B-167331, AUG. 6, 1969

B-167331: Aug 6, 1969

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WAS ADVISED THAT RETURN COULD HAVE BEEN EFFECTED AT GOVERNMENT EXPENSE UNDER 37 U.S.C. 406 FOR HARDSHIP CASES MAY NOT HAVE CLAIM CONSIDERED AS MERITORIOUS CLAIM SINCE SUCH CLAIM WOULD CONSTITUTE PREFERENTIAL TREATMENT AND WOULD NOT CONTAIN ELEMENTS OF LEGAL LIABILITY OR EQUITY FOR REPORTING TO CONGRESS. THEREFORE ACTION TO REPORT THE CLAIM TO CONGRESS WILL NOT BE TAKEN. AF 19767923: REFERENCE IS MADE TO YOUR CLAIM FOR REIMBURSEMENT FOR DEPENDENT TRAVEL FROM ROME. YOU WERE REASSIGNED FROM YOUR DUTY STATION. IT APPEARS FROM STATEMENTS YOU MADE IN CONNECTION WITH YOUR CLAIM AND AN ADMINISTRATIVE REPORT FROM YOUR DETACHMENT THAT WHILE YOUR DEPENDENTS WERE RESIDING WITH YOU AT YOUR DUTY STATION OVERSEAS.

B-167331, AUG. 6, 1969

MILITARY - DEPENDENT TRANSPORTATION AIR FORCE MEMBER WHO, AFTER PAYING RETURN TRANSPORTATION OF DEPENDENTS FROM OVERSEAS INCIDENT TO MARITAL PROBLEMS, WAS ADVISED THAT RETURN COULD HAVE BEEN EFFECTED AT GOVERNMENT EXPENSE UNDER 37 U.S.C. 406 FOR HARDSHIP CASES MAY NOT HAVE CLAIM CONSIDERED AS MERITORIOUS CLAIM SINCE SUCH CLAIM WOULD CONSTITUTE PREFERENTIAL TREATMENT AND WOULD NOT CONTAIN ELEMENTS OF LEGAL LIABILITY OR EQUITY FOR REPORTING TO CONGRESS. THEREFORE ACTION TO REPORT THE CLAIM TO CONGRESS WILL NOT BE TAKEN.

TO SERGEANT RAYMOND B. SWENSON, AF 19767923:

REFERENCE IS MADE TO YOUR CLAIM FOR REIMBURSEMENT FOR DEPENDENT TRAVEL FROM ROME, ITALY, TO MYRTLE BEACH, SOUTH CAROLINA, ON JANUARY 31, 1969.

BY PERMANENT CHANGE-OF-STATION ORDERS DATED MARCH 27, 1968, YOU WERE REASSIGNED FROM YOUR DUTY STATION, MYRTLE BEACH AIR FORCE BASE, SOUTH CAROLINA, TO DETACHMENT 605, USAF EUROPEAN POSTAL/COURIER REGION (HEADQUARTERS COMMAND, USAF) APO NEW YORK 09794. THE ORDERS AUTHORIZED CONCURRENT TRAVEL OF YOUR DEPENDENTS (WIFE AND TWO CHILDREN) TO YOUR DUTY STATION.

IT APPEARS FROM STATEMENTS YOU MADE IN CONNECTION WITH YOUR CLAIM AND AN ADMINISTRATIVE REPORT FROM YOUR DETACHMENT THAT WHILE YOUR DEPENDENTS WERE RESIDING WITH YOU AT YOUR DUTY STATION OVERSEAS, YOU WERE EXPERIENCING MARITAL DIFFICULTIES AND THAT IT WAS CONSIDERED NECESSARY FOR YOUR DEPENDENTS TO RETURN TO THE UNITED STATES.

FURTHER, YOU RELATE THAT ON JANUARY 28, 1969, YOU CONSULTED A MILITARY ASSISTANCE ADVISORY GROUP TRANSPORTATION REPRESENTATIVE ON THE MATTER AND HE INFORMED YOU THAT YOUR DEPENDENTS COULD NOT RETURN TO THE UNITED STATES AT GOVERNMENT EXPENSE UNTIL YOU WERE IN RECEIPT OF PERMANENT CHANGE-OF- STATION ORDERS. YOU SAY THAT BASED ON THIS INFORMATION AND IN VIEW OF THE EMERGENCY CONDITION THAT EXISTED, YOU ARRANGED FOR YOUR DEPENDENTS TO RETURN TO THE UNITED STATES ON JANUARY 31, 1969, AT PERSONAL EXPENSE. YOU SUBSEQUENTLY LEARNED THAT UNDER THE APPLICABLE PROVISIONS OF THE JOINT TRAVEL REGULATIONS, YOU COULD HAVE SENT YOUR DEPENDENTS TO THEIR HOME AT GOVERNMENT EXPENSE HAD YOU REQUESTED ORDERS THROUGH CHANNELS. THEREAFTER, YOU SUBMITTED A CLAIM FOR $510.60 AS REIMBURSEMENT FOR THE COST OF YOUR DEPENDENTS' TRAVEL.

PAYMENT OF YOUR CLAIM WAS NOT MADE BY THE AIR FORCE BECAUSE OF LACK OF ORDERS AUTHORIZING YOUR DEPENDENTS' TRAVEL OR AN APPROPRIATE STATEMENT OR APPROVAL BY YOUR COMMANDING OFFICER. (PARAGRAPH M7103-1, JOINT TRAVEL REGULATIONS.).

YOUR CLAIM WAS FORWARDED TO OUR OFFICE BY HEADQUARTERS, AIR FORCE ACCOUNTING AND FINANCE CENTER, U.S. AIR FORCE, DENVER, COLORADO, WITH THE REQUEST THAT WE CONSIDER IT AS A MERITORIOUS CLAIM UNDER THE PROVISIONS OF THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236.

UNDER THE PERTINENT STATUTE, 37 U.S.C. 406, A MEMBER OF A UNIFORMED SERVICE WHO IS ORDERED TO MAKE A CHANGE OF PERMANENT STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS DEPENDENTS, TO REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE IN PLACE OF THAT TRANSPORTATION IN KIND. SUBSECTION (H) PROVIDES THAT IN THE CASE OF A MEMBER SERVING OUTSIDE THE UNITED STATES, 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 HAVE NOT BEEN ISSUED, AUTHORIZE THE MOVEMENT OF THE MEMBER'S DEPENDENTS TO AN APPROPRIATE LOCATION IN THE UNITED STATES OR ITS POSSESSIONS.

THE PROVISIONS OF THE STATUTE, HOWEVER, ARE NOT SELF-EXECUTING BUT REQUIRE THE ISSUANCE OF REGULATIONS BY THE SECRETARIES OF THE SERVICES CONCERNED. IN THIS RESPECT, PARAGRAPH M7103 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER STATIONED OUTSIDE THE UNITED STATES IN CERTAIN SPECIFIED TYPES OF CASES MAY REQUEST, AND HIS COMMANDING OFFICER MAY APPROVE, TRANSPORTATION OF HIS DEPENDENTS TO A DESIGNATED PLACE IN THE UNITED STATES. SUBPARAGRAPH M7103-2 (7) SETS FORTH AS ONE OF THE TYPES OF CASES THERE CONTEMPLATED THOSE WHICH MEET THE FOLLOWING CONDITIONS:

"7. WHEN DETERMINED THAT THE BEST INTERESTS OF THE MEMBER OR HIS DEPENDENTS AND THE GOVERNMENT WILL BE SERVED BY THE RETURN OF ONE OR MORE OF HIS DEPENDENTS FOR COMPELLING PERSONAL REASONS, SUCH AS MARITAL DIFFICULTIES, FINANCIAL DIFFICULTIES, UNFORESEEN FAMILY PROBLEMS, DEATH OR SERIOUS ILLNESS OF CLOSE RELATIVES, OR FOR REASONS OF A HUMANITARIAN OR COMPASSIONATE NATURE, AND IN OTHER SITUATIONS WHICH HAVE AN ADVERSE EFFECT ON THE MEMBER'S PERFORMANCE OF DUTY, SUCH DETERMINATION TO BE IN THE FORM OF A STATEMENT OF THE APPROVING AUTHORITY; * * *"

THE REGULATIONS PROVIDE FURTHER THAT THE APPROVING AUTHORITY WILL DETERMINE THE DESIGNATED PLACE TO WHICH TRANSPORTATION OF DEPENDENTS IS AUTHORIZED AND WILL INSURE THAT A REASONABLE RELATIONSHIP EXISTS BETWEEN THE CONDITIONS AND CIRCUMSTANCES IN EACH CASE AND THE DESTINATION TO WHICH TRANSPORTATION IS AUTHORIZED. IT ALSO PROVIDES, HOWEVER, THAT:

"WHEN DEPENDENTS HAVE PERFORMED TRAVEL WITHOUT ORDERS TO AN APPROPRIATE DESTINATION UNDER CIRCUMSTANCES WHICH WOULD HAVE PERMITTED THEIR TRAVEL TO HAVE BEEN AUTHORIZED UNDER THE PROVISIONS OF THIS PARAGRAPH, NO REIMBURSEMENT FOR SUCH TRAVEL IS AUTHORIZED EVEN THOUGH ORDERS ARE SUBSEQUENTLY ISSUED UNDER THE PROVISIONS OF PARAGRAPH M8303 3.'

PARAGRAPH M8303-3 OF THE REGULATIONS PROVIDES THAT WHEN DEPENDENTS HAVE PERFORMED TRAVEL TO AN APPROPRIATE DESTINATION UNDER CIRCUMSTANCES WHICH WOULD HAVE AUTHORIZED THEIR TRAVEL UNDER PARAGRAPH M7103 HAD ORDERS BEEN ISSUED, TRANSPORTATION OF HOUSEHOLD GOODS MAY BE AUTHORIZED, PROVIDED ORDERS ARE SUBSEQUENTLY ISSUED DIRECTING TRAVEL OF DEPENDENTS UNDER THE CONDITIONS PRESCRIBED IN PARAGRAPH M7103 AND ARE SUPPORTED BY A DETERMINATION AS REQUIRED BY THAT PARAGRAPH.

THE RECORD SHOWS THAT YOUR DEPENDENTS LEFT ROME, ITALY, FOR CONTINENTAL UNITED STATES ON JANUARY 31, 1969, WITHOUT ORDERS BEING ISSUED. IT IS EVIDENT, THEREFORE, THAT PURSUANT TO THE QUOTED PROVISIONS OF PARAGRAPH M7103-2 (7), JOINT TRAVEL REGULATIONS, THERE WAS NO AUTHORITY FOR REIMBURSEMENT OF THE EXPENSES FOR YOUR DEPENDENTS' TRAVEL. IN THESE CIRCUMSTANCES, THERE IS NO LEGAL BASIS FOR THE PAYMENT OF YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL EXPENSES OF YOUR DEPENDENTS FROM ROME, ITALY TO MYRTLE BEACH, SOUTH CAROLINA.

THE MERITORIOUS CLAIMS ACT OF 1928 PROVIDES THAT WHEN A CLAIM IS FILED IN THIS OFFICE THAT MAY NOT LAWFULLY BE 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 THE 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 TO 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.

THE ADMINISTRATIVE RECOMMENDATION THAT WE REPORT YOUR CLAIM TO THE CONGRESS AS A MERITORIOUS CLAIM PRESUMABLY IS BASED ON THE FACT THAT THE OFFICER YOU CONSULTED APPARENTLY GAVE YOU ERRONEOUS INFORMATION WITH RESPECT TO TRANSPORTATION FOR YOUR DEPENDENTS TO THE UNITED STATES.

THERE ARE NUMEROUS CASES WHERE IN THE CONSIDERATION OF CLAIMS BEFORE THIS OFFICE IT HAS APPEARED THAT MEMBERS OF THE UNIFORMED SERVICES AS WELL AS CIVILIAN EMPLOYEES OF THE GOVERNMENT HAVE BEEN GIVEN ERRONEOUS INFORMATION BY GOVERNMENT OFFICERS AND EMPLOYEES. ALSO, IN SUCH CASES IT OFTEN HAS BEEN URGED THAT WHERE THE CLAIMANT HAD BEEN GIVEN ERRONEOUS INFORMATION THAT FACT SHOULD BE REGARDED AS SUFFICIENT JUSTIFICATION FOR THE PAYMENT OF THE CLAIM. ANY ERRONEOUS INFORMATION YOU MAY HAVE RECEIVED, HOWEVER, DOES NOT, IN OUR OPINION, AFFORD A LEGAL BASIS FOR PAYMENT OF YOUR CLAIM, AND SINCE THERE ARE NUMEROUS CASES WHERE MEMBERS AND OTHER INDIVIDUALS HAVE BEEN IMPROPERLY ADVISED BY GOVERNMENT OFFICERS AND AGENTS, WE FIND NO BASIS FOR CONSIDERING YOUR CASE AS CONTAINING ELEMENTS OF EQUITY OF AN UNUSUAL NATURE.

ACCORDINGLY, 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. THEREFORE, NO ACTION WILL BE TAKEN TO REPORT THE CLAIM TO THE CONGRESS FOR CONSIDERATION.