B-137604, FEB 13, 1959

B-137604, FEB 13, 1959

PRECIS-UNAVAILABLE

COMMANDING OFFICER, AIR FORCE ACCOUNTING AND FINANCE CENTER, DEPARTMENT OF THE AIR FORCE:

REFERENCE IS MADE TO LETTER DATED DECEMBER 9, 1958 (FILE AADT-2, LAMM, BOBBY V., AF 1451 5387), ADDRESSED TO OUR CLAIMS DIVISION AND SIGNED BY THE CHIEF, TRAVEL BRANCH ADJUDICATIONS AND ADVISORY DIVISION, CONCERNING THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT DATED NOVEMBER 21, 1958, WHICH DISALLOWED THE CLAIM OF AIRMAN FIRST CLASS BOBBY V. LAMM, FOR REIMBURSEMENT OF HIS WIFE'S TRAVEL FROM MANCHESTER, ENGLAND, TO NEW YORK, NEW YORK, INCIDENT TO ORDERS DATED MARCH 18, 1958.

THE CLAIM WAS FORWARDED HERE BY THE AIR FORCE ACCOUNTING AND FINANCE CENTER (IN ACCORDANCE WITH 1 GAO 3050.10-GENERAL ACCOUNTING OFFICE POLICY AND PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES), FOR CONSIDERATION AS A MERITORIOUS CLAIM UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236, WHICH PROVIDES AS FOLLOWS:

"WHEN THERE IS FILED IN THE GENERAL ACCOUNTING OFFICE A CLAIM OR DEMAND AGAINST THE UNITED STATES THAT MAY NOT LAWFULLY BE ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM OR DEMAND IN THE JUDGMENT OF THE COMPTROLLER GENERAL OF THE UNITED STATES CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, HE SHALL SUBMIT THE SAME TO THE CONGRESS BY A SPECIAL REPORT CONTAINING THE MATERIAL FACTS AND HIS RECOMMENDATION THEREON."

IN THE LETTER OF DECEMBER 9, 1958, ATTENTION IS INVITED TO THE STATEMENT CONTAINED IN THE LAST PARAGRAPH OF OUR SETTLEMENT OF NOVEMBER 21, 1958, TO THE EFFECT THAT THERE IS NO LEGAL BASIS FOR PAYMENT OF THE CLAIM. THE LETTER THEN STATES:

"*** WE FREQUENTLY HAVE CLAIMS THAT ARE NOT LEGALLY PAYABLE, BUT WHICH SEEM TO HAVE SUCH EQUITY FACTORS THAT ENTITLE THEM TO FURTHER CONSIDERATION. IN ORDER THAT WE MAY DO A BETTER JOB ON THEM, WE WOULD APPRECIATE YOUR ADVICE, SUGGESTIONS, AND IF POSSIBLE, GROUND RULES FOR PROCESSING."

THE RECORD SHOWS THAT BY ORDERS OF MARCH 18, 1958, THE AIRMAN WAS RELIEVED FROM DUTY AT HIS OVERSEAS STATION IN ENGLAND, AND WAS DIRECTED TO PROCEED TO ANOTHER STATION AND REPORT NOT LATER THAN MARCH 30, 1958, FOR FLIGHT TO THE UNITED STATES BY GOVERNMENT AIRCRAFT. CONCURRENT TRAVEL OF HIS DEPENDENTS WAS AUTHORIZED. IT APPEARS THAT THE ORDER ISSUING AUTHORITY WAS UNDER THE MISTAKEN IMPRESSION THAT THE AIRMAN'S WIFE WOULD BE PERMITTED TO TRAVEL BY GOVERNMENT AIRCRAFT DESPITE THE FACT THAT SHE WAS IN THE EIGHTH MONTH OF PREGNANCY AT THE TIME. HOWEVER, SHE WAS REFUSED GOVERNMENT AIR TRANSPORTATION UNDER REGULATIONS WHICH BARRED TRAVEL ON MATS AIRCRAFT BY FEMALE DEPENDENTS WHO WERE BEYOND THE END OF THE SEVENTH CALENDAR MONTH OF PREGNANCY. WHILE GOVERNMENT TRANSPORTATION COULD HAVE BEEN FURNISHED HER ON A PERMISSIVE BASIS AT THAT TIME EXCEPT FOR THE FACT OF HER PREGNANCY, THE AIRMAN HAD NO RIGHT TO HAVE HIS WIFE TRANSPORTED AT GOVERNMENT EXPENSE, SINCE HE WAS IN PAY GRADE E-4 AND IT APPEARS THAT HE DID NOT HAVE FOUR YEARS OF SERVICE UNTIL APRIL 26, 1958. SEE PARAGRAPH 7000, JOINT TRAVEL REGULATIONS.

HENCE, REGARDLESS OF THE REASON FOR THE FAILURE TO FURNISH TRANSPORTATION FOR HIS WIFE TO THE UNITED STATES, NO ELEMENT OF LEGAL LIABILITY SUPPORTS HIS CLAIM.

WHILE IT APPEARS THAT THE AIR FORCE MIGHT HAVE PREVENTED THE SITUATION WHICH OCCURRED, AND BY EITHER ADVANCING HIS TRANSFER A FEW WEEKS OR DELAYING SUCH TRANSFER UNTIL AFTER APRIL 26, 1958, COULD HAVE PRODUCED A SITUATION WHICH WOULD HAVE RESULTED IN HIS WIFE HAVING BEEN FURNISHED TRANSPORTATION BY THE GOVERNMENT ON EITHER A PERMISSIVE BASIS OR AS A MATTER OF RIGHT, THE FAILURE TO TAKE SUCH ACTION DID NOT GIVE RISE TO SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD WARRANT REPORTING THE MATTER TO CONGRESS UNDER THE ACT OF APRIL 10, 1928, 31 U.S.C. 236.

WHILE THE ACT OF APRIL 10, 1928, CONTEMPLATES THE REPORTING TO THE CONGRESS FOR ITS CONSIDERATION OF CERTAIN CLAIMS FILED IN THE GENERAL ACCOUNTING OFFICE, THE PROVISIONS OF THE ACT MAY BE INVOKED ONLY WHEN IT IS DETERMINED THAT THE CLAIM "CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS."

AS POINTED OUT ABOVE, THERE IS NO SPECIFIC STATUTORY AUTHORITY AUTHORIZING TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE OF MEMBERS IN PAY GRADE E-4 WITH FOUR YEARS SERVICE OR LESS, AS IN AIRMAN LAMM'S CASE. RATHER, THE JOINT TRAVEL REGULATIONS (PARAGRAPH 7000), WHICH WERE PROMULGATED PURSUANT TO LAW, EXPRESSLY PRECLUDES ENTITLEMENT TO MEMBERS IN THAT CATEGORY. THERE BEING NO LIABILITY ON THE PART OF THE GOVERNMENT IN THIS CASE, THE MATTER IS NOT WITHIN THE PURVIEW OF THE MERITORIOUS CLAIMS ACT. COMPARE B-137468, OCTOBER 17, 1958, 38 COMP. GEN. 314, COPY ENCLOSED.

WE HAVE NO "GROUND RULES" THAT WILL AID YOUR OFFICE IN PROCESSING CLAIMS TO BE SUBMITTED HERE FOR CONSIDERATION UNDER THE STATUTE IN QUESTION. UNDER THE EXPRESS LANGUAGE IN THAT ACT WE ARE REQUIRED TO DETERMINE WHETHER A CLAIM CONTAINS THE NECESSARY ELEMENTS OF LEGAL LIABILITY OR EQUITY. EACH CLAIM MUST BE CONSIDERED ON ITS MERITS. IF YOUR OFFICE HAS ANY DOUBT AS TO WHETHER A PARTICULAR CLAIM WARRANTS CONSIDERATION UNDER THOSE PROVISIONS, THE CLAIM SHOULD BE SUBMITTED TO OUR CLAIMS DIVISION WITH A COMPLETE REPORT SETTING FORTH ALL THE FACTS AND REQUESTING THAT THE MATTER BE CONSIDERED UNDER THAT ACT.