B-170320, SEP. 29, 1970

B-170320, SEP. 29, 1970

DEPENDENT TRAVEL EXPENSES - PRIOR TO ORDERS SUSTAINING SETTLEMENT OF APRIL 13, 1970, THAT DISALLOWED A MEMBER'S CLAIM FOR TRAVEL EXPENSES, WHEN INCIDENT TO RETIREMENT, HE RELOCATED HIS FAMILY FROM WASHINGTON, D.C., TO SELECTED RESIDENCE BOCA RATON, FLA., PRIOR TO THE ISSUANCE OF EFFECTIVE RETIREMENT ORDERS. UNIFORMED SERVICES MEMBER, WHO WAS ERRONEOUSLY ADVISED THAT HE COULD RELOCATE HIS FAMILY TO RESIDENCE OF SELECTION, WHILE ON LEAVE AWAITING THE RESULTS OF HIS PHYSICAL EVALUATION PROCEEDINGS, PRIOR TO RETIREMENT, MAY NOT BE ALLOWED THE EXPENSE INCURRED SINCE JTR DOES NOT PROVIDE AUTHORIZATION FOR ANY TRAVEL OF DEPENDENTS PERFORMED PRIOR TO THE RECEIPT OF ORDERS, UNLESS THERE IS A CERTIFICATE INDICATING THAT THE MEMBER WAS ADVISED PRIOR TO ISSUANCE OF CHANGE-OF-STATION THAT SUCH ORDERS WOULD BE ISSUED. IN THE ABSENCE OF SOME STATUTORY PROVISION AUTHORIZING SUCH PAYMENT THE ERRONEOUS ADVISE OR ACTIONS DO NOT AFFORD A BASIS FOR PAYMENT OF CLAIM.

TO LIEUTENANT COLONEL WILLIAM E. SLAVINS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 4, 1970, REQUESTING REVIEW OF THE SETTLEMENT OF APRIL 13, 1970, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR PERSONAL AND DEPENDENT TRAVEL FROM WASHINGTON, D. C., TO BOCA RATON, FLORIDA, INCIDENT TO YOUR RETIREMENT.

BY PARAGRAPH 157, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 172, DATED SEPTEMBER 8, 1969, YOU WERE RELIEVED OF ASSIGNMENT AND DUTY IN WASHINGTON, D. C., ON OCTOBER 31, 1969, AND PLACED ON THE RETIRED LIST NOVEMBER 1, 1969. PRIOR TO THE ISSUANCE OF THOSE ORDERS YOUR DEPENDENTS TRAVELED FROM FALLS CHURCH, VIRGINIA, TO BOCA RATON, FLORIDA, DURING THE PERIOD JUNE 13 TO AUGUST 27, 1969. YOUR CLAIM FOR REIMBURSEMENT SHOWS THAT SUCH TRAVEL WAS FROM LAST STATION TO HOME OF SELECTION. IT WAS SUPPORTED BY A CERTIFICATE DATED NOVEMBER 26, 1969, BY THE ASSISTANT EXECUTIVE, OFFICE OF THE DEPUTY CHIEF OF STAFF FOR PERSONNEL, DEPARTMENT OF THE ARMY, WASHINGTON, D. C., STATING THAT YOU WERE AUTHORIZED 60 DAYS' LEAVE PRIOR TO RETIREMENT IN ORDER TO MOVE YOUR FAMILY TO YOUR HOME OF SELECTION.

YOUR CLAIM WAS DENIED BY THE ARMY FOR THE REASON THAT THE TRAVEL WAS PERFORMED PRIOR TO ORDERS AND THAT THE SAID CERTIFICATE DID NOT MEET THE REQUIREMENTS OF THE JOINT TRAVEL REGULATIONS. IT WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE SAME REASONS, IT BEING POINTED OUT THAT, IN RETIREMENT CASES, A CERTIFICATE THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE OF ORDERS FOR HIS RETIREMENT THAT SUCH ORDERS WOULD BE ISSUED, WOULD HAVE TO COME FROM THE ADJUTANT GENERAL.

IN YOUR PRESENT LETTER YOU SAY THAT ON MAY 2, 1969, YOU UNDERWENT A RETIREMENT PHYSICAL EXAMINATION, REQUESTED CONSIDERATION OF YOUR CASE BY A MEDICAL EVALUATION BOARD, AND THREE DAYS LATER SUBMITTED TO A REQUEST TO BE RETIRED OCTOBER 31, 1969. ON OR ABOUT JUNE 13, 1969, YOU DROVE YOUR WIFE AND SON TO FORT LAUDERDALE, FLORIDA, TO LOCATE A RETIREMENT HOME, AFTER WHICH YOU RETURNED TO WASHINGTON, D. C. YOU SAY FURTHER THAT YOU RETURNED TO FLORIDA ON LEAVE THE LAST TEN DAYS OF JUNE AND THAT WHILE THERE YOU RECEIVED NOTICE BY TELEPHONE THAT YOUR APPLICATION FOR RETIREMENT HAD BEEN APPROVED, BUT THAT YOU HAD NO ORDERS SINCE THEY COULD NOT BE ISSUED UNTIL COMPLETION OF PHYSICAL EVALUATION PROCEEDINGS.

ALSO, YOU SAY THAT ON JULY 16, 1969, KNOWING THAT YOUR PHYSICAL EVALUATION WOULD NOT BE COMPLETED PRIOR TO YOUR DEPARTURE ON RETIREMENT LEAVE ON AUGUST 23, YOU REQUESTED SHIPMENT OF YOUR HOUSEHOLD GOODS AND RELOCATION OF YOUR FAMILY PRIOR TO ISSUANCE OF RETIREMENT ORDERS AND THAT THIS WAS APPROVED BY THE OFFICE OF THE DEPUTY CHIEF OF STAFF FOR PERSONNEL (DCSPER) HEADQUARTERS DEPARTMENT OF THE ARMY, THE OFFICE TO WHICH YOU WERE ASSIGNED. ON THE BASIS THAT BOTH THE OFFICE OF PERSONNEL OPERATIONS AND THE ADJUTANT GENERAL ARE SPECIAL STAFF ACTIVITIES UNDER THE GENERAL STAFF SUPERVISION OF THE DCSPER, YOU APPEAR TO CONTEND THAT THE CERTIFICATE IN YOUR CASE WAS ISSUED BY THE ADJUTANT GENERAL.

YOU STATE THAT A PHYSICAL EVALUATION BOARD WAS CONVENED AT WALTER REED ARMY MEDICAL CENTER ON AUGUST 14, 1969, TO REVIEW YOUR CASE; THAT YOU DEPARTED FOR FLORIDA ON RETIREMENT LEAVE WITH YOUR DAUGHTER ON AUGUST 23, 1969, AND THAT BY LETTER OF SEPTEMBER 8, 1969, YOU WERE ADVISED OF THE FINDINGS OF THE PHYSICAL EVALUATION BOARD AND FURNISHED A COPY OF YOUR RETIREMENT ORDERS OF THE SAME DATE. YOU EXPRESS THE BELIEF THAT IN THOSE CIRCUMSTANCES THE PROVISIONS OF THE JOINT TRAVEL REGULATIONS SHOULD NOT BE APPLIED TO DENY YOUR CLAIM.

THE TRAVEL OF MEMBERS OF THE UNIFORMED SERVICES, AND THEIR DEPENDENTS AT GOVERNMENT EXPENSE UPON A CHANGE OF PERMANENT STATION (INCLUDING FROM LAST STATION TO HOME OF SELECTION UPON RETIREMENT) IS GOVERNED BY THE JOINT TRAVEL REGULATIONS PROMULGATED BY THE SECRETARIES PURSUANT TO SECTIONS 404 AND 406 OF TITLE 37, U.S.C.

WITH RESPECT TO TRAVEL OF MEMBERS, PARAGRAPH M3000-2 OF THE JOINT TRAVEL REGULATIONS SPECIFICALLY PROVIDES THAT REIMBURSEMENT FOR TRAVEL IS NOT AUTHORIZED WHEN TRAVEL IS PERFORMED IN ANTICIPATION OF OR PRIOR TO RECEIPT OF ORDERS.

PARAGRAPHS M7000-8 AND M7003-4 OF THE REGULATIONS PROVIDE THAT REIMBURSEMENT IS NOT AUTHORIZED FOR ANY TRAVEL OF DEPENDENTS PERFORMED PRIOR TO THE RECEIPT OF ORDERS UNLESS THE VOUCHER IS SUPPORTED BY A CERTIFICATE BY THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE, OF THE HEADQUARTERS ISSUING THE ORDERS THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE OF CHANGE-OF-STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED. THE PLAIN TERMS OF THE PROVISIONS LIMIT REIMBURSEMENT FOR TRANSPORTATION WHERE DEPENDENTS DEPART FROM THE OLD PERMANENT STATION PRIOR TO THE ISSUANCE OF ORDERS TO THOSE SITUATIONS WHERE THE VOUCHER IS SUPPORTED BY THE PRESCRIBED CERTIFICATE BY THE COMMANDING OFFICER OR HIS DESIGNATED REPRESENTATIVE.

EXCEPT IN CERTAIN UNUSUAL OR EMERGENCY SITUATIONS OR IN CERTAIN CASES INVOLVING MEMBERS ON DUTY OUTSIDE THE UNITED STATES, MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS UNDER THE PROVISIONS OF 37 U.S.C. 406, ONLY WHEN THEY ARE ORDERED TO MAKE A PERMANENT CHANGE OF STATION, OR HAVE BEEN OFFICIALLY ADVISED THAT SUCH ORDERS WILL BE ISSUED. AS INDICATED ABOVE, THE MOVE FROM LAST STATION TO HOME ON SEPARATION FROM THE SERVICE IS VIEWED AS A PERMANENT CHANGE OF STATION FOR PURPOSES OF 37 U.S.C. 406.

IN OUR VIEW, PARAGRAPH M7000-8 OF THE REGULATIONS, WHICH PROVIDES THAT REIMBURSEMENT FOR DEPENDENTS' TRAVEL PRIOR TO PERMANENT CHANGE-OF STATION ORDERS IS NOT AUTHORIZED UNLESS THE VOUCHER IS SUPPORTED BY A CERTIFICATE BY THE COMMANDING OFFICER OR HIS DESIGNATED REPRESENTATIVE THAT SUCH ORDERS WILL BE ISSUED, CONTEMPLATES A CASE WHERE ALL THE PROVISIONS OF THE ORDERS HAVE BEEN DETERMINED AND ALL THAT REMAINS TO BE DONE ADMINISTRATIVELY IS THE WRITING OF THE ORDERS. A SIMILAR VIEW OF THE APPLICATION OF PARAGRAPH M7000-8 IS TAKEN IN A GENERAL ADVISORY FROM HEADQUARTERS U. S. ARMY CONTINENTAL COMMAND, DATED JUNE 15, 1965, TO THE VARIOUS ARMY COMMANDS. PARAGRAPH 2 OF THAT ADVISORY IS AS FOLLOWS:

"2. QUERIES HAVE BEEN RECEIVED IN THIS HEADQUARTERS REGARDING APPLICATION OF PARAGRAPH 7000.8, JOINT TRAVEL REGULATIONS, TO MEMBERS ANTICIPATING RETIREMENT ORDERS. CITED REGULATION REQUIRES VOUCHER TO BE SUPPORTED BY A CERTIFICATE OF THE COMMANDING OFFICER, ISSUING THE ORDERS, THAT THE MEMBER WAS ADVISED PRIOR TO ISSUANCE OF ORDERS THAT SUCH ORDERS WOULD BE ISSUED. CONSEQUENTLY, IN THE CASE OF RETIREMENT, SUCH CERTIFICATES WOULD HAVE TO BE ISSUED BY THE ADJUTANT GENERAL. HE HAS STATED THAT NORMALLY HE COULD NOT PROPERLY ISSUE CERTIFICATES STATING WITH DEFINITENESS THAT ORDERS WOULD BE ISSUED UNTIL ALL PROCESSING HAD BEEN COMPLETED, AT WHICH TIME ORDERS COULD BE ISSUED JUST AS EXPEDITIOUSLY AS CERTIFICATES."

IN YOUR CASE, THE CERTIFICATE OF NOVEMBER 26, 1969, WAS ISSUED BY THE ASSISTANT EXECUTIVE OFFICER IN THE OFFICE OF THE DEPUTY CHIEF OF STAFF FOR PERSONNEL. ALTHOUGH BOTH THAT OFFICE AND THE ADJUTANT GENERAL'S OFFICE ARE UNDER THE GENERAL STAFF SUPERVISION OF THE DEPUTY CHIEF OF STAFF FOR PERSONNEL, THEY ARE SEPARATE OFFICES. THE ADJUTANT GENERAL DID NOT ISSUE THE CERTIFICATE AND IT IS APPARENT FROM THE FOREGOING THAT HE WILL NOT ISSUE A CERTIFICATE STATING THAT YOU WERE ADVISED PRIOR TO ORDERS FOR YOUR RETIREMENT THAT SUCH ORDERS WOULD BE ISSUED. WE HAVE BEEN INFORMALLY ADVISED THAT THE OFFICER WHO ISSUED THE CERTIFICATE IN YOUR CASE WAS NOT AUTHORIZED TO ACT FOR THE ADJUTANT GENERAL IN ISSUING THE CERTIFICATE.

IT IS REGRETTED THAT YOU WERE ERRONEOUSLY ADVISED THAT YOU COULD SELECT A HOME AND TRAVEL THERETO PRIOR TO THE ISSUANCE OF ORDERS FOR YOUR RETIREMENT. IN CLAIMS AGAINST THE GOVERNMENT, HOWEVER, WHERE THERE IS NO ENTITLEMENT UNDER THE LAW BUT WHERE THE CLAIMANT URGES THAT HIS CLAIM SHOULD BE PAID BECAUSE OF ERRONEOUS ADVICE OR ACTIONS BY GOVERNMENT PERSONNEL, IT LONG HAS BEEN HELD THAT IN THE ABSENCE OF SOME STATUTORY PROVISION AUTHORIZING SUCH PAYMENT THE ERRONEOUS ADVICE OR ACTIONS DO NOT AFFORD A BASIS FOR PAYMENT OF THE CLAIM. SEE 54 AM. JUR., UNITED STATES, 92 AND 94; GERMAN BANK V UNITED STATES, 148 U.S. 573; ROBERTSON V SICHEL, 127 U.S. 507. WE ARE NOT AWARE OF ANY STATUTORY AUTHORITY FOR THE PAYMENT OF YOUR CLAIM FOR SUCH REASONS.

WHILE WE APPRECIATE THE CIRCUMSTANCES THAT MADE IT DESIRABLE FOR YOU TO TRAVEL AND TO MOVE YOUR DEPENDENTS TO BOCA RATON BEFORE YOU RECEIVED RETIREMENT ORDERS, WE ARE WITHOUT AUTHORITY TO WAIVE OR MAKE EXCEPTIONS TO THE REQUIREMENTS OF THE LAW AND REGULATIONS.

SINCE THERE IS NO LEGAL BASIS FOR THE PAYMENT OF YOUR CLAIM, THE SETTLEMENT OF APRIL 13, 1970, IS SUSTAINED.