B-130568, MAR. 28, 1957

B-130568, MAR. 28, 1957

TO LIEUTENANT COLONEL NEILL M. MICHAEL, RETIRED:

YOUR LETTER OF JANUARY 9, 1957, REQUESTS REVIEW OF SETTLEMENT DATED FEBRUARY 6, 1956, WHICH DISALLOWED YOUR CLAIM FOR STORAGE AND SHIPMENT OF YOUR HOUSEHOLD EFFECTS.

BY SPECIAL ORDERS NO. 9 DATED JANUARY 12, 1951, YOU WERE ORDERED TO EXTENDED ACTIVE DUTY FROM YOUR HOME OF RECORD, BERKLEY COURT, WELLESLEY HILLS, MASSACHUSETTS, AND DIRECTED TO REPORT NOT LATER THAN FEBRUARY 14, 1951, TO FORT DIX, NEW JERSEY. ON FEBRUARY 19, 1951, YOU WERE ORDERED TO OLMSTEAD AIR FORCE BASE, PENNSYLVANIA. ON MARCH 30, 1951, YOU WERE DIRECTED TO PROCEED TO CAMP STONEMAN, CALIFORNIA, FOR PROCESSING FOR DUTY OVERSEAS. ON APRIL 24, 1951, YOUR HOUSEHOLD EFFECTS WERE PICKED UP AT YOUR HOME AND DELIVERED TO THE METROPOLITAN STORAGE WAREHOUSE COMPANY, CAMBRIDGE, MASSACHUSETTS, WHERE THEY REMAINED UNTIL JANUARY 21, 1955. ORDERS OF MARCH 20, 1953, YOU WERE RELIEVED FROM YOUR OVERSEAS ASSIGNMENT AND ASSIGNED TO PARKS AIR FORCE BASE, CALIFORNIA. BY ORDERS OF AUGUST 12, 1954, YOU WERE RELEASED FROM ACTIVE DUTY AND DIRECTED TO PROCEED TO YOUR HOME OF RECORD, BOSTON, MASSACHUSETTS. BY ORDERS OF DECEMBER 21, 1954, YOU WERE TRANSFERRED TO THE UNITED STATES AIR FORCE RETIRED RESERVES AND PLACED ON THE UNITED STATES AIR FORCE RESERVE RETIRED LIST, EFFECTIVE DECEMBER 31, 1954, BY REASON OF COMPLETING EIGHT OR MORE YEARS OF SATISFACTORY FEDERAL SERVICE AND 60 YEARS OF AGE OR OVER. ON JANUARY 21, 1955, YOUR HOUSEHOLD EFFECTS WERE TAKEN OUT OF STORAGE AND SHIPPED TO YOUR HOME IN WINTER PARK, FLORIDA. YOU PAID THE SUM OF $436.72 FOR STORAGE AND $544.83 FOR TRANSPORTATION OF YOUR HOUSEHOLD GOODS OR A TOTAL OF $981.55. YOU NOW CLAIM REFUND OF THIS AMOUNT.

WE WILL FIRST CONSIDER YOUR CLAIM FOR COMMERCIAL STORAGE OF YOUR HOUSEHOLD EFFECTS. PARAGRAPH 8006-2 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, PROVIDES THAT WHERE STORAGE OF EFFECTS IS DESIRED UPON ASSIGNMENT TO DUTY OUTSIDE THE UNITED STATES, HOUSEHOLD EFFECTS MAY BE PLACED IN NONTEMPORARY STORAGE IN GOVERNMENT FACILITIES WHEN SUCH FACILITIES ARE AVAILABLE. NO PROVISION IS MADE, HOWEVER, IN SUCH REGULATIONS FOR ANY PAYMENT FOR COMMERCIAL STORAGE WHERE, AS IN YOUR CASE, EFFECTS ARE PLACED IN NONTEMPORARY STORAGE IN A COMMERCIAL FACILITY. YOU WERE ENTITLED TO NONTEMPORARY STORAGE OF YOUR EFFECTS IN GOVERNMENT FACILITIES PROVIDED SUCH FACILITIES WERE AVAILABLE WHEN STORAGE WAS REQUESTED, AND WAS CONDITIONED UPON ACTUAL ACCEPTANCE AND STORAGE OF THE EFFECTS BY THE GOVERNMENT. IT WAS A SERVICE WHICH COULD BE RENDERED IN KIND ONLY AND WHERE THE EFFECTS WERE NOT IN FACT SO STORED, IRRESPECTIVE OF THE REASONS, THERE IS NO LEGAL BASIS UPON WHICH WE MAY NOW REIMBURSE YOU FOR COMMERCIAL STORAGE COSTS.

CONCERNING YOUR CLAIM FOR REIMBURSEMENT FOR THE COST OF SHIPPING YOUR HOUSEHOLD EFFECTS TO YOUR HOME IN FLORIDA, IT APPEARS TO BE YOUR CONTENTION THAT YOU WERE ENTITLED TO SHIP YOUR HOUSEHOLD EFFECTS TO YOUR SELECTED HOME IN FLORIDA INCIDENT TO THE ORDERS OF DECEMBER 21, 1954. HAVE BEEN INFORMALLY ADVISED BY THE DEPARTMENT OF THE AIR FORCE THAT THESE ORDERS PLACED YOU ON THE UNITED STATES AIR FORCE RESERVE RETIRED LIST PURSUANT TO AFR 45-5 PARAGRAPH 9 (F) (1), WHICH DOES NOT CARRY WITH IT ANY RIGHT TO RETIREMENT PAY BUT DOES REQUIRE RESERVE STATUS. THE PROVISION OF LAW WHICH PROVIDES FOR REIMBURSEMENT FOR SHIPMENT OF HOUSEHOLD EFFECTS TO THE HOME SELECTED BY A MEMBER RESERVIST UPON RETIREMENT IS CONTAINED IN THE ACT OF AUGUST 11, 1955, 69 STAT. 691. THIS ACT AMENDED SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 814, TO AUTHORIZE THE PROMULGATION OF REGULATIONS RETROACTIVE TO APRIL 1, 1951, PERMITTING AMONG OTHER THINGS, THE SELECTION OF A HOME BY A MEMBER OF THE UNIFORMED SERVICES UPON HIS RETIREMENT WITH PAY IMMEDIATELY FOLLOWING AT LEAST EIGHT YEARS OF CONTINUOUS ACTIVE DUTY (NO SINGLE BREAK THEREIN OF MORE THAN 90 DAYS) AND THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES, INCLUDING TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS, TO THAT PLACE. SEE JOINT TRAVEL REGULATIONS, APPENDIX D.

SINCE YOU WERE NOT RETIRED "WITH PAY IMMEDIATELY FOLLOWING AT LEAST EIGHT YEARS OF CONTINUOUS ACTIVE DUTY," IT IS CLEAR THAT THE ACT OF AUGUST 11, 1955, IS NOT APPLICABLE TO YOUR SITUATION. IT FOLLOWS THAT THE FACT YOU WERE NOT RETIRED ON AUGUST 12, 1954, THE DATE OF YOUR RELEASE FROM ACTIVE DUTY ORDERS, IS IMMATERIAL.

ACCORDINGLY, THERE IS NO LEGAL BASIS UPON WHICH YOUR CLAIM MAY BE ALLOWED. THEREFORE, THE SETTLEMENT OF FEBRUARY 6, 1957, WAS CORRECT AND IS SUSTAINED.