B-144961, APR. 12, 1961

B-144961, APR. 12, 1961

TO TECHNICAL SERGEANT JOHN B. PEIRCE:

YOUR LETTER OF JANUARY 23, 1961, REQUESTS CONSIDERATION OF YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF COMMERCIAL STORAGE OF YOUR HOUSEHOLD EFFECTS UNDER THE MERITORIOUS CLAIMS ACT, 31 U.S.C. 236.

IT APPEARS THAT IN JUNE 1953, UPON RECEIPT OF INFORMATION THAT YOU WOULD BE ASSIGNED TO DUTY OVERSEAS, YOU CONTACTED THE ARMY BASE AT BOSTON, MASSACHUSETTS, RELATIVE TO STORAGE OF YOUR HOUSEHOLD EFFECTS AND WERE INFORMED THAT STORAGE COULD NOT BE FURNISHED AT THAT TIME BUT THAT YOU SHOULD WAIT UNTIL YOU RECEIVED ORDERS ASSIGNING YOU TO DUTY OVERSEAS. YOU FURTHER SAY THAT YOU WERE ADVISED THAT IF YOU SO DESIRED YOU COULD PLACE YOUR EFFECTS IN COMMERCIAL STORAGE WITH MACDONALD'S STORAGE IN ATTLEBORO, MASSACHUSETTS, WHICH WAS THE NEAREST AUTHORIZED GOVERNMENT CONTRACT MOVERS AND STORAGE ON THE LIST. YOU HAD YOUR EFFECTS, WEIGHING 3,100 POUNDS INCLUDING 300 POUNDS OF PROFESSIONAL BOOKS, MOVED TO SUCH STORAGE ON JUNE 30, 1953, AND LEFT THEM THERE UNTIL JULY 30, 1958, AT A COST OF $346.90.

BY PARAGRAPH 3, SPECIAL ORDERS NO. 162, DATED AUGUST 20, 1953, YOU WERE TRANSFERRED FROM DETACHMENT NO. 355, BOSTON UNIVERSITY, BOSTON,MASSACHUSETTS, TO CAMP KILMER, NEW JERSEY, FOR ASSIGNMENT TO DUTY OVERSEAS. THE LATTER WAS ACCOMPLISHED BY PARAGRAPH 56, SPECIAL ORDERS 234, DATED OCTOBER 5, 1953, AND PARAGRAPH 17, SPECIAL ORDERS NO. 246, DATED OCTOBER 19, 1953. YOU SAY THAT IN SEPTEMBER 1953, AFTER YOU RECEIVED THE ORDERS FOR OVERSEAS ASSIGNMENT, YOUR WIFE WENT TO THE BOSTON ARMY BASE WITH COPIES OF YOUR ORDERS AND REQUESTED FURTHER INFORMATION AND WAS ADVISED TO LEAVE THE HOUSEHOLD GOODS WHERE THEY WERE UNTIL YOU WERE READY FOR SHIPMENT TO YOUR OVERSEAS STATION AT WHICH TIME YOU COULD EXECUTE AN APPLICATION FOR SHIPMENT. IT FURTHER APPEARS THAT UPON YOUR WIFE'S ARRIVAL IN NORTH AFRICA ON DECEMBER 31, 1953, UNFURNISHED HOUSING WAS NOT AVAILABLE FOR YOU AND, CONSEQUENTLY, YOU SAY YOU DID NOT REQUEST SHIPMENT OF YOUR HOUSEHOLD EFFECTS.

BY PARAGRAPH 1, SPECIAL ORDERS NO. 65, DATED MARCH 21, 1956, YOU WERE RETURNED TO THE UNITED STATES AND ASSIGNED TO SHEPPARD AIR FORCE BASE, WICHITA FALLS, TEXAS. YOU SAY THAT IN JUNE 1956, YOU APPLIED FOR SHIPMENT OF YOUR HOUSEHOLD EFFECTS TO SHEPPARD AIR FORCE BASE AND LEARNED THAT THE STORAGE COMPANY WOULD NOT RELEASE YOUR EFFECTS FROM STORAGE UNTIL THE CHARGES WERE PAID. SINCE YOU WERE NOT IN A POSITION TO PAY SUCH CHARGES, THE EFFECTS REMAINED IN STORAGE.

BY PARAGRAPH 8, SPECIAL ORDERS NO. A-284, DATED APRIL 10, 1958, YOU WERE TRANSFERRED FROM SHEPPARD AIR FORCE BASE TO LAURENCE G. HANSCOM FIELD, BEDFORD, MASSACHUSETTS. THEREAFTER, YOU PAID THE STORAGE CHARGES AND HAD THE EFFECTS MOVED TO YOUR RESIDENCE AT THE NEW STATION. YOUR CLAIM FOR STORAGE AND RELATED CHARGES FOR THE PERIOD JUNE 30, 1953, TO JULY 30, 1958, WAS DENIED BY THE DEPARTMENT OF THE AIR FORCE WHO SUGGESTED THAT THIS OFFICE COULD CONSIDER THE MATTER UNDER THE MERITORIOUS CLAIMS ACT. IN PRESENTING THE CLAIM HERE YOU ELIMINATED THE PERIOD JUNE 30 TO AUGUST 20, 1953, WHICH WAS PRIOR TO YOUR ORDERS FOR OVERSEAS DUTY.

THE MERITORIOUS CLAIMS ACT, 31 U.S.C. 236, 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.'

AT THE TIME YOUR EFFECTS WERE PLACED IN STORAGE AS WELL AS WHEN THE ORDERS OF AUGUST 20, 1953, WERE ISSUED, THE ONLY AUTHORITY FOR COMMERCIAL STORAGE OF HOUSEHOLD EFFECTS, NOT TO EXCEED SIX MONTHS, WAS INCIDENT TO AN ACTUAL SHIPMENT OF THE EFFECTS. SINCE THERE WAS NO ACTUAL SHIPMENT OF YOUR EFFECTS INCIDENT TO ORDERS ASSIGNING YOU TO DUTY OVERSEAS, THERE WAS NO AUTHORITY FOR COMMERCIAL STORAGE OF YOUR HOUSEHOLD EFFECTS AT PUBLIC EXPENSE. ENCLOSED IS A COPY OF DECISION B 117451, DATED JANUARY 26, 1954, PUBLISHED AT 33 COMP. GEN. 306, SETTING FORTH THIS RULE WHICH HAS UNIFORMLY BEEN APPLIED IN CASES SUCH AS YOURS.

UPON YOUR RETURN TO THE UNITED STATES AND ASSIGNMENT TO DUTY AT SHEPPARD AIR FORCE BASE YOU COULD HAVE REQUESTED SHIPMENT OF YOUR EFFECTS OR NONTEMPORARY STORAGE IN GOVERNMENT FACILITIES. IT SEEMS CLEAR, HOWEVER, THAT YOU DID NOT REQUEST SUCH STORAGE SINCE THE GOODS WOULD NOT BE RELEASED FROM COMMERCIAL STORAGE UNTIL THE STORAGE CHARGES WERE PAID. MOREOVER, AT THAT TIME ANY NONTEMPORARY STORAGE THAT COULD HAVE BEEN FURNISHED WOULD HAVE BEEN AT GOVERNMENT FACILITIES. SUCH STORAGE WAS A SERVICE WHICH COULD BE FURNISHED IN KIND ONLY, AND THE UNAVAILABILITY OF GOVERNMENT FACILITIES OR FAILURE OTHERWISE TO FURNISH SUCH STORAGE DID NOT GIVE RISE TO A RIGHT TO REIMBURSEMENT OF EXPENSES INCURRED FOR COMMERCIAL STORAGE OF SUCH EFFECTS.

EFFECTIVE DECEMBER 1, 1956, PARAGRAPH 8006-2 OF THE JOINT TRAVEL REGULATIONS WAS AMENDED TO PROVIDE THAT NONTEMPORARY STORAGE MAY BE IN EITHER GOVERNMENT OR COMMERCIAL FACILITIES, WHICHEVER IS DETERMINED TO BE MORE ECONOMICAL TO THE GOVERNMENT BY THE TRANSPORTATION OFFICER. THIS REGULATION DID NOT HAVE THE EFFECT OF AUTOMATICALLY AUTHORIZING EFFECTIVE DECEMBER 1, 1956, THE PAYMENT OF CHARGES ON GOODS PREVIOUSLY PLACED IN COMMERCIAL STORAGE WHICH WERE ALLOWED TO REMAIN THERE WITHOUT ANY FURTHER REQUEST OR DETERMINATION IN THE MATTER. THERE IS NO EVIDENCE THAT YOU REQUESTED STORAGE IN EITHER COMMERCIAL OR GOVERNMENT FACILITIES AFTER SUCH EFFECTIVE DATE. ACCORDINGLY, ON THE PRESENT RECORD, THERE IS NO BASIS FOR A CONCLUSION THAT THE GOVERNMENT IS LEGALLY LIABLE TO REIMBURSE YOU FOR THE CHARGES INCIDENT TO THE STORAGE OF YOUR EFFECTS.

WITH REGARD TO POSSIBLE ELEMENTS OF EQUITY IN YOUR CASE, AS STATED ABOVE, THE GOODS WERE PLACED IN COMMERCIAL STORAGE OF YOUR OWN VOLITION BEFORE ORDERS WERE ISSUED DIRECTING A PERMANENT CHANGE OF STATION. IN A STATEMENT EXECUTED IN 1959, YOUR WIFE SAYS THAT IN SEPTEMBER 1953 SHE REQUESTED THAT THE GOODS BE TRANSFERRED FROM COMMERCIAL STORAGE TO GOVERNMENT FACILITIES UNTIL SHIPMENT COULD BE MADE TO YOUR OVERSEAS STATION AND THAT SHE WAS ASSURED THE MATTER WOULD BE PROPERLY HANDLED. HOWEVER, IT IS ADMINISTRATIVELY REPORTED THAT THERE IS NO RECORD OF SUCH A REQUEST FOR STORAGE. IN THE CIRCUMSTANCES, IT SEEMS MOST PROBABLE THAT ASSURANCES OF PROPER HANDLING RELATED TO THE PROSPECTIVE SHIPMENT OF THE GOODS OVERSEAS WHEN PROPERLY AUTHORIZED AND SINCE IT APPARENTLY WAS EXPECTED THAT AUTHORITY FOR THE OVERSEAS SHIPMENT WOULD BE ISSUED AT AN EARLY DATE, THERE IS DOUBT THAT MOVEMENT OF THE GOODS TO GOVERNMENT FACILITIES WOULD HAVE BEEN ADMINISTRATIVELY AUTHORIZED IN SEPTEMBER 1953, EVEN IF IT WERE ESTABLISHED THAT A PROPER REQUEST WAS RECEIVED AT THAT TIME. YOU DO NOT ALLEGE THAT WHILE OVERSEAS YOU MADE ANY FURTHER REQUEST FOR GOVERNMENT STORAGE AFTER IT WAS DETERMINED THAT YOUR GOODS WOULD NOT BE SHIPPED TO YOUR STATION. HOWEVER THAT MAY BE, THE REGULATIONS MADE NO PROVISION PRIOR TO DECEMBER 1, 1956, FOR NONTEMPORARY STORAGE AT GOVERNMENT EXPENSE. THEREFORE, EXPENSES FOR SUCH STORAGE UNIFORMLY HAVE BEEN REGARDED AS CHARGEABLE TO THE MEMBER RATHER THAN THE GOVERNMENT EVEN THOUGH STORAGE COULD HAVE BEEN FURNISHED IN GOVERNMENT FACILITIES. AND, WHERE THE MEMBER PLACED HIS GOODS IN COMMERCIAL FACILITIES PRIOR TO DECEMBER 1, 1956, AND PERMITTED THEM TO REMAIN THERE WITHOUT ANY FURTHER REQUEST AFTER THAT DATE FOR STORAGE AT GOVERNMENT EXPENSE, SUCH EXPENSES ALSO HAVE BEEN REGARDED AS CHARGEABLE TO THE MEMBER. TO ACCORD YOUR CLAIM DIFFERENT TREATMENT WOULD BE INEQUITABLE FROM THE STANDPOINT OF THE OTHER MEMBERS IN YOUR SITUATION.

THEREFORE, IT IS OUR VIEW THAT YOUR CLAIM FOR REIMBURSEMENT OF THE EXPENSES INCURRED DOES NOT CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO WARRANT REPORTING THE MATTER FOR THE CONSIDERATION OF THE CONGRESS. HOWEVER, THIS IS NOT TO BE UNDERSTOOD AS PRECLUDING FURTHER CONSIDERATION OF YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES THAT ACCRUED ON AND AFTER DECEMBER 1, 1956, SHOULD YOU SUBMIT EVIDENCE THAT AFTER THAT DATE YOU REQUESTED STORAGE AT GOVERNMENT EXPENSE.