B-152500, OCT. 7, 1963

B-152500, OCT. 7, 1963

TO LIEUTENANT COLONEL JOSEPH D. HILDEBRAND, RET.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 21, 1963, IN EFFECT REQUESTING REVIEW OF SETTLEMENT DATED AUGUST 15, 1963, WHICH DISALLOWED YOUR CLAIM FOR STORAGE OF YOUR HOUSEHOLD AFFECTS FOR ANY PERIOD SUBSEQUENT TO NOVEMBER 30, 1962, INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY AND RETIREMENT. ALSO, THE SETTLEMENT DISALLOWED ANY CLAIM FOR THE COST OF SHIPPING THE GOODS TO HAWAII.

BY SPECIAL ORDERS NO. AB-9573, DATED OCTOBER 25, 1961, YOU WERE RELIEVED FROM ASSIGNMENT TO DUTY AT MCGUIRE AIR FORCE BASE, NEW JERSEY, EFFECTIVE NOVEMBER 30, 1961, PLACED ON THE UNITED STATES AIR FORCE RESERVE RETIRED LIST EFFECTIVE DECEMBER 1, 1961, AND DIRECTED TO PROCEED TO YOUR HOME OF SELECTION. THE ORDERS STATED THAT YOUR MAILING ADDRESS WAS UNKNOWN. APPARENTLY YOUR HOUSEHOLD EFFECTS WERE PLACED IN NONTEMPORARY COMMERCIAL STORAGE AT GOVERNMENT EXPENSE IN WRIGHTSTOWN, NEW JERSEY, AT THE TIME OF YOUR RETIREMENT. SPECIAL ORDER M-56, DATED FEBRUARY 20, 1962, AUTHORIZED YOU TO PROCEED ON MARCH 22, 1962, TO HOME OF SELECTION, HONOLULU, HAWAII, FOR THE PURPOSE OF ESTABLISHING A RESIDENCE AFTER RETIREMENT. SHIPMENT OF HOUSEHOLD GOODS TO HOME OF SELECTION WAS SPECIFICALLY AUTHORIZED BY THE ORDERS. APPARENTLY YOUR DEPARTURE WAS DELAYED FOR PERSONAL REASONS SINCE IT APPEARS FROM YOUR STATEMENT DATED MAY 5, 1963, THAT YOU DID NOT ARRIVE IN HONOLULU UNTIL SEPTEMBER 29, 1962. YOU SAY THAT ON APPROXIMATELY NOVEMBER 27, 1962, YOU CONTACTED AIR FORCE PERSONNEL AT KICKAM AIR FORCE BASE ABOUT SHIPMENT OF YOUR HOUSEHOLD EFFECTS FROM STORAGE TO HONOLULU, AND THEREAFTER ON THAT DATE ADDRESSED AN APPLICATION FOR SHIPMENT TO THE TRANSPORTATION OFFICER AT MCGUIRE AIR FORCE BASE. HOWEVER, IT IS REPORTED THAT YOUR APPLICATION WAS NOT RECEIVED AT MCGUIRE AIR FORCE BASE WITHIN ONE YEAR OF TERMINATION OF ACTIVE DUTY AND, THEREFORE, THAT THE EFFECTS WERE NOT SHIPPED. THE STORAGE COMPANY'S CHARGES WERE PAID BY THE GOVERNMENT THROUGH NOVEMBER 30, 1962.

IN YOUR LETTER OF JULY 16, 1963, TO THIS OFFICE YOU REQUESTED THAT YOUR ENTITLEMENT TO SHIPMENT OF YOUR HOUSEHOLD GOODS TO YOUR HOME OF SELECTION BE REINSTATED AND THAT THE STORAGE CHARGES FOR THE PERIOD SUBSEQUENT TO YOUR ORIGINAL ENTITLEMENT BE PAID BY THE GOVERNMENT. THE SETTLEMENT DISALLOWED YOUR CLAIM FOR THE STORAGE CHARGES WHICH HAVE ACCRUED SUBSEQUENT TO NOVEMBER 30, 1962, AND ANY CLAIM YOU MAY HAVE ARISING FROM THE COST OF SHIPMENT. IN YOUR PRESENT LETTER YOU POINT OUT THAT THE EFFECTS ARE STILL IN COMMERCIAL STORAGE AND REQUEST THAT YOUR PRESENT LETTER AND THE ONE OF JULY 16, 1963, BE REFERRED TO THE OFFICE "HAVING FUNCTIONAL INTEREST OR RESPONSIBILITY.'

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (A), IN EFFECT WHEN YOU WERE RELEASED FROM ACTIVE DUTY, PROVIDES THAT UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED IN THE CIRCUMSTANCES INVOLVED IN YOUR CASE MAY SELECT HIS HOME FOR THE PURPOSES OF PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES. SECTION 303 (C) OF THE ACT, 37 U.S.C. 253 (C), IN EFFECT AT THAT TIME, SIMILARLY PROVIDES THAT, UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER WHO IS RETIRED IN THE CIRCUMSTANCES DESCRIBED IS ENTITLED TO TRANSPORTATION FOR HIS DEPENDENTS, BAGGAGE AND HOUSEHOLD EFFECTS TO THE HOME SELECTED UNDER SECTION 303 (A).

PARAGRAPH 4158-1 (A) OF THE JOINT TRAVEL REGULATIONS IN EFFECT AT THE TIME HERE INVOLVED PROVIDES THAT A MEMBER UPON RETIREMENT MAY SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCES THERETO, PROVIDED THAT TRAVEL IS COMPLETED TO THE SELECTED HOME WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY. PARAGRAPH 8260 OF THE REGULATIONS PROVIDES FOR SHIPMENT OF HOUSEHOLD GOODS TO THE HOME SELECTED BY THE MEMBER FOR THE PURPOSE OF RECEIVING TRAVEL ALLOWANCES FOR HIS TRAVEL IN ACCORDANCE WITH PARAGRAPH 4158, PROVIDED THE GOODS ARE TURNED OVER TO A TRANSPORTATION OFFICER OR CARRIER FOR SHIPMENT WITHIN ONE YEAR. PARAGRAPH 8260 (3) PROVIDES THAT A MEMBER WHO IS ENTITLED TO SHIPMENT OF HOUSEHOLD GOODS TO A HOME OF SELECTION WILL BE ENTITLED TO NONTEMPORARY STORAGE OF ALL OR ANY PORTION OF HIS HOUSEHOLD GOODS IN ACCORDANCE WITH PARAGRAPH 8101 FOR A PERIOD NOT TO EXCEED ONE YEAR FROM THE DATE OF TERMINATION OF ACTIVE DUTY.

IN VIEW OF THOSE PROVISIONS IT WAS YOUR RESPONSIBILITY, WITHIN ONE YEAR FROM NOVEMBER 30, 1961, TO PROVIDE THE TRANSPORTATION OFFICER AT MCGUIRE AIR FORCE BASE WITH PROPER SHIPPING INSTRUCTIONS FOR SHIPMENT OF THE GOODS TO YOUR HOME OF SELECTION. SINCE YOUR EFFECTS REMAINED IN STORAGE BEYOND THE ONE-YEAR PERIOD PROVIDED FOR IN THE REGULATIONS AND NO REQUEST FOR SHIPMENT WAS RECEIVED BY THE TRANSPORTATION OFFICER WITHIN THAT PERIOD, THERE IS NO AUTHORITY FOR PAYMENT OF THE ADDITIONAL STORAGE CHARGES NOR MAY YOUR EFFECTS NOW BE SHIPPED AT PUBLIC EXPENSE.

WHILE THE RECORD DOES NOT ESTABLISH THAT GOVERNMENT PERSONNEL WERE NEGLIGENT IN FAILING TO ADVISE YOU OF APPLICABLE REGULATIONS, IT MAY BE POINTED OUT THAT EVEN IF THIS WERE A FACT IT WOULD NOT AFFORD A BASIS FOR THE PAYMENT OF YOUR CLAIM FOR STORAGE OR THE PRESENT SHIPMENT OF YOUR EFFECTS, IT LONG HAVING BEEN ESTABLISHED BY THE COURTS THAT, IN THE ABSENCE OF A STATUTE SO PROVIDING, THE GOVERNMENT IS NOT RESPONSIBLE FOR ACTS OR OMISSIONS OF DUTY ON THE PART OF ITS OFFICERS AND EMPLOYEES. SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515.

IN YOUR LETTER OF JULY 16, 1963, YOU REFERRED TO PARAGRAPH 8303 OF THE JOINT TRAVEL REGULATIONS RELATING TO SHIPMENT OF HOUSEHOLD EFFECTS INCIDENT TO UNUSUAL OR EMERGENCY CIRCUMSTANCES INCLUDING PERSONAL SITUATIONS. THAT PROVISION DID NOT BECOME EFFECTIVE UNTIL NOVEMBER 29, 1962, AND RELATES TO SHIPMENT OF HOUSEHOLD EFFECTS IN SITUATIONS WHERE ORDERS HAVE BEEN ISSUED AUTHORIZING TRANSPORTATION OF DEPENDENTS FROM OUTSIDE THE UNITED STATES UNDER PARAGRAPH 7103. SIMILAR REGULATIONS WERE PREVIOUSLY CONTAINED IN PARAGRAPHS 8300 AND 8301, CHANGE 108. THESE PROVISIONS DO NOT RELATE TO SHIPMENT OF HOUSEHOLD EFFECTS TO HOME OF SELECTION UPON RETIREMENT AND ARE NOT FOR APPLICATION IN YOUR CASE.

CONCERNING YOUR REQUEST FOR INFORMATION AS TO WHAT OTHER OFFICE MAY CONSIDER YOUR CASE, YOU ARE ADVISED THAT WITH RESPECT TO THE PRESENT RECORD THE ACTION OF OUR OFFICE ON YOUR CLAIM AGAINST THE UNITED STATES IS FINAL AND CONCLUSIVE ON ALL EXECUTIVE DEPARTMENTS OF THE GOVERNMENT. THEREFORE, THERE IS NO FURTHER ACTION THAT MAY BE TAKEN ADMINISTRATIVELY ON YOUR CLAIM UNLESS YOUR RECORDS ARE CORRECTED BY THE SECRETARY OF THE AIR FORCE PURSUANT TO ACTION BY THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS. THE COURT OF CLAIMS OF THE UNITED STATES, HOWEVER, HAS INDEPENDENT JURISDICTION TO CONSIDER AND DETERMINE CERTAIN CLAIMS AGAINST THE UNITED STATES IF FILED WITHIN SIX YEARS AFTER THE CLAIM FIRST ACCRUED. 28 U.S.C. 2501.

SINCE FAVORABLE ACTION CANNOT BE TAKEN ON YOUR CLAIM THE PAPERS WHICH ACCOMPANIED YOUR LETTER OF JULY 16, 1963, ARE RETURNED AS REQUESTED.