B-155434, NOV. 17, 1964

B-155434: Nov 17, 1964

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BARKOW: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 14. WE WILL CONSIDER YOUR LETTER AS IN THE NATURE OF A REQUEST FOR REVIEW OF THE ACTION TAKEN BY OUR CLAIMS DIVISIONS'S SETTLEMENT OF MAY 9. YOU WERE TO BE RELIEVED FROM ASSIGNMENT WITH HEADQUARTERS COMPANY. INFANTRY (6003) AND WERE TO BE HONORABLY DISCHARGED EFFECTIVE MAY 1. YOUR HOME OF RECORD WAS STATED TO BE MAYPORT. SHIPMENT OF HOUSEHOLD GOODS AND DEPENDENTS' TRAVEL WERE AUTHORIZED. YOU WERE ASSIGNED TO HEADQUARTERS COMPANY. THAT NO TRAVEL WAS INVOLVED. YOU WERE ADVISED BY THE POST CAREER COUNSELLOR AT FORT ORD THAT YOU WERE ENTITLED TO REIMBURSEMENT FOR DEPENDENT TRAVEL AND SHIPMENT OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE UPON DISCHARGE AND REENLISTMENT.

B-155434, NOV. 17, 1964

TO SERGEANT LOUIS J. BARKOW:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 14, 1964, TO THE HONORABLE WILLIAM A. BARRETT, HOUSE OF REPRESENTATIVES, REQUESTING HIS ASSISTANCE IN OBTAINING FURTHER CONSIDERATION OF YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL OF YOUR DEPENDENT WIFE, JUNE 2 TO 8, 1960, AND FOR EXPENSES INCURRED IN THE STORAGE OF YOUR HOUSEHOLD EFFECTS FROM JUNE 2 TO SEPTEMBER 8, 1960. INASMUCH AS REPRESENTATIVE BARRETT HAS TRANSMITTED COPIES OF YOUR LETTER AND ENCLOSURES TO OUR OFFICE FOR COMPLIANCE WITH YOUR REQUEST, WE WILL CONSIDER YOUR LETTER AS IN THE NATURE OF A REQUEST FOR REVIEW OF THE ACTION TAKEN BY OUR CLAIMS DIVISIONS'S SETTLEMENT OF MAY 9, 1961, IN DISALLOWING YOUR CLAIM.

BY PARAGRAPH 115, SPECIAL ORDERS NO. 101, HEADQUARTERS, UNITED STATES ARMY TRAINING CENTER, INFANTRY AND FORT ORD, CALIFORNIA, DATED APRIL 28, 1960, YOU WERE TO BE RELIEVED FROM ASSIGNMENT WITH HEADQUARTERS COMPANY, UNITED STATES ARMY TRAINING CENTER, INFANTRY (6003) AND WERE TO BE HONORABLY DISCHARGED EFFECTIVE MAY 1, 1960, TO REENLIST IN THE REGULAR ARMY. YOUR HOME OF RECORD WAS STATED TO BE MAYPORT, PENNSYLVANIA, AND THE ORDERS PROVIDED THAT UNDER THE PROVISIONS OF CHAPTERS 7 AND 8 OF THE JOINT TRAVEL REGULATIONS, SHIPMENT OF HOUSEHOLD GOODS AND DEPENDENTS' TRAVEL WERE AUTHORIZED. PARAGRAPH 116 OF THE ORDERS PROVIDED THAT HAVING ENLISTED AT THAT STATION IN THE REGULAR ARMY EFFECTIVE MAY 2, 1960, AS A MEMBER OF THE HEADQUARTERS AND HEADQUARTERS COMPANY, 41ST SIGNAL BATTALION, YOU WERE ASSIGNED TO HEADQUARTERS COMPANY, UNITED STATES ARMY TRAINING CENTER, INFANTRY (6003), AND THAT NO TRAVEL WAS INVOLVED.

IN PRESENTING YOUR CLAIM FOR TRANSPORTATION ALLOWANCE FOR THE TRAVEL OF YOUR WIFE, JUNE 2 TO 8, 1960, AND REIMBURSEMENT FOR STORAGE EXPENSE OF YOUR HOUSEHOLD EFFECTS FOR THE PERIOD FROM JUNE 2 TO SEPTEMBER 8, 1960, INCIDENT TO THE ORDERS OF APRIL 28, 1960, YOU STATED THAT PRIOR TO THE EXPIRATION OF YOUR TERM OF SERVICE, YOU WERE ADVISED BY THE POST CAREER COUNSELLOR AT FORT ORD THAT YOU WERE ENTITLED TO REIMBURSEMENT FOR DEPENDENT TRAVEL AND SHIPMENT OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE UPON DISCHARGE AND REENLISTMENT, AND THAT IT WAS ON THAT BASIS THAT YOU REENLISTED AT FORT ORD, CALIFORNIA. YOU STATED FURTHER THAT THE VOUCHER FOR REIMBURSEMENT FOR DEPENDENT'S TRAVEL WAS DISALLOWED AND YOU ALSO HAD TO PAY THE NECESSARY CHARGES TO GET YOUR HOUSEHOLD GOODS OUT OF STORAGE. YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT OF MAY 9, 1961, FOR THE REASON THAT THERE IS NO AUTHORITY FOR PAYMENT FOR DEPENDENTS' TRAVEL OR TRANSPORTATION OF HOUSEHOLD EFFECTS INCIDENT TO A DISCHARGE AND REENLISTMENT AT THE SAME STATION. THE DISALLOWANCE STATED FURTHER THAT THE FACT THAT YOU WERE MISINFORMED OF YOUR RIGHTS DID NOT ENTITLE YOU TO REIMBURSEMENT OTHER THAN AS PROVIDED IN APPLICABLE REGULATIONS. YOU POINT OUT IN THIS RESPECT THAT PARAGRAPH 115, SPECIAL ORDERS NO. 101, WHICH PROVIDED FOR YOUR DISCHARGE, GRANTED AUTHORITY FOR DEPENDENT'S TRAVEL AND SHIPMENT OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE. ALSO, YOU CONTEND THAT REGARDLESS OF THE FACT THAT YOU HAD BEEN MISINFORMED OF YOUR RIGHTS, THE GOVERNMENT SHOULD BE FOUND LIABLE IN THE MATTER SINCE THE EXPENSES INCURRED BY YOU WERE A RESULT OF THE ERRORS MADE BY AGENTS OF THE GOVERNMENT.

THE PERTINENT STATUTE, 37 U.S.C. 406, PROVIDES THAT SUBJECT TO SUCH CONDITIONS AND LIMITATIONS, FOR SUCH GRADES, RANKS, AND RATINGS, AND TO AND FROM SUCH PLACES, AS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE WHO IS ORDERED TO MAKE A CHANGE OF PERMANENT STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS DEPENDENTS, TO REIMBURSEMENT THEREFOR, OR TO A MONETARY ALLOWANCE IN PLACE OF SUCH TRANSPORTATION IN KIND, AND, IN CONNECTION WITH A TEMPORARY OR PERMANENT CHANGE OF STATION, TO TRANSPORTATION (INCLUDING STORAGE) OF BAGGAGE AND HOUSEHOLD EFFECTS, OR REIMBURSEMENT THEREFOR. THE PURPOSE OF THOSE STATUTORY PROVISIONS IS TO RELIEVE THE MEMBER OF THE FINANCIAL BURDEN OF MOVING HIS DEPENDENTS AND HOUSEHOLD EFFECTS BETWEEN STATIONS WHEN SUCH MOVE IS MADE NECESSARY BY AN ORDERED CHANGE OF STATION. UNDER ADMINISTRATIVE REGULATIONS ISSUED PURSUANT TO THAT AUTHORITY (PARAGRAPHS 3003-1 AND 8000-6 OF THE JOINT TRAVEL REGULATIONS), AUTHORIZED CHANGES OF STATION FOR SUCH PURPOSES INCLUDE THE CHANGE FROM HOME TO FIRST DUTY STATION AND FROM LAST DUTY STATION TO HOME UPON ENTERING AND LEAVING THE MILITARY SERVICE. IN THOSE MOVES, HOWEVER, AS IN ALL OTHER CHANGES OF STATION FOR SUCH PURPOSES INCLUDE THE CHANGE FROM HOME TO FIRST DUTY STATION AND FROM LAST DUTY STATION TO HOME UPON ENTERING AND LEAVING THE MILITARY SERVICE. IN THOSE MOVES, HOWEVER, AS IN ALL OTHER CHANGES OF STATION, BENEFITS UNDER THE CITED STATUTORY PROVISIONS ARE NECESSARILY LIMITED, EXCEPT IN CERTAIN SPECIFIC CONDITIONS NOT HERE INVOLVED, TO CASES IN WHICH THE MEMBER HIMSELF IS REQUIRED TO MAKE A CHANGE OF PERMANENT STATION. CONSEQUENTLY, WHERE A MEMBER IS DISCHARGED AND REENLISTS FOR SERVICE AT THE SAME STATION UNDERCIRCUMSTANCES WHICH PERMIT HIS SERVICE TO BE REGARDED AS CONTINUOUS, IT HAS BEEN CONSIDERED THAT THE MEMBER HAS NOT BEEN REQUIRED TO MAKE A CHANGE OF PERMANENT STATION AND SO IS NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS UNDER SUCH DISCHARGE AND REENLISTMENT. SEE B-137674, JANUARY 6, 1959, 38 COMP. GEN. 478, COPY ENCLOSED.

SINCE YOU WERE DISCHARGED ON MAY 1, 1960, AT FORT ORD, CALIFORNIA, AND WERE REENLISTED THE FOLLOWING DAY AT THE SAME STATION, IT IS CONSIDERED THAT YOUR SERVICE WAS OF THE CONTINUOUS NATURE DISCUSSED ABOVE, AND AS NO PERMANENT CHANGE OF STATION TRAVEL BY YOU WAS REQUIRED UPON REENLISTMENT, THERE WAS NO AUTHORITY FOR THE TRANSPORTATION OF YOUR DEPENDENTS AND THE SHIPMENT OF YOUR HOUSEHOLD EFFECTS, INCLUDING THE EXPENSE INVOLVED IN THEIR STORAGE, AT GOVERNMENT EXPENSE. WHILE IT IS UNFORTUNATE THAT YOU WERE ERRONEOUSLY ADVISED BY ARMY PERSONNEL THAT YOU WERE ENTITLED TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS TO YOUR HOME OF RECORD UPON DISCHARGE AND REENLISTMENT AT THE SAME STATION, IT IS A WELL SETTLED PRINCIPLE OF LAW THAT THE GOVERNMENT IS NOT BOUND BY THE NEGLIGENCE OR ERRONEOUS ACTS OF ITS OFFICERS OR AGENTS, IN THE ABSENCE OF A STATUTE SO PROVIDING. SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515. ACCORDINGLY, THE SETTLEMENT OF MAY 9, 1961, WAS CORRECT AND IS SUSTAINED.