B-165315, OCT. 11, 1968

B-165315: Oct 11, 1968

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WEBB JR.: REFERENCE IS MADE TO YOUR CLAIM FOR TRAVEL ALLOWANCES FOR YOURSELF AND YOUR DEPENDENTS FROM SMYRNA. YOU WERE RETIRED EFFECTIVE DECEMBER 1. IT APPEARS THAT YOU WERE UNABLE TO MOVE TO SHREVEPORT AT TIME OF RETIREMENT BECAUSE OF FAMILY HEALTH PROBLEMS. PAYMENT OF THE CLAIM FOR TRAVEL ALLOWANCES WAS DENIED BY THE DEPARTMENT OF THE AIR FORCE FOR THE REASON THAT TRAVEL WAS NOT COMPLETED WITHIN ONE YEAR. A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED MAY. NOT LATER THAN ONE YEAR FROM THE DATE HE IS RETIRED. A MEMBER UPON RETIREMENT IS ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS AND HOUSEHOLD EFFECTS TO THE HOME SELECTED BY HIM. PROVIDED THAT TRAVEL IS COMPLETED TO THE SELECTED HOME WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY.

B-165315, OCT. 11, 1968

TO MR. JAMES H. WEBB JR.:

REFERENCE IS MADE TO YOUR CLAIM FOR TRAVEL ALLOWANCES FOR YOURSELF AND YOUR DEPENDENTS FROM SMYRNA, TENNESSEE, TO SHREVEPORT, LOUISIANA, AND FOR REIMBURSEMENT FOR SHIPMENT OF YOUR HOUSEHOLD EFFECTS INCIDENT TO YOUR RETIREMENT AS SENIOR MASTER SERGEANT, UNITED STATES AIR FORCE.

BY ORDERS DATED NOVEMBER 29, 1965, DEPARTMENT OF THE AIR FORCE, YOU WERE RETIRED EFFECTIVE DECEMBER 1, 1965, AT SEWART AIR FORCE BASE, TENNESSEE, AFTER 20 YEARS 9 MONTHS AND 6 DAYS SERVICE. THE ORDERS AUTHORIZED YOU TO PROCEED TO A HOME OF SELECTION. YOU AND YOUR DEPENDENTS COMPLETED THE TRAVEL TO SHREVEPORT, LOUISIANA, YOUR HOME OF SELECTION, ON JUNE 29, 1968. IT APPEARS THAT YOU WERE UNABLE TO MOVE TO SHREVEPORT AT TIME OF RETIREMENT BECAUSE OF FAMILY HEALTH PROBLEMS.

PAYMENT OF THE CLAIM FOR TRAVEL ALLOWANCES WAS DENIED BY THE DEPARTMENT OF THE AIR FORCE FOR THE REASON THAT TRAVEL WAS NOT COMPLETED WITHIN ONE YEAR.

THE PERTINENT STATUTE, 37 U.S.C. 404 (C) PROVIDES THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED MAY, NOT LATER THAN ONE YEAR FROM THE DATE HE IS RETIRED, EXCEPT AS PRESCRIBED IN REGULATIONS BY THE SECRETARIES CONCERNED, SELECT HIS HOME FOR THE PURPOSE OF TRAVEL AND TRANSPORTATION ALLOWANCES PAYABLE UNDER THAT SECTION. SECTION 406 OF THE SAME TITLE SIMILARLY PROVIDES THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER UPON RETIREMENT IS ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS AND HOUSEHOLD EFFECTS TO THE HOME SELECTED BY HIM.

PARAGRAPH M1150-3 (B) OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THAT AUTHORITY OF LAW, SPECIFIES THAT THE TERM "HOME OF SELECTION" AS USED IN THOSE REGULATIONS MEANS THE PLACE SELECTED BY THE MEMBER AS HIS HOME UPON RETIREMENT. AT THE TIME OF YOUR RETIREMENT, PARAGRAPH M4158 OF THE JOINT TRAVEL REGULATIONS PROVIDED THAT A MEMBER UPON RETIREMENT MAY SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCES FROM HIS LAST DUTY STATION TO THE SELECTED HOME, PROVIDED THAT TRAVEL IS COMPLETED TO THE SELECTED HOME WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY. PARAGRAPHS M7010 AND M8260 CONTAINED SIMILAR PROVISIONS AS TO TRAVEL OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD EFFECTS, RESPECTIVELY, TO THE HOME SELECTED BY THE MEMBER ON RETIREMENT.

THE REGULATIONS NOW PROVIDE FOR AN EXTENSION OF THE ONE-YEAR PERIOD IN CERTAIN CASES WHERE THE MEMBER IS HOSPITALIZED OR COMMENCES EDUCATION OR TRAINING FOR CIVILIAN EMPLOYMENT WITHIN SUCH ONE-YEAR PERIOD FOLLOWING RETIREMENT, BUT THESE PROVISIONS APPARENTLY HAVE NO APPLICATION IN YOUR CASE.

SINCE YOU AND YOUR DEPENDENTS DID NOT COMPLETE TRAVEL TO YOUR HOME OF SELECTION WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY AS REQUIRED BY THE REGULATIONS HAVING THE FORCE OF LAW, WE FIND NO BASIS UNDER THE REGULATIONS FOR FAVORABLE CONSIDERATION OF YOUR CLAIM, NOTWITHSTANDING THE CIRCUMSTANCES WHICH DELAYED YOUR MOVE TO SHREVEPORT AFTER YOUR RETIREMENT.

SINCE THE LAW AND REGULATIONS AFFORD NO BASIS FOR THE PAYMENT OF YOUR CLAIM, THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, TRANSMITTED THE CLAIM TO THIS OFFICE FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236.

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 FAMILY PROBLEMS CAUSED YOU TO DELAY YOUR MOVE TO YOUR HOME OF SELECTION AT SHREVEPORT, OTHER MEMBERS WHO HAVE RETIRED FROM THE SERVICES ARE CONFRONTED WITH SIMILAR PROBLEMS AND ARE SUBJECT TO THE SAME REQUIREMENT THAT TRAVEL TO HOME OF SELECTION BE COMPLETED WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY. THEREFORE, WE FIND NO BASIS FOR CONSIDERING YOUR CASE AS CONTAINING ELEMENTS OF EQUITY OF AN UNUSUAL NATURE.

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.