B-140231, AUG. 21, 1959

B-140231, AUG. 21, 1959

TO LIEUTENANT MELVIN W. KUGLER, USN, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 27, 1959, REQUESTING REVIEW OF THE SETTLEMENT OF JUNE 10, 1959, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $160.04, DEDUCTED FROM YOUR PAY AS THE COST OF SHIPPING YOUR HOUSEHOLD EFFECTS FROM NORFOLK, VIRGINIA, TO WASHINGTON, D.C., INCIDENT TO YOUR RETIREMENT.

BY BUREAU OF NAVAL PERSONNEL DISPATCH ORDERS DATED MAY 21, 1956, YOU WERE RELIEVED FROM ALL ACTIVE DUTY ON JUNE 30, 1956, DIRECTED TO PROCEED TO YOUR "HOME OF SELECTION," AND RETIRED EFFECTIVE JULY 1, 1956. ON JUNE 22, 1956, YOU EXECUTED AN APPLICATION REQUESTING THE COMMANDING OFFICER, NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA, TO SHIP YOUR HOUSEHOLD GOODS FROM NORFOLK, VIRGINIA, TO WASHINGTON, D.C. IN EXECUTING THE APPLICATION YOU AGREED TO PAY ALL COSTS NOT AUTHORIZED BY CONTROLLING REGULATIONS. THE SHIPMENT WAS MADE ON A GOVERNMENT BILL OF LADING AT A COST OF $160.04. SINCE, UNDER CONTROLLING REGULATIONS, YOU WERE ENTITLED TO SHIP YOUR HOUSEHOLD GOODS TO THE HOME OF YOUR SELECTION, AND SINCE YOU WERE REIMBURSED FOR MILEAGE AND TRANSPORTATION OF YOUR DEPENDENT FROM NORFOLK, VIRGINIA, TO LAPERIA, TEXAS, THE COST OF THE SHIPMENT WAS DEDUCTED FROM YOUR PAY. YOUR CLAIM FOR REFUND WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASONS STATED THEREIN. IN YOUR PRESENT LETTER YOU APPARENTLY QUESTION THE STATEMENT IN THE SETTLEMENT THAT YOUR HOME OF SELECTION IS LAPERIA, AND POINT OUT THAT THE FIRST ENDORSEMENT TO YOUR ORDERS REFERS TO LAPERIA AS YOUR PERMANENT ADDRESS. ALSO, YOU STATE YOU REQUESTED SHIPMENT BUT DID NOT AUTHORIZE IT; THAT IT MUST BE ASSUMED THE PROVISIONS OF THE JOINT TRAVEL REGULATIONS CITED IN THE SETTLEMENT WERE IN EFFECT AT THE TIME HERE INVOLVED, AND THAT THE SHIPPING OFFICER KNEW THE REGULATION. IT IS YOUR FURTHER CONTENTION THAT THE SHIPPING OFFICER KNEW THE REGULATION. IT IS YOUR FURTHER CONTENTION THAT THE SHIPPING OFFICER DID NOT COMPLY WITH THE REGULATIONS. YOU STATE YOU ARE SURE THE CONGRESS AND THE DEPARTMENT OF DEFENSE HAD NO INTENTION OF DEPRIVING A SERVICEMAN OF THE BENEFITS OF TRANSPORTATION OF HOUSEHOLD EFFECTS, AND REQUEST THAT YOU BE ADVISED WHAT COURSE OF ACTION WE WOULD RECOMMEND FOR RECOVERY OF THE $160.04.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, AS AMENDED BY THE ACT OF AUGUST 11, 1955, 69 STAT. 691, 37 U.S.C. 253, PROVIDES THAT UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED WITH PAY IS ENTITLED TO TRANSPORTATION FOR HIS DEPENDENTS AND HOUSEHOLD EFFECTS "TO THE HOME SELECTED FOR ALLOWANCE PURPOSES UNDER SUBSECTION (A) OF THIS SECTION.' SECTION 303 (A) OF THE CAREER COMPENSATION ACT, AS AMENDED BY THE SAID ACT OF AUGUST 11, 1955, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED WITH PAY MAY SELECT HIS HOME FOR THE PURPOSE OF TRAVEL AND TRANSPORTATION ALLOWANCES. PARAGRAPH 8009-6 OF THE JOINT TRAVEL REGULATIONS (CHANGE 43, EFFECTIVE AUGUST 11, 1955) AUTHORIZES A MEMBER UPON RETIREMENT TO SHIP HIS HOUSEHOLD EFFECTS FROM HIS LAST DUTY STATION, OR ANY OTHER PLACE TO WHICH THEY PREVIOUSLY WERE SHIPPED, TO THE HOME SELECTED BY HIM FOR THE PURPOSE OF RECEIVING ALLOWANCES FOR HIS TRAVEL, AND PROVIDES THAT SHIPMENT OF HOUSEHOLD EFFECTS "TO ANY PLACE OTHER THAN HOME OF SELECTION IS NOT AUTHORIZED, COMPARATIVE COST NOTWITHSTANDING.' THUS, IT SEEMS CLEAR THAT THE CONGRESS AND THE DEPARTMENT OF DEFENSE INTENDED TO LIMIT SHIPMENTS OF HOUSEHOLD EFFECTS UPON RETIREMENT TO SHIPMENT TO THE HOME SELECTED BY THE MEMBER. SINCE THE REGULATION HAD BEEN IN EFFECT FOR SOME TIME WHEN YOUR EFFECTS WERE SHIPPED, THE RESPONSIBLE ASSUMPTION IS THAT THE NAVY SHIPPING OFFICER WAS AWARE OF IT AND COMPLIED WITH YOUR REQUEST AS A MATTER OF CONVENIENCE TO YOU, YOU HAVING AGREED TO PAY THE COST OF ANY SHIPMENT NOT AUTHORIZED BY REGULATIONS. IN ANY EVENT, THE SHIPMENT HAVING BEEN MADE AND YOU HAVING RECEIVED THE BENEFIT OF IT, LEGAL PRECEDENTS SUPPORT THE VIEW THAT YOU MUST PAY THE COST INCURRED BY THE GOVERNMENT IN MAKING AN UNAUTHORIZED SHIPMENT, I.E., TO A POINT OTHER THAN YOUR SELECTED HOME. IF, AS NOW INFERRED BY YOU, LAPERIA IS NOT IN FACT THE HOME OF YOUR SELECTION AS REPORTED BY THE DEPARTMENT OF THE NAVY, THE PAYMENTS OF MILEAGE FOR YOUR TRAVEL AND REIMBURSEMENT FOR YOUR WIFE'S TRAVEL TO THAT TOWN WERE ERRONEOUS.

SINCE THERE IS NO LEGAL BASIS FOR PAYMENT OF YOUR CLAIM THE SETTLEMENT OF JUNE 10, 1959, WAS CORRECT AND IS SUSTAINED. SUCH ACTION, AS IN THE CASE OF ALL CLAIMS AGAINST THE UNITED STATES, IS FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. HOWEVER, INDEPENDENTLY OF THE ACTION OF THIS OFFICE, THE COURT OF CLAIMS OF THE UNITED STATES HAS JURISDICTION TO CONSIDER AND DETERMINE CERTAIN CLAIMS AGAINST THE GOVERNMENT IF FILED THERE WITHIN SIX YEARS AFTER THE CLAIM FIRST ACCRUES. 28 U.S.C. 262.