B-163823, APR. 29,1968

B-163823: Apr 29, 1968

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DOOLEY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 8. YOUR SON WAS REPORTED MISSING IN ACTION ON OCTOBER 22. YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION IN SETTLEMENT OF MARCH 4. PROVISIONS FOR THE PAYMENT OF PAY AND ALLOWANCES AND FOR TRAVEL AND TRANSPORTATION BENEFITS IN THE CASE OF MEMBERS OF THE UNIFORMED SERVICES IN A MISSING STATUS ARE CONTAINED IN CHAPTER 10 OF TITLE 37 OF THE U.S.C. 37 U.S.C. 551-558. IS. FOR THE PERIOD HE IS IN THAT STATUS. TO WHICH HE WAS ENTITLED AT THE BEGINNING OF THAT PERIOD OR MAY THEREAFTER BECOME ENTITLED. THE TERM "PAY AND ALLOWANCES" IS DEFINED IN SECTION 551 OF TITLE 37 AS MEANING. UNPACKING OF HOUSEHOLD AND PERSONAL EFFECTS) MAY BE PROVIDED FOR THE DEPENDENTS AND HOUSEHOLD AND PERSONAL EFFECTS (WHICH TERM MAY INCLUDE ONE PRIVATELY OWNED MOTOR VEHICLE) OF A MEMBER OF A UNIFORMED SERVICE ON ACTIVE DUTY * * * WHO IS OFFICIALLY REPORTED AS * * * ABSENT FOR A PERIOD OF MORE THAN 29 DAYS IN A MISSING STATUS * * * "/E) IN PLACE OF THE TRANSPORTATION FOR DEPENDENTS AUTHORIZED BY THIS SECTION.

B-163823, APR. 29,1968

TO MR. HENRY E. DOOLEY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 8, 1968, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES INCURRED IN PERSONALLY TRANSPORTING THE MOTOR VEHICLE OF YOUR SON, LIEUTENANT (JG) JAMES E. DOOLEY, USN, FROM SAN FRANCISCO, CALIFORNIA, TO MANCHESTER CENTER, VERMONT, DURING THE PERIOD NOVEMBER 30, 1967, TO DECEMBER 10, 1967.

YOUR SON WAS REPORTED MISSING IN ACTION ON OCTOBER 22, 1967, WHILE ON A COMBAT MISSION OVER NORTH VIETNAM. FOLLOWING RECEIPT OF NOTICE OF HIS MISSING STATUS YOU TRAVELED TO SAN FRANCISCO, CALIFORNIA, AND DROVE HIS AUTOMOBILE TO HIS HOME IN VERMONT FOR SAFEKEEPING PENDING A FINAL DETERMINATION OF HIS STATUS.

YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION IN SETTLEMENT OF MARCH 4, 1968, FOR THE REASON THAT THE LAW AND REGULATIONS DO NOT PROVIDE FOR REIMBURSEMENT OF THE TRANSPORTATION EXPENSES WHICH YOU INCURRED. IN YOUR LETTER OF MARCH 8 YOU STATE YOUR DISAGREEMENT WITH THE ACTION TAKEN ON YOUR CLAIM AND URGE THAT IN THE CIRCUMSTANCES INVOLVED AND IN VIEW OF THE SAVINGS WHICH ACCRUED TO THE GOVERNMENT AS A CONSEQUENCE OF YOUR MOVING THE CAR AT PERSONAL EXPENSE, THE CLAIM SHOULD BE ALLOWED.

PROVISIONS FOR THE PAYMENT OF PAY AND ALLOWANCES AND FOR TRAVEL AND TRANSPORTATION BENEFITS IN THE CASE OF MEMBERS OF THE UNIFORMED SERVICES IN A MISSING STATUS ARE CONTAINED IN CHAPTER 10 OF TITLE 37 OF THE U.S.C. 37 U.S.C. 551-558.

WITH RESPECT TO ITEMS OF PAY AND ALLOWANCES, SECTION 552 OF TITLE 37 PROVIDES THAT A MEMBER IN A MISSING STATUS, IS, FOR THE PERIOD HE IS IN THAT STATUS, ENTITLED TO THE SAME PAY AND ALLOWANCES, AS DEFINED IN CHAPTER 10, TO WHICH HE WAS ENTITLED AT THE BEGINNING OF THAT PERIOD OR MAY THEREAFTER BECOME ENTITLED. THE TERM "PAY AND ALLOWANCES" IS DEFINED IN SECTION 551 OF TITLE 37 AS MEANING, BASIC PAY; SPECIAL PAY; INCENTIVE PAY; BASIC ALLOWANCE FOR QUARTERS; BASIC ALLOWANCE FOR SUBSISTENCE; AND STATION PER DIEM ALLOWANCES FOR NOT MORE THAN 90 DAYS.

AS TO TRAVEL AND TRANSPORTATION BENEFITS OF SUCH MEMBERS, SECTION 554 OF TITLE 37 PROVIDES, IN MATERIAL PART, AS FOLLOWS:

"/B) TRANSPORTATION (INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE, AND UNPACKING OF HOUSEHOLD AND PERSONAL EFFECTS) MAY BE PROVIDED FOR THE DEPENDENTS AND HOUSEHOLD AND PERSONAL EFFECTS (WHICH TERM MAY INCLUDE ONE PRIVATELY OWNED MOTOR VEHICLE) OF A MEMBER OF A UNIFORMED SERVICE ON ACTIVE DUTY * * * WHO IS OFFICIALLY REPORTED AS * * * ABSENT FOR A PERIOD OF MORE THAN 29 DAYS IN A MISSING STATUS * * *

"/E) IN PLACE OF THE TRANSPORTATION FOR DEPENDENTS AUTHORIZED BY THIS SECTION, AND AFTER THE TRAVEL IS COMPLETED, THE SECRETARY CONCERNED MAY AUTHORIZE --

"/1) REIMBURSEMENT FOR THE COMMERCIAL COST OF THE TRANSPORTATION; OR

"/2) A MONETARY ALLOWANCE AT THE PRESCRIBED RATE FOR ALL, OR THAT PART, OF THE TRAVEL FOR WHICH TRANSPORTATION IN KIND IS NOT FURNISHED. * * *"

IT WILL BE NOTED THAT WHILE THE STATUTE PROVIDES THAT DEPENDENTS MAY BE TRANSPORTED AT GOVERNMENT EXPENSE, REIMBURSED FOR THE COST OF COMMERCIAL TRANSPORTATION, OR PAID A MONETARY ALLOWANCE FOR THEIR TRAVEL, IT AUTHORIZES ONLY TRANSPORTATION IN THE CASE OF HOUSEHOLD AND PERSONAL EFFECTS, INCLUDING PRIVATELY OWNED VEHICLES.

SINCE THE STATUTORY AUTHORITY FOR THE MOVEMENT OF YOUR SON'S AUTOMOBILE PROVIDES ONLY FOR TRANSPORTATION OF THE VEHICLE BY THE GOVERNMENT AND DOES NOT INCLUDE ANY PROVISION FOR REIMBURSEMENT OF THE EXPENSES INCURRED BY SURVIVORS IN MOVING A VEHICLE THEMSELVES, THERE IS NO LEGAL AUTHORITY UNDER WHICH WE MAY APPROVE PAYMENT OF YOUR CLAIM.

IT IS REGRETTED THAT YOU MAY HAVE MISUNDERSTOOD THE BASIS FOR DENIAL OF YOUR CLAIM. IN THE SETTLEMENT OF CLAIMS AGAINST THE UNITED STATES, HOWEVER, THIS OFFICE MUST COMPLY WITH THE LAWS ENACTED BY CONGRESS. HENCE, WHILE APPRECIATING YOUR FEELINGS IN THIS MATTER, WE TRUST YOU WILL UNDERSTAND THAT WE MAY NOT LEGALLY ALLOW YOUR CLAIM AND HAVE NO ALTERNATIVE BUT TO SUSTAIN THE SETTLEMENT OF MARCH 4, 1968.

THE ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236, PROVIDES FOR THE SUBMISSION TO THE CONGRESS BY THIS OFFICE OF THOSE CLAIMS AGAINST THE UNITED STATES WHICH MAY NOT BE LAWFULLY ADJUSTED BUT WHICH ARE DETERMINED TO CONTAIN "SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS.' SINCE THE CONGRESS HAS, IN AT LEAST ONE CASE, ENACTED RELIEF LEGISLATION TO AUTHORIZE REIMBURSEMENT IN A CASE SUCH AS YOURS WE ARE REPORTING YOUR CLAIM UNDER THIS ACT TO THE CONGRESS WITH OUR RECOMMENDATION FOR ITS FAVORABLE CONSIDERATION.