEPT WHEN PURCHASED IN THE UNITED STATES FOR SHIPMENT TO A DUTY STATION OUTSIDE THE UNITED STATES WITH THE APPROVAL OF THE APPROPRIATE AUTHORITY OF THE SERVICE CONCERNED, OR WHEN THEY ARE BONA FIDE REPLACEMENTS OF ARTICLES WHICH HAVE BECOME INADEQUATE, WORN OUT, BROKEN, OR UNSERVICEABLE ON OR AFTER THE EFFECTIVE DATE OF ORDERS BUT PRIOR TO THE DATE OF RELEASE OF THE BULK OF HOUSEHOLD GOODS TO THE TRANSPORTATION OFFICER OR CARRIER FOR SHIPMENT ***."

THE RULE IS WELL ESTABLISHED THAT THE RESPONSIBILITY OF THE GOVERNMENT FOR SHIPMENT AND TEMPORARY STORAGE OF HOUSEHOLD GOODS IS LIMITED TO THOSE GOODS OWNED BY A MEMBER ON THE EFFECTIVE DATE OF ORDERS WHICH DIRECT A PERMANENT CHANGE OF STATION. 52 COMP.GEN. 765 (1973), 50 COMP.GEN. 556 (1971), 44 COMP.GEN. 290 (1964), AND 43 COMP.GEN. 514 (1964).

IF THE AIR FORCE REFUSAL TO ACCEPT MR. MCCAGH'S HOUSEHOLD GOODS FOR STORAGE AND SHIPMENT WAS BASED ON THE ABOVE PROVISION OF APPENDIX J, 1 JTR, WHETHER OR NOT THAT REFUSAL WAS ERRONEOUS WOULD DEPEND ON, AMONG OTHER THINGS, THE EFFECTIVE DATE OF THE ORDERS AND THE DATE THAT OWNERSHIP OF THE SPECIFIC ITEMS OF HOUSEHOLD GOODS BECAME VESTED IN MR. MCCAGH.

WE ALSO NOTE THAT UNDER THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964, 31 U.S.C. SECS. 240-243 (1976), MEMBERS OF THE UNIFORMED SERVICES MAY FILE CLAIMS WITH THEIR RESPECTIVE SERVICES, AND BE REIMBURSED THEREFOR, FOR PERSONAL PROPERTY LOST OR DAMAGED INCIDENT TO THEIR SERVICE UNDER CERTAIN CIRCUMSTANCES. WHETHER MR. MCCAGH PURSUED THAT AVENUE OF RELIEF WITH HIS SERVICE IS NOT APPARENT FROM THE BILL.

WE ARE AWARE OF OTHER CASES IN WHICH A SERVICE MEMBER COULD NOT BE REIMBURSED BECAUSE THERE WAS NO APPLICABLE LAW OR REGULATION WHICH WOULD AUTHORIZE REIMBURSEMENT TO THE MEMBER FOR LOSS OR DAMAGE TO HIS PROPERTY IN THE PARTICULAR CIRCUMSTANCES. THUS, ENACTMENT OF THIS LEGISLATION WOULD APPEAR TO RESULT IN PREFERENTIAL TREATMENT OF THE INDIVIDUAL OVER OTHERS SIMILARLY SITUATED.