B-159589, JUL. 25, 1966

B-159589, JUL. 25, 1966

TO MR. JIMMIE HUCKABEE:

FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER REQUESTING RECONSIDERATION OF SETTLEMENT DATED JUNE 6, 1966, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR YOUR DEPENDENTS' TRAVEL (WIFE AND 3 CHILDREN) ON AUGUST 2 AND 3, 1965, FROM AUGUSTA, GEORGIA, TO MIAMI, FLORIDA, PRIOR TO YOUR RELEASE FROM ACTIVE DUTY ON JANUARY 31, 1966, AND PLACEMENT ON THE RETIRED LIST, USAR, EFFECTIVE FEBRUARY 1, 1966, PURSUANT TO ORDERS DATED NOVEMBER 17, 1965, ISSUED BY HEADQUARTERS, DEPARTMENT OF THE ARMY.

YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION IN SETTLEMENT DATED JUNE 6, 1966, FOR THE REASON THAT YOUR DEPENDENTS PERFORMED THE TRAVEL PRIOR TO YOUR ORDERS AND THE VOUCHER WAS NOT SUPPORTED BY A CERTIFICATE OF THE HEADQUARTERS ISSUING THE ORDERS THAT YOU WERE ADVISED PRIOR TO THE ISSUANCE OF THE ORDERS THAT SUCH ORDERS WOULD BE ISSUED (PARAGRAPH M7000- 8, JOINT TRAVEL REGULATIONS).

IN YOUR PRESENT LETTER YOU SAY THAT YOU DID NOT OBTAIN A CERTIFICATE BECAUSE YOU DID NOT KNOW IT WAS REQUIRED, THAT YOU HAND CARRIED YOUR APPLICATION FOR ADVANCE SHIPMENT OF YOUR HOUSEHOLD EFFECTS WHICH WAS APPROVED AND YOU WERE ASSURED THAT YOU WOULD BE ENTITLED TO REIMBURSEMENT FOR YOUR DEPENDENTS' TRAVEL UPON COMPLETION OF YOUR TRAVEL TO HOME OF SELECTION AFTER YOUR RETIREMENT.

THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES AT GOVERNMENT EXPENSE UPON PERMANENT CHANGE OF STATION (INCLUDING CHANGE FROM LAST DUTY STATION TO HOME OF SELECTION UPON RETIREMENT) IS GOVERNED BY THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO 37 U.S.C. 406. PARAGRAPH M8015-1 OF THE REGULATIONS PERMITS TRANSPORTATION OF HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE PRIOR TO ORDERS IN CASES OF EMERGENCY, EXIGENCY OF THE SERVICE, OR WHEN REQUIRED BY SERVICE NECESSITY, AS DETERMINED BY THE APPROPRIATE AUTHORITY OF THE UNIFORMED SERVICE CONCERNED. SHIPMENT OF YOUR HOUSEHOLD EFFECTS PRIOR TO ORDERS APPARENTLY WAS MADE PURSUANT TO A DETERMINATION MADE UNDER THAT PROVISION.

PARAGRAPHS M7000-8 AND M7003-4 OF THE REGULATIONS PROVIDE, HOWEVER, THAT REIMBURSEMENT IS NOT AUTHORIZED FOR ANY TRAVEL OF DEPENDENTS WHEN THE DEPENDENTS DEPART FROM THE OLD STATION PRIOR TO THE ISSUANCE OF ORDERS AND THE VOUCHER IS NOT SUPPORTED BY A CERTIFICATE BY THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE, OF THE HEADQUARTERS ISSUING THE ORDERS THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE OF CHANGE OF STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED. THE PLAIN TERMS OF THE PROVISIONS LIMIT REIMBURSEMENT FOR TRANSPORTATION WHERE DEPENDENTS DEPART THE OLD PERMANENT STATION PRIOR TO THE ISSUANCE OF ORDERS TO THOSE SITUATIONS WHERE THE VOUCHER IS SUPPORTED BY THE PRESCRIBED CERTIFICATE OF THE COMMANDING OFFICER. YOUR CLAIM FOR YOUR DEPENDENTS' TRAVEL WAS NOT SUPPORTED BY SUCH CERTIFICATE AND WE HAVE NO AUTHORITY TO WAIVE OR MAKE EXCEPTIONS TO THE REQUIREMENTS OF THE INDICATED LAW AND REGULATIONS.

CONCERNING YOUR STATEMENT THAT THE REGULATION WHICH PROVIDES THAT A CERTIFICATE WAS NEEDED SHOULD HAVE BEEN BROUGHT TO YOUR ATTENTION, THE RECORD BEFORE US CONTAINS A COPY OF LETTER FROM HEADQUARTERS, U.S. CONTINENTAL ARMY COMMAND, FORT MONROE, VIRGINIA, DATED JUNE 15, 1965, AND SHOWS DISTRIBUTION TO BE MADE TO COMMANDING GENERAL, THIRD U.S. ARMY. PARAGRAPH 2 OF THE LETTER IS AS FOLLOWS:

"2. QUERIES HAVE BEEN RECEIVED IN THIS HEADQUARTERS REGARDING APPLICATION OF PARAGRAPH 7000.8, JOINT TRAVEL REGULATIONS, TO MEMBERS ANTICIPATING RETIREMENT ORDERS. CITED REGULATION REQUIRES VOUCHER TO BE SUPPORTED BY A CERTIFICATE OF THE COMMANDING OFFICER, ISSUING THE ORDERS, THAT THE MEMBER WAS ADVISED PRIOR TO ISSUANCE OF ORDERS THAT SUCH ORDERS WOULD BE ISSUED. CONSEQUENTLY, IN THE CASE OF RETIREMENT, SUCH CERTIFICATES WOULD HAVE TO BE ISSUED BY THE ADJUTANT GENERAL. HE HAS STATED THAT NORMALLY HE COULD NOT PROPERLY ISSUE CERTIFICATES STATING WITH DEFINITENESS THAT ORDERS WOULD BE ISSUED UNTIL ALL PROCESSING HAD BEEN COMPLETED, AT WHICH TIME ORDERS COULD BE ISSUED JUST AS EXPEDITIOUSLY AS CERTIFICATES.'

ALSO A FIRST INDORSEMENT TO THE ABOVE-QUOTED LETTER BY HEADQUARTERS, THIRD U.S. ARMY, FORT MCPHERSON, GEORGIA, WHICH SHOWS DISTRIBUTION WAS MADE TO COMMANDING GENERAL, FORT GORDON, IS AS FOLLOWS:

"1.THE CONTENTS OF BASIC COMMUNICATION SHOULD BE MADE AN ITEM FOR PRESENTATION AT PRERETIREMENT BRIEFINGS.

"2. MEMBERS APPLYING FOR SHIPMENT OF HOUSEHOLD GOODS PRIOR TO ISSUANCE OF RETIREMENT ORDERS UNDER PROVISIONS OF PARAGRAPH 2-2C, AR 55-71, SHOULD BE COUNSELED CONCERNING THE TRAVEL OF DEPENDENTS. TRAVEL BY DEPENDENTS PERFORMED BEFORE THE ISSUANCE OF RETIREMENT ORDERS WILL BE AT THE EXPENSE OF THE MEMBER AND NO REIMBURSEMENT IS AUTHORIZED SINCE THE CERTIFICATE REFERRED TO IN BASIC COMMUNICATION CANNOT BE OBTAINED.

FROM THE FOREGOING IT IS CLEAR THAT MEMBERS STATIONED AT FORT GORDON SHOULD HAVE BEEN PUT ON NOTICE THAT A CERTIFICATE COULD NOT BE FURNISHED AND THAT TRAVEL BY DEPENDENTS PERFORMED BEFORE THE ISSUANCE OF RETIREMENT ORDERS WOULD BE AT THE EXPENSE OF THE MEMBER. THE ABOVE INSTRUCTION CONTEMPLATES THAT MEMBERS ANTICIPATING RETIREMENT WOULD BE COUNSELED CONCERNING THE TRAVEL OF THEIR DEPENDENTS BEFORE THE ISSUANCE OF RETIREMENT ORDERS, BUT EVEN IF IT WERE ESTABLISHED THAT SUCH COUNSELING WAS NOT PROVIDED THE GOVERNMENT CANNOT BE BOUND BY THE NEGLIGENT OR ERRONEOUS ACTIONS OF ITS OFFICERS OR AGENTS IN THE ABSENCE OF STATUTE SO PROVIDING. SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515.

HOWEVER, IT APPEARS FROM THE RECORD BEFORE US THAT YOUR ATTENTION WAS DIRECTED TO THE ABOVE-QUOTED LETTER AND INDORSEMENT THERETO TO THE EFFECT THAT CERTIFICATES WOULD NOT BE FURNISHED IN CONNECTION WITH TRAVEL OF DEPENDENTS BEFORE THE ISSUANCE OF RETIREMENT ORDERS. SUCH STATEMENT WAS INCLUDED IN THE LETTER OF JUNE 29, 1965, WHICH APPROVED YOUR REQUEST FOR ADVANCE SHIPMENT OF HOUSEHOLD EFFECTS AND WHICH YOU USED TO SUPPORT YOUR CLAIM FOR ADVANCE TRAVEL OF YOUR DEPENDENTS.

WITH RESPECT TO YOUR STATEMENT IN YOUR LETTER AS TO FURTHER ACTION YOU MAY TAKE IN THE MATTER, THE ACTION OF OUR OFFICE ON CLAIMS AGAINST THE UNITED STATES IS BY LAW MADE FINAL AND CONCLUSIVE ON ALL EXECUTIVE DEPARTMENTS OF THE GOVERNMENT. ACCORDINGLY, THERE IS NO FURTHER ACTION THAT MAY BE TAKEN ADMINISTRATIVELY ON YOUR CLAIM. HOWEVER, THE COURT OF CLAIMS OF THE UNITED STATES HAS JURISDICTION TO CONSIDER AND DETERMINE CERTAIN CLAIMS AGAINST THE UNITED STATES IF FILED THERE WITHIN 6 YEARS AFTER THE CLAIMS FIRST ACCRUE. 28 U.S.C. 2501.

IN VIEW OF THE FOREGOING THERE IS NO FURTHER ACTION THAT WE MAY TAKE IN THE MATTER. ACCORDINGLY, THE SETTLEMENT OF JUNE 6, 1966, IS CORRECT AND IS SUSTAINED.