B-144982, MAR. 21, 1961

B-144982, MAR. 21, 1961

TO ORAL L. SIMS:

REFERENCE IS MADE TO YOUR LETTER OF MAY 4, 1960 AND ATTACHMENTS, FORWARDED THROUGH ADMINISTRATIVE CHANNELS, IN WHICH YOU CLAIM $798.69 AS REIMBURSEMENT FOR EXPENSES INCURRED IN CONNECTION WITH THE ISSUANCE AND REVOCATION OF ORDERS, DATED MARCH 16, 1959, WHILE STATIONED AT GEIGER FIELD, SPOKANE, WASHINGTON.

THE RECORD SHOWS THAT ON MARCH 16, 1959, ORDERS WERE ISSUED RELIEVING YOU FROM ASSIGNMENT AT GEIGER FIELD AND DIRECTING YOU TO REPORT ON JUNE 12, 1959, AT MCGUIRE AIR FORCE BASE, NEW JERSEY, FOR FLIGHT TO YOUR NEW ASSIGNMENT AT SONDRESTROM, GREENLAND, WHICH ORDERS WERE REVOKED BY ORDERS OF APRIL 21, 1959. YOU STATE THAT BECAUSE OF THE ORDERED CHANGE OF STATION YOU MADE CLOTHING PURCHASES, HAD SERVICES PERFORMED ON YOUR CAR AND GAVE THE REQUIRED NOTICE TERMINATING YOUR HOUSE LEASE EFFECTIVE APRIL 10, 1959, ON WHICH DATE YOU WERE OBLIGED TO VACATE THE PREMISES, THEREBY INCURRING ADDITIONAL EXPENSES FOR MOTEL ACCOMMODATIONS AND SUBSISTENCE AS WELL AS ADDITIONAL EXPENSES FOR THE MOVEMENT AND STORAGE OF YOUR HOUSEHOLD EFFECTS. IT APPEARS THAT YOU WERE AWARE THAT REQUIREMENTS OF THE SERVICE COULD NECESSITATE CANCELLATION OF THE ORDERS BUT YOU SAY YOU CONSIDERED IT "UNREALISTIC TO LEAVE EVERYTHING UNDONE UNTIL THE LAST INSTANT BEFORE LEAVING THE DUTY STATION.' YOU CONTEND THAT, SINCE THESE ACTS OF PREPARATION WOULD NOT HAVE BEEN MADE BUT FOR THE ORDERS DESIGNATING THE OVERSEAS ASSIGNMENT, YOU SHOULD BE REIMBURSED FOR THE SUBJECT EXPENSES.

THE DEPARTMENT OF THE AIR FORCE DETERMINED IT DID NOT HAVE AUTHORITY TO MAKE REIMBURSEMENT FROM AVAILABLE APPROPRIATIONS, BUT SUGGESTED THAT THE CLAIM BE CONSIDERED UNDER THE MERITORIOUS CLAIMS ACT, 31 U.S.C. 236. WHILE YOU HAVE REQUESTED THAT THE CLAIM BE SETTLED UNDER THE PROVISIONS OF 31 U.S.C. 71, YOU APPARENTLY CONTEMPLATE THAT WE CONSIDER THE MATTER 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.'

THAT ACT CONTEMPLATES REPORTING TO THE CONGRESS FOR ITS CONSIDERATION ONLY THOSE CLAIMS WHEREIN THERE IS CONSIDERED TO BE "SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS.'

WITH RESPECT TO LEGAL LIABILITY ON THE PART OF THE GOVERNMENT FOR THE EXPENDITURES FOR WHICH YOU ASK REIMBURSEMENT, IT MAY BE NOTED THAT IF YOUR ORDERS FOR TRANSFER TO GREENLAND HAD REMAINED IN EFFECT THERE WOULD HAVE BEEN NO LEGAL BASIS FOR REIMBURSEMENT FOR SUCH EXPENDITURES, SINCE THEY WERE FOR YOUR PERSONAL USE AND BENEFIT. THE GOVERNMENT RECEIVED NO BENEFIT FROM THE EXPENDITURES AND THEREFORE HAS NOT BEEN UNJUSTLY ENRICHED. ACCORDINGLY, THERE IS NO LEGAL LIABILITY ON THE PART OF THE GOVERNMENT FOR THE EXPENDITURES.

IN CONSIDERING WHETHER ELEMENTS OF EQUITY ARE PRESENT IN YOUR CASE, IT APPEARS THAT FROM YOUR CONSIDERABLE EXPERIENCE IN THE SERVICE AND FROM YOUR OWN STATEMENTS THAT YOU WERE FULLY AWARE THAT YOUR ORDERS WERE SUBJECT TO CANCELLATION BEFORE BECOMING EFFECTIVE. NEVERTHELESS, YOU INCURRED EXPENSES AND MADE COMMITMENTS MUCH SOONER THAT THE TIME ELEMENTS OF THE ORDERED STATION CHANGE APPARENTLY REQUIRED. IT IS NOTED IN THIS RESPECT THAT YOU SAY THAT UNDER THE LAWS OF THE STATE OF WASHINGTON IT IS NECESSARY TO GIVE 30 DAYS' NOTICE PRIOR TO TERMINATION OF A LEASE SUCH AS THE ONE YOU HAD AND THAT UNDER THESE CIRCUMSTANCES YOU TERMINATED YOUR LEASE AND MOVED INTO A MOTEL AS THE LEAST EXPENSIVE TEMPORARY PLACE OF RESIDENCE. IF YOU GAVE THE REQUIRED 30-DAY NOTICE TERMINATING YOUR HOUSE LEASE ON APRIL 10, 1959, THE NOTICE MUST NECESSARILY HAVE ISSUED PRIOR TO MARCH 16, 1959, THE DATE OF YOUR ORDERS. IT FURTHER APPEARS THAT YOU COULD HAVE DELAYED GIVING THE 30-DAY NOTICE UNTIL ONE MONTH LATER, SO AS TO VACATE THE PREMISES ON MAY 10, 1959, AND STILL WOULD HAVE HAD AMPLE TIME THEREAFTER TO MOVE YOUR EFFECTS, MAKE THE PURCHASES, AND ARRIVE AT MCGUIRE AIR FORCE BASE ON JUNE 12, AS DIRECTED. IF SUCH HAD BEEN THE CASE THERE WOULD HAVE BEEN NO EXTRA EXPENSES INCURRED SINCE YOU WOULD HAVE RECEIVED PRIOR NOTIFICATION OF THE CANCELLATION OF YOUR ORDERS. 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. YOUR CLAIM IS SIMILAR TO THE CLAIM OF LIEUTENANT COLONEL DAVID V. SMITH, JR., WHICH WAS CONSIDERED IN OUR DECISION OF MARCH 9, 1961, B- 144786, A COPY OF WHICH IS ENCLOSED FOR YOUR INFORMATION.