B-137056, NOV 19, 1958

B-137056, NOV 19, 1958

PRECIS-UNAVAILABLE

LIEUTENANT (JG) STUART M. COWAN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 17, 1958, REQUESTING REVIEW OF THE SETTLEMENT OF SEPTEMBER 4, 1958, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR THE COST OF STORING YOUR HOUSEHOLD EFFECTS FROM APRIL 1, 1956, TO JULY 1, 1958.

BY ORDERS DATED SEPTEMBER 16, 1955, HAVING ENLISTED ON THAT DATE YOU WERE DIRECTED TO PROCEED FROM YOUR HOME, IRVINGTON, NEW YORK, AND TO REPORT TO THE COMMANDING OFFICER, U. S. NAVAL SCHOOLS COMMAND, NEWPORT, RHODE ISLAND, ON NOVEMBER 14, 1955, FOR FOUR MONTHS' INDOCTRINATION UPON COMPLETION OF WHICH YOU WERE TO BE APPOINTED ENSIGN, USNR, AND ORDERED TO FURTHER ACTIVE DUTY. ON OCTOBER 27, 1955, YOU PLACED YOUR HOUSEHOLD EFFECTS IN COMMERCIAL STORAGE IN NEWARK, NEW JERSEY, AT PERSONAL EXPENSE. BY ORDERS DATED MARCH 16, 1956, UPON COMPLETION OF CERTAIN PERIODS OF TEMPORARY DUTY DIRECTED THEREIN, YOU WERE ORDERED TO DUTY ABOARD THE U.S.S. LOS ANGELES. YOU STATE THAT DURING THE FIRST WEEK OF APRIL 1956, YOU REQUESTED THE NAVAL SUPPLY CENTER, BAYONNE, NEW JERSEY, TO PLACE YOUR HOUSEHOLD EFFECTS IN NONTEMPORARY GOVERNMENT STORAGE, AND THAT YOU WERE ADVISED SUCH STORAGE WAS NOT AVAILABLE TO YOU INASMUCH AS YOUR EFFECTS ALREADY WERE IN STORAGE. YOUR EFFECTS WERE REMOVED FROM COMMERCIAL STORAGE AND PLACED IN NONTEMPORARY GOVERNMENT STORAGE ON JULY 1, 1958, INCIDENT TO ORDERS OF APRIL 1958, PLACING YOU ON SHORE DUTY OVERSEAS. IS YOUR CONTENTION THAT SINCE YOUR REQUEST FOR NONTEMPORARY STORAGE IN APRIL 1956, WAS NOT GRANTED YOU SHOULD BE REIMBURSED FOR THE COST INCURRED FOR STORAGE FROM APRIL 1, 1956, TO JULY 1, 1958. YOU STATE THAT YOUR REQUEST FOR STORAGE WAS NOT DENIED ON THE GROUNDS THAT GOVERNMENT STORAGE FACILITIES WERE NOT AVAILABLE BUT BECAUSE IT WAS BELIEVED YOU WERE NOT ENTITLED TO GOVERNMENT STORAGE.

SECTION 303(C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253, PROVIDES THAT UNDER SUCH REGULATIONS AS THE SECRETARIES CONCERNED MAY PRESCRIBE, MEMBERS OF THE UNIFORMED SERVICES UPON CHANGE OF STATION SHALL BE ENTITLED TO TRANSPORTATION (INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE, AND UNPACKING) OF HOUSEHOLD EFFECTS, OR REIMBURSEMENT THEREFOR. THAT SECTION FURTHER PROVIDES THAT NONTEMPORARY STORAGE OF BAGGAGE AND HOUSEHOLD EFFECTS MAY BE AUTHORIZED IN GOVERNMENT FACILITIES, OR IN COMMERCIAL FACILITIES WHENEVER SUCH STORAGE IS CONSIDERED TO BE MORE ECONOMICAL TO THE GOVERNMENT. THOSE PROVISIONS OF LAW ARE NOT SELF-EXECUTING BUT REQUIRE THE ISSUANCE OF CONTROLLING REGULATIONS. AT THE TIME HERE INVOLVED, THAT IS, ON APRIL 1, 1956, THE PROVISION AUTHORIZING NONTEMPORARY COMMERCIAL STORAGE HAD, BY AMENDMENT, BECOME PART OF THE LAW. HOWEVER, THE OPERATIVE REGULATIONS HAD NOT BEEN PROMULGATED. PARAGRAPH 8006-2, CHANGE 45, APRIL 1, 1956, JOINT TRAVEL REGULATIONS, PROVIDED THAT MEMBERS COULD APPLY FOR STORAGE OF THEIR HOUSEHOLD GOODS AT AN INSTALLATION OF THE SERVICE CONCERNED AND THAT THE GRANTING OF A REQUEST WOULD DEPEND UPON WHETHER FACILITIES WERE AVAILABLE. NO PROVISION HAD BEEN MADE IN THE REGULATIONS FOR NONTEMPORARY STORAGE IN COMMERCIAL FACILITIES OR FOR PAYMENT OF COMMERCIAL STORAGE CHARGES INCIDENT TO SUCH STORAGE. IT WAS NOT UNTIL CHANGE 53, DECEMBER 1, 1956, THAT THE REGULATIONS PROVIDED THAT NONTEMPORARY STORAGE MAY BE AUTHORIZED IN EITHER GOVERNMENT OR COMMERCIAL FACILITIES, WHICHEVER IS DETERMINED TO BE MORE ECONOMICAL TO THE GOVERNMENT BY THE TRANSPORTATION OFFICER. THUS, ON APRIL 1, 1956, STORAGE OF HOUSEHOLD EFFECTS BY THE GOVERNMENT WAS A SERVICE THAT COULD BE RENDERED IN KIND ONLY, AND WHERE THE EFFECTS IN FACT WERE NOT SO STORED BUT REMAINED IN COMMERCIAL STORAGE, THERE IS NO LEGAL BASIS FOR REIMBURSEMENT OF THE COST INCURRED. EVEN THOUGH GOVERNMENT STORAGE MAY HAVE BEEN DENIED THROUGH ERROR, NO PAYMENT FOR STORAGE IS AUTHORIZED, IT BEING WELL ESTABLISHED THAT, IN THE ABSENCE OF A PERTINENT STATUTE SO PROVIDING, THE GOVERNMENT IS NOT LIABLE FOR LOSS OR DAMAGE RESULTING FROM THE NEGLIGENT ACTS OR OMISSIONS OF DUTY OF THE OFFICERS OR AGENTS EMPLOYED IN THE PUBLIC SERVICE. SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515. AFTER THE REGULATIONS AUTHORIZED TRANSPORTATION OFFICERS TO CONSIDER COMMERCIAL STORAGE IN THE HANDLING OF REQUESTS FOR NONTEMPORARY STORAGE OF HOUSEHOLD EFFECTS AND PRIOR TO THE DATE ON WHICH YOUR CLAIM ENDS, YOU APPARENTLY MADE NO APPLICATION FOR STORAGE OF YOUR EFFECTS.

SINCE THERE IS NO LEGAL BASIS FOR THE PAYMENT OF YOUR CLAIM, THE SETTLEMENT OF SEPTEMBER 4, 1958, IS SUSTAINED.