B-169012, MAR. 18, 1970

B-169012: Mar 18, 1970

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LATER HAD CONTRACT CANCELED BECAUSE PAYMENTS WERE HIGHER THAN EXPECTED AND HAD DEPENDENTS RETURNED TO UNITED STATES AT GOVERNMENT EXPENSE. CONTAINS NO SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD WARRANT REPORTING TO CONGRESS AS MERITORIOUS CLAIM SINCE DEPENDENTS' RETURN WAS NOT DICTATED BY MILITARY NECESSITY AND FAMILY SEPARATION ALLOWANCE IS NOT PAYABLE WHERE DEPENDENTS' RETURN IS FOR COMPELLING PERSONAL REASONS UNDER M7103 OF JOINT TRAVEL REGULATIONS. JONES: REFERENCE IS MADE TO YOUR CLAIM FOR FAMILY SEPARATION ALLOWANCE UNDER THE PROVISIONS OF CLAUSE (1) OF 37 U.S.C. 427 (B) FOR THE PERIOD FROM FEBRUARY 1967 THROUGH MARCH 1968. THE CLAIM WAS FORWARDED TO THIS OFFICE BY THE DEPARTMENT OF THE AIR FORCE.

B-169012, MAR. 18, 1970

FAMILY ALLOWANCES--SEPARATION--DEPENDENT TRANSPORTATION DETERMINATION- PERSONAL, ETC; REASON RETURN CLAIM FOR FAMILY SEPARATION ALLOWANCE BY TRANSFERRED MEMBER WHO AUTHORIZED ARMY CHAPLAIN TO PURCHASE RESIDENCE IN OKINAWA BECAUSE OF LACK OF GOVERNMENT HOUSING, BUT LATER HAD CONTRACT CANCELED BECAUSE PAYMENTS WERE HIGHER THAN EXPECTED AND HAD DEPENDENTS RETURNED TO UNITED STATES AT GOVERNMENT EXPENSE, CONTAINS NO SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD WARRANT REPORTING TO CONGRESS AS MERITORIOUS CLAIM SINCE DEPENDENTS' RETURN WAS NOT DICTATED BY MILITARY NECESSITY AND FAMILY SEPARATION ALLOWANCE IS NOT PAYABLE WHERE DEPENDENTS' RETURN IS FOR COMPELLING PERSONAL REASONS UNDER M7103 OF JOINT TRAVEL REGULATIONS. MOREOVER, NEITHER ERRONEOUS ADVICE NOR INJUDICIOUS ASSISTANCE FROM GOVERNMENT EMPLOYEES OR OFFICERS CONSTITUTES SUFFICIENT JUSTIFICATION FOR PAYMENT OF CLAIM. SEE 43 COMP. GEN. 332 (1963).

TO TECHNICAL SERGEANT JIMMY D. JONES:

REFERENCE IS MADE TO YOUR CLAIM FOR FAMILY SEPARATION ALLOWANCE UNDER THE PROVISIONS OF CLAUSE (1) OF 37 U.S.C. 427 (B) FOR THE PERIOD FROM FEBRUARY 1967 THROUGH MARCH 1968. THE CLAIM WAS FORWARDED TO THIS OFFICE BY THE DEPARTMENT OF THE AIR FORCE, DIRECTORATE OF MILITARY PAY OPERATIONS, AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, FOR CONSIDERATION AS A MERITORIOUS CLAIM UNDER THE PROVISIONS OF THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236.

IT APPEARS THAT ORDERS DATED SEPTEMBER 22, 1966, DIRECTED YOUR TRANSFER FROM THE UNITED STATES TO A PERMANENT DUTY STATION IN OKINAWA. CONCURRENT TRAVEL OF YOUR DEPENDENTS TO THAT STATION WAS NOT AUTHORIZED BY THOSE ORDERS SINCE GOVERNMENT HOUSING FOR THEM WAS NOT AVAILABLE. IN ORDER TO HAVE YOUR DEPENDENTS ACCOMPANY YOU, IT APPEARS THAT YOU AUTHORIZED THE CHAPLAIN AT OKINAWA TO ENTER INTO NEGOTIATIONS FOR THE PURCHASE OF A RESIDENCE.

ACTING UNDER A POWER OF ATTORNEY AND WITH A $1,000 CASH DOWN PAYMENT FROM YOU, HE ENTERED INTO AN AGREEMENT TO PURCHASE A HOUSE FOR YOU IN OKINAWA, AFTER WHICH CONCURRENT TRAVEL ORDERS FOR YOUR DEPENDENTS WERE ISSUED. FURTHER, IT APPEARS THAT AFTER YOU AND YOUR DEPENDENTS ARRIVED IN OKINAWA, YOU WERE UNABLE TO PAY FOR THE HOUSE BECAUSE THE PRICE AND THE MONTHLY PAYMENTS WERE HIGHER THAN YOU UNDERSTOOD THEY WOULD BE UNDER THE AGREEMENT ENTERED INTO BETWEEN THE CHAPLAIN AND THE SELLER AND YOU ACCEPTED RETURN OF THE SUM OF $550 IN FULL SETTLEMENT AND CANCELLATION OF THE CONTRACT. ALSO, IT APPEARS THAT SINCE YOU WERE UNABLE TO OBTAIN ON-BASE OR OFF-BASE QUARTERS FOR YOUR DEPENDENTS AT OKINAWA, YOU REQUESTED GOVERNMENT TRANSPORTATION RETURNING THEM TO THE UNITED STATES. THIS WAS AUTHORIZED BY ORDERS DATED JANUARY 31, 1967, WHICH CITED PARAGRAPH M7103 (2) (7), JOINT TRAVEL REGULATIONS, AS AUTHORITY FOR THE TRAVEL.

IN URGING PAYMENT OF YOUR CLAIM YOU SAY THAT THE REASON YOU WERE DIRECTED TO SEND YOUR FAMILY BACK TO THE UNITED STATES WAS DUE TO THE UNAVAILABILITY OF HOUSING. APPARENTLY YOU BELIEVE THAT SINCE YOU WERE SEPARATED FROM YOUR FAMILY YOU ARE ENTITLED TO THE PAYMENT OF THE FAMILY SEPARATION ALLOWANCE.

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. YOUR DEPENDENTS WERE FURNISHED TRANSPORTATION TO YOUR OVERSEAS STATION UNDER THIS AUTHORITY. SUBSECTION (H) OF SECTION 406 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.

THIS AUTHORITY HAS BEEN IMPLEMENTED BY PARAGRAPHS M7103-1 AND M7103 2, ITEM 7, JOINT TRAVEL REGULATIONS, WHICH PROVIDE THAT THE COMMANDING OFFICER MAY APPROVE THE REQUEST OF A MEMBER WHO IS PERMANENTLY STATIONED OUTSIDE THE UNITED STATES FOR THE TRANSPORTATION OF HIS DEPENDENTS TO A DESIGNATED PLACE IN THE UNITED STATES, INCLUDING ALASKA AND HAWAII, IN PUERTO RICO, OR IN A TERRITORY OR POSSESSION OF THE UNITED STATES, NOTWITHSTANDING THE FACT THAT HIS PERMANENT STATION REMAINS UNCHANGED, 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.

SECTION 427 (B) OF TITLE 37, U.S.C. PROVIDES FOR THE PAYMENT OF A MONTHLY FAMILY SEPARATION ALLOWANCE OF $30 TO CERTAIN MEMBERS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS ON BEHALF OF DEPENDENTS WHERE THE MOVEMENT OF THE DEPENDENTS TO THE MEMBER'S PERMANENT DUTY STATION OR A PLACE NEAR THAT STATION IS NOT AUTHORIZED AT THE EXPENSE OF THE UNITED STATES UNDER SECTION 406 OF TITLE 37 AND THE DEPENDENTS DO NOT RESIDE AT OR NEAR THAT STATION.

THE PURPOSE OF THIS ALLOWANCE IS TO COMPENSATE THE MEMBER FOR THE ADDED HOUSEHOLD EXPENSES INCURRED, AT THE PLACE WHERE HIS DEPENDENTS RESIDE, AS A RESULT OF THE ENFORCED SEPARATION OF THE MEMBER FROM HIS DEPENDENTS FOR A SUBSTANTIAL PERIOD OF TIME.

IN DECISION 43 COMP. GEN. 332 (1963), COPY HEREWITH, ONE OF THE QUESTIONS PRESENTED IN QUESTION 18 WAS WHETHER OTHERWISE PROPER PAYMENTS OF FAMILY SEPARATION ALLOWANCE MAY BE MADE TO A MEMBER WHOSE DEPENDENTS ARE FURNISHED TRANSPORTATION TO HIS OVERSEAS DUTY STATION AND LATER FURNISHED RETURN TRANSPORTATION TO THE UNITED STATES UNDER PROVISIONS OF PARAGRAPH M7103, JOINT TRAVEL REGULATIONS. IN ANSWERING THAT QUESTION WE EXPLAINED THAT PARAGRAPH M7103 RELATES TO PERSONAL SITUATIONS OF THE MEMBER AND HIS DEPENDENTS, SUCH AS SERIOUS INJURY, OR ILLNESS OF DEPENDENTS AFFECTED ADVERSELY BY WEATHER OR CLIMATE; EMOTIONAL CONDITION OF A CONTINUING NATURE ON THE PART OF THE DEPENDENTS; LACK OF ADEQUATE EDUCATIONAL FACILITIES OR HOUSING FOR DEPENDENTS, ETC.

WE SAID THAT IN SUCH SITUATIONS THE MEMBER MAY REQUEST, AND THE COMMANDING OFFICER MAY APPROVE, TRANSPORTATION OF DEPENDENTS AFTER HE HAS ASSURED HIMSELF THAT A REASONABLE RELATIONSHIP EXISTS BETWEEN THE CONDITIONS AND THE CIRCUMSTANCES PROMPTING THE REQUEST FOR TRAVEL IN EACH CASE. WE POINTED OUT THAT THESE SITUATIONS DO NOT RELATE TO MILITARY REQUIREMENTS AND IN CERTAIN INSTANCES THE DEPENDENTS MAY BE RETURNED TO THE SAME OVERSEAS STATION. WE STATED THAT IN SUCH CIRCUMSTANCES, IT IS DOUBTFUL THAT THE MEMBERS ARE TO BE VIEWED GENERALLY AS NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS TO THEIR OVERSEAS STATION WITHIN THE CONTEMPLATION OF THE STATUTE. WE CONCLUDED THAT PAYMENT OF FAMILY SEPARATION ALLOWANCE WOULD NOT BE AUTHORIZED IN SUCH CASES.

WE DO NOT AGREE WITH THE VIEW EXPRESSED BY YOU THAT YOU WERE "DIRECTED" TO RETURN YOUR DEPENDENTS TO THE UNITED STATES. AS FAR AS THE RECORD SHOWS, YOUR DEPENDENTS WERE NOT ORDERED BY THE GOVERNMENT TO LEAVE OKINAWA AND THEIR TRAVEL TO THE UNITED STATES WAS NOT RELATED TO MILITARY REQUIREMENTS. RATHER YOUR DEPENDENTS WERE RETURNED TO THE UNITED STATES AT YOUR REQUEST AND FOR YOUR CONVENIENCE BECAUSE YOU WERE UNABLE TO PROVIDE THEM WITH HOUSING WHICH WAS YOUR RESPONSIBILITY. AND THE ORDERS OF JANUARY 31, 1967, CITE PARAGRAPH M7103 (2) (7) OF THE REGULATIONS AS AUTHORITY FOR THEIR EARLY TRAVEL.

SINCE YOU WERE NOT AT A RESTRICTED STATION TO WHICH TRANSPORTATION OF DEPENDENTS WAS NOT AUTHORIZED OR WHERE THEY COULD NOT RESIDE AT OR NEAR YOUR STATION, THE GOVERNMENT, AFTER FURNISHING THEIR TRANSPORTATION TO YOUR STATION, WAS NOT RESPONSIBLE FOR YOUR FAILURE TO PROVIDE HOUSING FOR THEM, AS YOU HAD EXPECTED TO DO, AND THE SEPARATION RESULTING FROM THEIR RETURNING TO THE UNITED STATES WAS NOT BECAUSE OF ANY MILITARY NEED.

THEREFORE, SINCE IT APPEARS FROM THE RECORD THAT YOUR DEPENDENTS WERE NOT RETURNED TO THE UNITED STATES BECAUSE OF MILITARY NEED OR A MILITARY RESTRICTION ON THEIR REMAINING OVERSEAS, BUT BECAUSE OF COMPELLING PERSONAL REASON, THERE IS NO LEGAL BASIS TO ALLOW YOUR CLAIM FOR FAMILY SEPARATION ALLOWANCE. ACCORDINGLY, PAYMENT OF YOUR CLAIM IS NOT AUTHORIZED.

AS INDICATED ABOVE, THE DEPARTMENT OF THE AIR FORCE RECOGNIZED THERE WAS NO LEGAL BASIS TO AUTHORIZE PAYMENT OF YOUR CLAIM AND FORWARDED THE CLAIM TO THIS OFFICE WITH A RECOMMENDATION THAT IT BE CONSIDERED AS A MERITORIOUS CLAIM UNDER THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236.

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 MADE BECAUSE A HARDSHIP RESULTED FROM THE FACT THAT YOU WERE UNABLE TO OBTAIN HOUSING AT YOUR NEW STATION ON THE BASIS REPRESENTED BY A CHAPLAIN AT OKINAWA NECESSITATING THE RETURN OF 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 SOUGHT ADVICE OR ASSISTANCE FROM GOVERNMENT OFFICERS AND EMPLOYEES. ALSO IT HAS BEEN URGED, WHERE THE CLAIMANT WAS GIVEN ERRONEOUS ADVICE OR WHERE THE ASSISTANCE PROVIDED BY THE OFFICER DID NOT OBTAIN THE DESIRED RESULTS, THAT FACT SHOULD BE REGARDED AS SUFFICIENT JUSTIFICATION FOR THE PAYMENT OF THE CLAIM. IN OUR OPINION THIS CIRCUMSTANCE DOES NOT AFFORD A LEGAL BASIS FOR THE PAYMENT OF YOUR CLAIM AND SINCE THERE ARE NUMEROUS CASES WHERE MEMBERS AND OTHER INDIVIDUALS HAVE RELIED ON GOVERNMENT OFFICERS AND AGENTS TO ACT FOR THEM OR HAVE BEEN IMPROPERLY ADVISED BY THEM, 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.