B-164438, SEP. 25, 1968

B-164438, SEP. 25, 1968

TO STAFF SERGEANT RICHARD A. WHITTAKER:

FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL OF YOUR DEPENDENTS FROM LAKE WORTH, FLORIDA, TO HAMILTON AIR FORCE BASE, CALIFORNIA, LESS THE AMOUNT PREVIOUSLY PAID FOR THEIR TRAVEL BASED ON THE DISTANCE FROM GREAT FALLS, MONTANA, TO HAMILTON AIR FORCE BASE, CALIFORNIA.

BY SPECIAL ORDER NO. A-1603, DATED OCTOBER 24, 1966, YOU WERE TRANSFERRED FROM MALSTROM AIR FORCE BASE, MONTANA, TO APO SAN FRANCISCO 96337, WITH TEMPORARY DUTY EN ROUTE AT CLARK AIR BASE, PHILIPPINES, FOR THE PURPOSE OF ATTENDING A COURSE OF INSTRUCTION. THE ORDERS REQUIRED YOU TO REPORT FOR THE TEMPORARY DUTY ON NOVEMBER 7, 1966, AND AUTHORIZED SHIPMENT OF HOUSEHOLD GOODS AND TRAVEL OF DEPENDENTS TO A DESIGNATED LOCATION.

ON THE BASIS OF THOSE ORDERS YOU MOVED YOUR DEPENDENTS FROM MALSTROM AIR FORCE BASE, MONTANA, TO GREAT FALLS, MONTANA. YOU CLAIMED AND WERE PAID FOR THE MOVEMENT OF YOUR DEPENDENTS BETWEEN THOSE POINTS AS FOR TRAVEL TO A DESIGNATED LOCATION. SUBSEQUENTLY, ON OR ABOUT DECEMBER 18, 1966, YOUR WIFE AND CHILDREN DEPARTED GREAT FALLS, MONTANA, AND MOVED TO LAKE WORTH, FLORIDA.

BY SPECIAL ORDER NO. A-3277, DATED AUGUST 25, 1967, YOU WERE TRANSFERRED FROM YOUR OVERSEAS STATION TO HAMILTON AIR FORCE BASE, CALIFORNIA. YOUR DEPENDENTS TRAVELED FROM LAKE WORTH TO HAMILTON AIR FORCE BASE DURING THE PERIOD NOVEMBER 18 TO DECEMBER 11, 1967. REIMBURSEMENT FOR THAT TRAVEL WAS LIMITED TO THE DISTANCE BETWEEN GREAT FALLS AND HAMILTON AIR FORCE BASE.

IN SUPPORT OF YOUR PRESENT CLAIM YOU SAY THAT ON OR ABOUT OCTOBER 25, 1966, YOU RECEIVED THE ORDERS REQUIRING YOU TO BE AT CLARK AIR BASE ON NOVEMBER 7, 1966. SINCE THIS WAS SHORT NOTICE FOR A PERMANENT CHANGE OF STATION YOU SAY YOU HAD ONLY TIME ENOUGH TO LOCATE HOUSING FOR YOUR FAMILY IN GREAT FALLS.

YOU SAY THAT SHORTLY AFTER YOUR DEPARTURE YOUR WIFE VISITED THE DISPENSARY AT MALSTROM AIR FORCE BASE CONCERNING AN EMOTIONAL PROBLEM BEING EXPERIENCED BY ONE OF YOUR SONS AND THAT IT WAS SUGGESTED THAT THE SON WOULD BENEFIT FROM A CERTAIN TYPE OF MEDICAL CARE WHICH COULD NOT BE OBTAINED AT THAT BASE OR IN GREAT FALLS BUT WAS AVAILABLE IN CERTAIN OTHER AREAS. ALSO, YOU SAY THAT SINCE ONE OF THE AREAS WAS FLORIDA AND SINCE YOUR WIFE COULD BE NEAR THE FAMILY THERE, SHE MOVED TO LAKE WORTH; THAT SHE AND THE CHILDREN REMAINED THERE UNTIL YOU RETURNED FROM OVERSEAS, AND THAT YOUR SON, PAUL, RECEIVED TREATMENT AT WEST PALM BEACH AND HOMESTEAD AIR FORCE BASE.

SECTION 406 OF TITLE 37, U.S. CODE, PROVIDES THAT A MEMBER 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 LIEU OF TRANSPORTATION, SUBJECT TO SUCH CONDITIONS AND LIMITATIONS, FOR SUCH GRADES, RANKS AND RATINGS AND TO AND FROM SUCH PLACES AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED.

PARAGRAPH M7005-2 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT WHEN A MEMBER IS TRANSFERRED BY PERMANENT CHANGE-OF-STATION ORDERS FROM THE UNITED STATES TO A RESTRICTED AREA, TRANSPORTATION OF HIS DEPENDENTS IS AUTHORIZED TO (1) ANY PLACE IN THE UNITED STATES THE MEMBER MAY DESIGNATE; (2) THE POINT OF DEPARTURE FROM THE UNITED STATES IN CONNECTION WITH TRAVEL TO A PLACE OUTSIDE THE UNITED STATES DESIGNATED BY THE MEMBER; OR (3) PUERTO RICO, ALASKA, HAWAII, OR ANY TERRITORY OR POSSESSION OF THE UNITED STATES IF APPROVED BY THE SECRETARY CONCERNED. PARAGRAPH M7005-4 OF THOSE REGULATIONS PROVIDES THAT WHEN THE MEMBER SUBSEQUENTLY IS TRANSFERRED BY PERMANENT CHANGE OF-STATION ORDERS FROM A RESTRICTED AREA TO AN UNRESTRICTED AREA HE WILL BE ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS FROM THE PLACE WHERE THEY ARE THEN LOCATED OR THE PLACE TO WHICH LAST TRANSPORTED AT GOVERNMENT EXPENSE, WHICHEVER RESULTS IN THE LESSER ENTITLEMENT, TO THE NEW STATION.

SINCE YOU CLAIMED AND WERE PAID FOR TRAVEL OF YOUR DEPENDENTS TO GREAT FALLS, MONTANA, WHEN YOU WERE ORDERED TO A RESTRICTED STATION OVERSEAS AND SINCE THEY WERE LOCATED AT LAKE WORTH, FLORIDA, WHEN YOU WERE ASSIGNED TO HAMILTON AIR FORCE BASE, CALIFORNIA, THE MAXIMUM ENTITLEMENT FOR REIMBURSEMENT WAS FROM GREAT FALLS TO HAMILTON AIR FORCE BASE. SINCE YOU WERE PAID ON THAT BASIS THERE IS NO AUTHORITY FOR ANY ADDITIONAL REIMBURSEMENT FOR TRAVEL OF YOUR DEPENDENTS NOTWITHSTANDING THE CIRCUMSTANCES WHICH CAUSED YOUR WIFE TO MOVE TO LAKE WORTH, FLORIDA.

SINCE THE LAW AND REGULATIONS AFFORD NO BASIS FOR PAYMENT OF YOUR CLAIM, THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, TRANSMITTED YOUR CLAIM TO THIS OFFICE FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236, BUT DID NOT RECOMMEND PAYMENT.

THE MERITORIOUS CLAIMS ACT OF 1928 PROVIDES THAT WHEN A CLAIM IS FILED IN THIS OFFICE THAT MAY NOT BE LAWFULLY ADJUSTED BY USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM, IN OUR JUDGMENT CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF CONGRESS, IT SHALL BE SUBMITTED TO THE CONGRESS WITH OUR RECOMMENDATIONS. THE REMEDY IS AN EXTRAORDINARY ONE AND ITS USE IS LIMITED TO EXTRAORDINARY CIRCUMSTANCES.

THE CASES WE HAVE REPORTED FOR THE CONSIDERATION OF THE CONGRESS GENERALLY HAVE INVOLVED EQUITABLE CIRCUMSTANCES OF AN UNUSUAL NATURE AND WHICH ARE UNLIKELY TO CONSTITUTE A RECURRING PROBLEM SINCE TO REPORT TO THE CONGRESS A PARTICULAR CASE WHEN SIMILAR EQUITIES EXIST OR ARE LIKELY TO ARISE WITH RESPECT TO OTHER CLAIMANTS WOULD CONSTITUTE PREFERENTIAL TREATMENT OVER OTHERS IN SIMILAR CIRCUMSTANCES.

WHILE IT IS UNFORTUNATE THAT THE SHORT NOTICE UNDER THE ORDERS OF OCTOBER 24, 1966, MAY HAVE CAUSED YOU TO DESIGNATE A NEARBY POINT FOR TRAVEL OF DEPENDENTS WHEREAS THE CONDITION OF YOUR SON, PAUL, AND THE LOCATION OF RELATIVES CAUSED YOUR WIFE TO MOVE TO A DIFFERENT CITY THEREAFTER, WE FIND NO BASIS FOR CONSIDERING YOUR CASE AS CONTAINING ELEMENTS OF EQUITY OF AN UNUSUAL NATURE. THERE ARE NUMEROUS CASES WHERE DEPENDENTS MOVE FROM THE DESIGNATED LOCATION WHILE THE MEMBER IS OVERSEAS, WHICH MOVE, DEPENDING ON THE LOCATION OF THE NEW STATION IN THE UNITED STATES, MAY RESULT IN TRAVEL AT THE MEMBER'S EXPENSE FOR A GREATER DISTANCE THAN FROM THE DESIGNATED LOCATION.

SINCE WE ARE OF THE OPINION THAT YOUR CLAIM DOES NOT CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD WARRANT REPORTING IT TO THE CONGRESS UNDER THE MERITORIOUS CLAIMS ACT OF 1928, NO ACTION WILL BE TAKEN TO REPORT THE CLAIM TO THE CONGRESS FOR CONSIDERATION.