B-131864, AUG. 1, 1957

B-131864, AUG. 1, 1957

TO CAPTAIN WILLIAM J. CHILCOAT:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 29, 1957, REQUESTING REVIEW OF SETTLEMENT DATED AUGUST 29, 1956, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF THE EXPENSES INCURRED FOR STORAGE OF YOUR HOUSEHOLD EFFECTS DURING THE PERIOD SEPTEMBER 29, 1952, TO JUNE 29, 1955.

BY ORDERS DATED DECEMBER 29, 1951, YOU WERE RELEASED FROM ASSIGNMENT AND DUTY AT FORT BENNING, GEORGIA, AND ASSIGNED TO DUTY IN GERMANY. BY ORDERS DATED APRIL 12, 1955, YOU WERE RETURNED FROM DUTY OVERSEAS AND ASSIGNED TO DUTY AT FORT BLISS, TEXAS. IT APPEARS THAT INCIDENT TO THE ORDERS OF DECEMBER 29, 1951, ASSIGNING YOU TO DUTY OVERSEAS, YOUR HOUSEHOLD EFFECTS WERE SHIPPED AT GOVERNMENT EXPENSE FROM FORT BENNING, GEORGIA, TO FORT WORTH, TEXAS, YOUR HOME OF RECORD, WHERE THEY WERE PLACED IN COMMERCIAL STORAGE WITH THE O. K. WAREHOUSE COMPANY, INC. BY APPLICATION DATED AUGUST 23, 1952, TO THE COMMANDING OFFICER, FORT WORTH QUARTERMASTER DEPOT, FORT WORTH, TEXAS, YOU REQUESTED THAT YOUR EFFECTS BE MOVED FROM COMMERCIAL STORAGE TO GOVERNMENT STORAGE IN FORT WORTH, BUT SUCH REQUEST WAS DENIED. THE GOVERNMENT PAID THE STORAGE CHARGES FOR THE FIRST SIX MONTHS' STORAGE. THE EFFECTS REMAINED IN COMMERCIAL STORAGE UNTIL JUNE 29, 1955. YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF STORAGE FROM SEPTEMBER 29, 1952, TO JUNE 29, 1955, IN THE AMOUNT OF $470.91, WAS DISALLOWED BY OUR SETTLEMENT DATED AUGUST 29, 1956, BECAUSE THE STORAGE OF YOUR EFFECTS WAS CONSIDERED PERMANENT STORAGE FOR WHICH THERE IS NO AUTHORITY FOR PAYMENT. IN YOUR REQUEST FOR REVIEW OF THAT SETTLEMENT YOU SAY, IN EFFECT, THAT THE ADMINISTRATIVE OFFICIALS ERRONEOUSLY REFUSED TO MOVE YOUR EFFECTS FROM COMMERCIAL STORAGE AND STORE THEM IN A GOVERNMENT FACILITY AS REQUESTED BY YOU. ON SUCH BASIS YOU URGE THAT YOUR CLAIM SHOULD BE ALLOWED.

PARAGRAPH 8006-1, JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, PROVIDED, AT THE TIME HERE INVOLVED, THAT WHEN NECESSARY IN CONNECTION WITH A PERMANENT CHANGE OF STATION TEMPORARY STORAGE OF HOUSEHOLD EFFECTS NOT TO EXCEED SIX MONTHS MAY BE AUTHORIZED AT GOVERNMENT EXPENSE. PARAGRAPH 8006-2 OF THE SAME REGULATIONS PROVIDED 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 STORED ON A NONTEMPORARY STORAGE BASIS IN COMMERCIAL FACILITIES. ANY RIGHT TO STORAGE IN GOVERNMENT FACILITIES IS NOT A STATUTORY RIGHT BUT IS MERELY A PRIVILEGE ACCORDED OFFICERS TO THE EXTENT THAT SUCH FACILITIES ARE AVAILABLE WHEN STORAGE IS REQUESTED, AND IS CONDITIONED UPON ACTUAL ACCEPTANCE AND STORAGE OF THE EFFECTS BY THE GOVERNMENT. IT IS A SERVICE THAT MAY BE RENDERED IN KIND ONLY AND WHERE THE EFFECTS ARE NOT IN FACT SO STORED, IRRESPECTIVE OF THE REASONS, THERE IS NO AUTHORITY FOR REIMBURSING AN OFFICER FOR COMMERCIAL STORAGE COSTS CLAIMED ON THE BASIS THAT SUCH COSTS WOULD NOT HAVE BEEN INCURRED HAD GOVERNMENT STORAGE BEEN FURNISHED. HENCE, YOU MAY NOT BE REIMBURSED ANY PART OF THE EXPENSE CLAIMED FOR STORAGE OF YOUR EFFECTS. EVEN IF IT SHOULD BE CONCEDED THAT THE ADMINISTRATIVE REFUSAL TO PLACE YOUR EFFECTS IN STORAGE IN A GOVERNMENT FACILITY WAS ERRONEOUS, THE GOVERNMENT IS NOT BOUND BY THE NEGLIGENT OR ERRONEOUS ACTS OF ITS OFFICERS OR AGENTS IN THE ABSENCE OF A STATUTE SO PROVIDING. SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM BY THE SETTLEMENT OF AUGUST 29, 1956, IS SUSTAINED.

GENERALLY THE ONLY CLAIMS CONSIDERED UNDER THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 31 U.S.C. 236, ARE THOSE THAT CONTAIN ELEMENTS OF LEGAL LIABILITY, OR EQUITY, ON WHICH THE GENERAL ACCOUNTING OFFICE WOULD TAKE ACTION AND ALLOW BUT FOR THE FACT THAT THERE IS NO APPROPRIATION AVAILABLE FOR THEIR ADJUSTMENT. SEE 34 COMP. GEN. 490. YOUR CLAIM DOES NOT CONTAIN ELEMENTS OF LEGAL LIABILITY OR EQUITY WHICH WOULD WARRANT OUR REPORTING IT TO THE CONGRESS UNDER THE 1928 ACT.

CLAIMS AND SUPPORTING PAPERS SUBMITTED HERE FOR SETTLEMENT CONSTITUTE A PART OF THE PERMANENT RECORDS OF OUR OFFICE, WHICH WE ARE REQUIRED BY LAW TO RETAIN. THUS YOUR CLAIM AND SUPPORTING PAPERS MAY NOT BE RETURNED AS REQUESTED BY YOU.