B-165681, DEC. 18, 1968

B-165681, DEC. 18, 1968

TO SMSGT ORLANDO B. RAEL:

REFERENCE IS MADE TO YOUR CLAIM IN THE AMOUNT OF $211.98 AS REIMBURSEMENT FOR TRAVEL PERFORMED IN JUNE 1967 BY YOUR DEPENDENT CHILDREN FROM MCGUIRE AIR FORCE BASE, NEW JERSEY, TO ARROYO HONDO, NEW MEXICO, AND FOR DISLOCATION ALLOWANCE, YOUR CLAIM BEING BASED ON YOUR PERMANENT CHANGE-OF- STATION ORDERS DATED FEBRUARY 7, 1968, TRANSFERRING YOU TO KIRTLAND AIR FORCE BASE, NEW MEXICO.

BY SPECIAL ORDER 134, DATED JUNE 20, 1967, YOU AND TWO OF YOUR CHILDREN WERE PERMITTED TO PROCEED BY GOVERNMENT AIRCRAFT ON OR ABOUT JUNE 20, 1967, FROM YOUR DUTY STATION IN SPAIN TO MCGUIRE AIR FORCE BASE, NEW JERSEY, ON THE FIRST AVAILABLE FLIGHT ON TEMPORARY DUTY FOR EMERGENCY LEAVE TO ACCOMPANY THE REMAINS OF YOUR DECEASED WIFE FOR BURIAL AT ARLINGTON NATIONAL CEMETERY, ARLINGTON, VIRGINIA. THE ORDERS STATED THAT THIRTY DAYS' EMERGENCY LEAVE WAS GRANTED, AND UPON COMPLETION OF LEAVE YOU WERE TO REPORT TO THE NEAREST AERIAL PORT OF EMBARKATION FOR TRANSPORTATION TO YOUR DUTY STATION OVERSEAS. THE ORDERS PROVIDED THAT DEPENDENTS WERE AUTHORIZED RETURN TRANSPORTATION ON SPACE AVAILABLE BASIS BUT "MUST BE PREPARED TO CONTINUE OR RETURN VIA COMMERCIAL FACILITIES AT PERSONAL EXPENSE.' ORDERS DATED JUNE 23, 1967, MADE SIMILAR PROVISIONS FOR TRANSPORTATION OF YOUR YOUNGEST CHILD WHO WAS ACCOMPANIED BY ANOTHER MEMBER AS NONMEDICAL ATTENDANT.

YOU AND YOUR CHILDREN PERFORMED THE TRAVEL TO WASHINGTON, D.C., FOR YOUR WIFE'S FUNERAL, THENCE TO ARROYO HONDO, NEW MEXICO, YOUR LEAVE ADDRESS, AT PERSONAL EXPENSE. YOUR CHILDREN REMAINED THERE WHEN YOU RETURNED TO YOUR DUTY STATION IN SPAIN.

BY ORDERS DATED FEBRUARY 7, 1968, YOU WERE REASSIGNED TO DUTY AT KIRTLAND AIR FORCE BASE, NEW MEXICO, UNDER THE PROVISIONS OF AIR FORCE MANUAL 39-11 PROVIDING FOR HUMANITARIAN TRANSFERS. PAYMENT OF YOUR CLAIM FOR YOUR DEPENDENTS' TRAVEL FROM MCGUIRE AIR FORCE BASE TO ARROYO HONDO, NEW MEXICO, AND FOR DISLOCATION ALLOWANCE WAS NOT MADE BY THE AIR FORCE ACCOUNTING AND FINANCE OFFICER FOR THE REASON THAT YOUR DEPENDENTS TRAVELED MORE THAN SIX MONTHS PRIOR TO THE ISSUANCE OF YOUR PERMANENT CHANGE-OF-STATION ORDERS OF FEBRUARY 7, 1968.

YOUR CLAIM WAS FORWARDED TO OUR OFFICE BY HEADQUARTERS, AIR FORCE ACCOUNTING AND FINANCE CENTER, UNITED STATES AIR FORCE, DENVER, COLORADO, WITH THE REQUEST THAT WE CONSIDER IT AS A MERITORIOUS CLAIM UNDER THE ACT OF APRIL 10, 1928, CH. 334, 45 STAT. 413, 31 U.S.C. 236.

UNDER THE PROVISIONS OF 37 U.S.C. 406 AND 407 AUTHORITY IS PROVIDED, IN ACCORDANCE WITH THE REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, FOR THE TRANSPORATION OF A MEMBER'S DEPENDENTS AND FOR THE PAYMENT OF A DISLOCATION ALLOWANCE INCIDENT TO A DIRECTED PERMANENT CHANGE OF STATION.

PARAGRAPH M7000-8 OF THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO THAT AUTHORITY SPECIFICALLY PROVIDES THAT TRANSPORTATION IS NOT AUTHORIZED WHERE THE DEPENDENTS DEPART THE OLD STATION PRIOR TO RECEIPT OF PERMANENT CHANGE-OF-STATION ORDERS OR PRIOR TO OFFICIAL NOTICE THAT SUCH ORDERS WOULD BE ISSUED. PARAGRAPH M7003-4 PROVIDES FOR PAYMENT OF A TRAVEL ALLOWANCE FOR DEPENDENTS' TRAVEL PRIOR TO THE ISSUANCE OF ORDERS PROVIDED THE VOUCHER IS SUPPORTED BY A CERTIFICATE OF THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE, OF THE HEADQUARTERS ISSUING THE ORDERS THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE OF THE CHANGE-OF-STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED. THIS PROVISION, IN OUR OPINION, HAS REFERENCE TO INSTANCES WHERE ALL PROVISIONS AND REQUIREMENTS OF THE ORDERS TO BE ISSUED HAVE BEEN COMPLETELY AND FINALLY DETERMINED AND ALL THAT REMAINS TO BE DONE IS THE WRITING OF THE ORDERS. B-160968, APRIL 14, 1967, COPY ENCLOSED.

PARAGRAPH M9003-1 OF THE REGULATIONS PROVIDES FURTHER THAT A DISLOCATION ALLOWANCE IS NOT PAYABLE IN THE CIRCUMSTANCES OUTLINED IN PARAGRAPH M7000- 8 WHERE THE DEPENDENTS TRAVELED PRIOR TO THE ISSUANCE OF ORDERS AND THE VOUCHER IS NOT SUPPORTED BY A CERTIFICATION AS TO PRIOR NOTICE TO THE MEMBER. THESE ARE STATUTORY REGULATIONS WHICH HAVE THE FORCE AND EFFECT OF LAW.

THE PURPOSE OF THE STATUTE AUTHORIZING TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IS TO RELIEVE A MEMBER OF THE BURDEN OF PERSONALLY DEFRAYING THE TRAVEL EXPENSES OF HIS DEPENDENTS WHEN SUCH TRAVEL IS MADE NECESSARY BY AN ORDERED CHANGE OF STATION. FOR THAT REASON, THE CITED REGULATIONS AUTHORIZE DEPENDENTS' TRANSPORTATION AND DISLOCATION ALLOWANCE ONLY WHEN THE TRAVEL IS PERFORMED AFTER THE ORDERS HAVE BEEN ISSUED OR BEFORE ISSUANCE WHERE THE MEMBER HAS BEEN SPECIFICALLY ADVISED THAT ORDERS WILL BE ISSUED. 34 COMP. GEN. 241.

THUS, AS A GENERAL PROPOSITION, SECTIONS 406 AND 407 OF TITLE 37 OF THE U.S.C. AND CITED REGULATIONS AUTHORIZE THE TRANSPORTATION OF DEPENDENTS AND THE PAYMENT OF DISLOCATION ALLOWANCE ONLY WHEN THE MEMBER IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION.

SECTION 406 (H) OF TITLE 37 PROVIDES, HOWEVER, THAT IN THE CASE OF A MEMBER WHO IS SERVING AT A STATION OUTSIDE THE UNITED STATES OR IN HAWAII OR ALASKA, IF THE SECRETARY CONCERNED DETERMINES IT TO BE IN THE BEST INTERESTS OF THE MEMBER OR HIS DEPENDENTS AND THE UNITED STATES, HE MAY, WHEN ORDERS DIRECTING A CHANGE OF PERMANENT STATION FOR THE MEMBER CONCERNED HAVE NOT BEEN ISSUED, OR WHEN THEY HAVE BEEN ISSUED BUT CANNOT BE USED AS AUTHORITY FOR THE TRANSPORTATION OF HIS DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS, AUTHORIZE THE MOVEMENT OF THE MEMBER'S DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS AT THAT STATION TO AN APPROPRIATE LOCATION IN THE UNITED STATES OR ITS POSSESSIONS AND PRESCRIBE TRANSPORTATION IN KIND, REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE IN PLACE THEREOF, AS THE CASE MAY BE.

PARAGRAPHS M7103 AND M8303 OF THE JOINT TRAVEL REGULATIONS, IMPLEMENTING SECTION 406 (H) PROVIDE THAT ORDERS MAY BE ISSUED AUTHORIZING THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS PRIOR TO PERMANENT CHANGE-OF-STATION ORDERS FROM OVERSEAS AREAS TO APPROPRIATE LOCATIONS IN THE UNITED STATES OR ITS POSSESSIONS FOR CERTAIN COMPELLING PERSONAL REASONS THERE SPECIFIED.

THE RECORD SHOWS THAT YOU REQUESTED PERMISSION FOR THE IMMEDIATE TRAVEL OF YOUR CHILDREN FROM YOUR DUTY STATION IN SPAIN TO THE UNITED STATES UNDER EMERGENCY CONDITIONS TO ACCOMPANY THE REMAINS OF YOUR WIFE FOR BURIAL AT ARLINGTON NATIONAL CEMETERY. THE ORDERS AUTHORIZING THEIR TRAVEL PROVIDED ONLY FOR TRAVEL OF YOUR CHILDREN FROM SPAIN TO MCGUIRE AIR FORCE BASE AND RETURN BY GOVERNMENT AIRCRAFT ON A SPACE-AVAILABLE BASIS. NO TRAVEL WAS AUTHORIZED UNDER PARAGRAPH M7103 TO A DESIGNATED LOCATION IN THE UNITED STATES, THE ORDERS PROVIDING THAT TRAVEL BEYOND THE PORT OF ENTRY WOULD BE AT NO EXPENSE TO THE GOVERNMENT.

THE FILE CONTAINS A CERTIFICATE DATED APRIL 30, 1968, ISSUED AT YOUR FORMER STATION IN SPAIN STATING THAT YOU WERE ADVISED TO ACCOMPLISH THE TRAVEL OF YOUR DEPENDENTS IN ACCORDANCE WITH PARAGRAPH M7103-4 OF THE REGULATIONS, KNOWING THAT YOU WOULD RECEIVE PERMANENT CHANGE-OF STATION ORDERS SHORTLY. THE ORDERS FOR YOUR DEPENDENTS' TRAVEL, HOWEVER, CONTAINED NO SUCH AUTHORIZATION. ALSO IT WAS NOT UNTIL YOUR RETURN TO YOUR DUTY STATION IN SPAIN THAT YOU REQUESTED REASSIGNMENT TO KIRTLAND AIR FORCE BASE FOR HUMANITARIAN REASONS, AND IT WAS NOT UNTIL FEBRUARY 7, 1968, THAT PERMANENT CHANGE-OF-STATION ORDERS WERE ISSUED. THUS, NO DETERMINATION HAD BEEN MADE TO ISSUE SUCH ORDERS WHEN THE TRAVEL WAS PERFORMED AND THE CERTIFICATE PROVIDES NO BASIS TO ALLOW YOUR CLAIM.

THEREFORE, THE TRANSPORTATION OF YOUR DEPENDENTS MAY NOT BE CONSIDERED AS INCIDENT TO YOUR PERMANENT CHANGE-OF-STATION ORDERS OF FEBRUARY 7, 1968.

SINCE THE ORDERS PROVIDING FOR YOUR DEPENDENTS' TRAVEL LIMITED THEIR TRANSPORTATION TO MCGUIRE AIR FORCE BASE AND SINCE THE REGULATIONS DO NOT AUTHORIZE ADDITIONAL TRANSPORTATION OR PAYMENT OF DISLOCATION ALLOWANCE UNDER SUCH CIRCUMSTANCES THERE IS NO LEGAL BASIS FOR ALLOWING YOUR CLAIM.

WITH REGARD TO THE RECOMMENDATION OF THE AIR FORCE THAT YOUR CLAIM BE CONSIDERED UNDER THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236, THE CASES WE HAVE REPORTED TO 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 WE APPRECIATE THE UNFORTUNATE CIRCUMSTANCES OF YOUR DEPENDENTS' TRAVEL, THERE ARE NUMEROUS CASES WHERE DEPENDENTS DEPART FROM THE MEMBER'S OVERSEAS STATION FOR COMPELLING PERSONAL REASONS WHICH MAY RESULT IN TRAVEL AT THE MEMBER'S EXPENSE FOR A GREATER DISTANCE THAN THAT AUTHORIZED BY THE ORDERS. 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.