B-141297, FEB. 29, 1960

B-141297: Feb 29, 1960

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WAS FORWARDED HERE BY THE DEPARTMENT OF THE NAVY ON NOVEMBER 6. THE CLAIMS ARE FOR TRAVEL OF THE DECEDENT'S DEPENDENTS AND/OR DISLOCATION ALLOWANCE. SINCE THE CLAIM FOR REIMBURSEMENT FOR THE COST OF SHIPPING THE HOUSEHOLD EFFECTS WAS DISALLOWED BY SETTLEMENT DATED MAY 29. YOUR LETTER WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF THAT SETTLEMENT. WILL RECEIVE INITIAL CONSIDERATION AT THIS TIME. THE RECORD SHOWS THAT YOUR LATE HUSBAND WAS ORDERED FROM HIS HOME. THE HOUSEHOLD EFFECTS APPARENTLY WERE SHIPPED IN AUGUST 1958. WERE DELIVERED TO YOU ON OCTOBER 6. TRANSPORTATION FOR DEPENDENTS AND BAGGAGE AND HOUSEHOLD EFFECTS IS AUTHORIZED UPON THE DEATH OF A MEMBER OF THE UNIFORMED SERVICES WHILE ENTITLED TO RECEIVE BASIC PAY UNDER SECTION 201 (E) OF THAT ACT.

B-141297, FEB. 29, 1960

TO MRS. JOSEPHINE G. BRADFORD:

YOUR LETTER OF SEPTEMBER 9, 1959, RESUBMITTING YOUR CLAIMS AS WIDOW OF WILLIAM G. BRADFORD, BMSCA, 8301596, DECEASED, WAS FORWARDED HERE BY THE DEPARTMENT OF THE NAVY ON NOVEMBER 6, 1959. THE CLAIMS ARE FOR TRAVEL OF THE DECEDENT'S DEPENDENTS AND/OR DISLOCATION ALLOWANCE, AND SHIPMENT OF HIS HOUSEHOLD EFFECTS FROM MIAMI, FLORIDA, TO GRAND RAPIDS, MICHIGAN, INCIDENT TO HIS DEATH.

SINCE THE CLAIM FOR REIMBURSEMENT FOR THE COST OF SHIPPING THE HOUSEHOLD EFFECTS WAS DISALLOWED BY SETTLEMENT DATED MAY 29, 1959, YOUR LETTER WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF THAT SETTLEMENT. THE CLAIM RELATING TO TRAVEL OF DEPENDENTS AND/OR DISLOCATION ALLOWANCE, NOT PREVIOUSLY SUBMITTED HERE, WILL RECEIVE INITIAL CONSIDERATION AT THIS TIME.

THE RECORD SHOWS THAT YOUR LATE HUSBAND WAS ORDERED FROM HIS HOME, MIAMI, FLORIDA, TO CHARLESTON, SOUTH CAROLINA, FOR TWO WEEKS' TRAINING DUTY IN THE NAVAL RESERVE COMMENCING JULY 20, 1958, AND THAT HIS DEATH OCCURRED ON JULY 26, 1958. YOU AND YOUR CHILDREN MOVED FROM MIAMI TO GRAND RAPIDS DURING THE PERIOD AUGUST 22 TO 26, 1958. THE HOUSEHOLD EFFECTS APPARENTLY WERE SHIPPED IN AUGUST 1958, AND WERE DELIVERED TO YOU ON OCTOBER 6, 1958, HAVING BEEN IN STORAGE IN TRANSIT SINCE AUGUST 30, 1958. IN YOUR PRESENT LETTER YOU STATE THAT NAVAL PERSONNEL AT OPALOCKA NAVAL AIR STATION, MIAMI, FLORIDA, ADVISED YOU THE MOVE COULD BE MADE AT GOVERNMENT EXPENSE.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED, TRANSPORTATION FOR DEPENDENTS AND BAGGAGE AND HOUSEHOLD EFFECTS IS AUTHORIZED UPON THE DEATH OF A MEMBER OF THE UNIFORMED SERVICES WHILE ENTITLED TO RECEIVE BASIC PAY UNDER SECTION 201 (E) OF THAT ACT. TRANSPORTATION OF DEPENDENTS NORMALLY IS AUTHORIZED UPON PERMANENT CHANGE OF STATION FOR THE MEMBER, INCLUDING THE CHANGE FROM HOME TO FIRST STATION AND FROM LAST STATION TO HOME, AND TRANSPORTATION OF HOUSEHOLD EFFECTS IS AUTHORIZED "IN CONNECTION WITH A CHANGE OF STATION.' IT IS OUR VIEW, THEREFORE, THAT THE PROVISION OF LAW AUTHORIZING SUCH TRANSPORTATION OF DEPENDENTS AND EFFECTS UPON A MEMBER'S DEATH IN THE SERVICE REFERS TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS THEN LOCATED AWAY FROM HIS HOME BY REASON OF HIS SERVICE. THE REGULATIONS PROMULGATED BY THE SECRETARIES PURSUANT TO THAT ACT COVERING THE TRANSPORTATION OF HOUSEHOLD EFFECTS CLEARLY ARE BASED ON THAT CONCEPT OF THE LAW, PARAGRAPH 8011 OF THE JOINT TRAVEL REGULATIONS, CHANGE 54, JANUARY 1, 1957, SPECIFICALLY PROVIDING FOR SHIPMENT OF HOUSEHOLD EFFECTS FROM THE MEMBER'S "LAST DUTY STATION, OR PLACE TO WHICH SUCH GOODS WERE LAST SHIPPED AT GOVERNMENT EXPENSE, OR BOTH," INCIDENT TO HIS DEATH WHILE ON ACTIVE DUTY. WHILE THE REGULATIONS COVERING TRANSPORTATION OF DEPENDENTS IN THE EVENT OF A MEMBER'S DEATH WHILE SERVING ON ACTIVE DUTY (PARAGRAPH 7010, JOINT TRAVEL REGULATIONS) PROVIDE MERELY THAT DEPENDENTS "MAY BE MOVED AT GOVERNMENT EXPENSE TO ANY PLACE THEY MAY IGNATE," THERE IS NO INDICATION THAT THAT REGULATION WAS INTENDED TO AUTHORIZE TRANSPORTATION FROM THE MEMBER'S HOME IN THE CASE OF A MEMBER ON TWO WEEKS' TRAINING DUTY. TO CONSTRUE THAT REGULATION TO AUTHORIZE SUCH TRANSPORTATION WOULD BE ENTIRELY INCONSISTENT WITH THE SPECIFIC PROVISIONS OF THE CITED REGULATIONS COVERING TRANSPORTATION OF HOUSEHOLD EFFECTS.

THERE IS NO PROVISION FOR MOVEMENT OF DEPENDENTS OR HOUSEHOLD EFFECTS OF A MEMBER SERVING ON TWO WEEKS' TRAINING DUTY, THERE BEING NO AUTHORITY TO TRANSPORT HIS DEPENDENTS OR EFFECTS AWAY FROM HIS HOME TO HIS STATION OR FROM HIS STATION TO HIS HOME. HENCE UNDER THE ORDERS RECEIVED BY YOUR LATE HUSBAND NO RIGHT TO TRANSPORTATION OF DEPENDENTS OR HOUSEHOLD EFFECTS ACCRUED INCIDENT TO HIS ASSIGNMENT TO TWO WEEKS' RESERVE TRAINING DUTY AND UNDER THE CONTROLLING REGULATIONS THERE WAS NO AUTHORITY TO MOVE HIS DEPENDENTS AND EFFECTS FROM HIS HOME TO SOME OTHER PLACE INCIDENT TO HIS DEATH WHILE SERVING ON SUCH TRAINING DUTY. ALSO, SINCE PAYMENT OF A DISLOCATION ALLOWANCE IS LIMITED BY SECTION 303 (C) OF THE CAREER COMPENSATION ACT, MENTIONED ABOVE, TO SITUATIONS WHERE DEPENDENTS ARE AUTHORIZED TO MOVE IN CONNECTION WITH A PERMANENT CHANGE OF STATION, EXCLUDING THE CHANGE INVOLVED IN TERMINATION OF SERVICE, THERE IS NO LEGAL BASIS FOR THE PAYMENT OF THAT ALLOWANCE IN THIS CASE.

WHILE YOU HAVE STATED THAT YOU WERE ADVISED BY NAVAL PERSONNEL THAT THE EXPENSE OF YOUR MOVE FROM YOUR HOME WOULD BE PAID BY THE DEPARTMENT OF THE NAVY, SUCH ERRONEOUS ADVICE AFFORDS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM. IT IS WELL ESTABLISHED THAT IN THE ABSENCE OF A STATUTE SO PROVIDING THE GOVERNMENT IS NOT LIABLE FOR LOSS OR DAMAGE RESULTING FROM NEGLIGENT ACTS OR OMISSIONS OF DUTY OF OFFICERS OR AGENTS EMPLOYED IN THE PUBLIC SERVICE. SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515, AND CASES THERE CITED.

ACCORDINGLY, WE HAVE NO ALTERNATIVE OTHER THAN TO SUSTAIN THE ACTION TAKEN IN THE SETTLEMENT OF MAY 29, 1959, AND DISALLOW YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL OF DEPENDENTS AND/OR DISLOCATION ALLOWANCE.