B-171701, MAR 23, 1971

B-171701: Mar 23, 1971

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WHEN CLAIMANT WAS GRANTED EMERGENCY LEAVE FROM SOUTHEAST AS IS DUE TO HIS WIFE'S SICKNESS AND PLACED THE HOUSEHOLD GOODS IN TEMPORARY STORAGE. THIS WAS A PERSONAL EMERGENCY FOR WHICH REIMBURSEMENT IS NOT AUTHORIZED. THERE HAVE BEEN NUMEROUS CASES IN WHICH MEMBERS OF THE UNIFORMED SERVICES HAVE BEEN PUT TO ADDITIONAL EXPENSE BECAUSE OF PERSONAL EMERGENCIES AND NO ACTION WILL BE TAKEN TO REPORT THE CLAIM TO CONGRESS UNDER THE PROVISIONS OF MERITORIOUS CLAIMS ACT. WHICH WAS DISALLOWED BY CLAIMS DIVISION SETTLEMENT OF SEPTEMBER 25. YOU WERE TRANSFERRED FROM THAT BASE TO THE 388TH COMBAT SUPPORT GROUP (PACAF). YOU WERE GRANTED EMERGENCY LEAVE BECAUSE OF THE ILLNESS OF YOUR WIFE AND TRAVELED FROM SOUTHEAST ASIA TO MICHIGAN TO CARE FOR HER.

B-171701, MAR 23, 1971

HOUSEHOLD GOODS - TEMPORARY STORAGE - PERSONAL EMERGENCY DECISION DENYING CLAIM FOR REIMBURSEMENT OF EXPENSES FOR STORAGE OF HOUSEHOLD GOODS IN THE AMOUNT OF $441.80. IN CONNECTION WITH CLAIMANT'S OVERSEAS ASSIGNMENT, THE SHIPMENT OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE TO A DESIGNATED PLACE IN THE U.S. DISCHARGED THE GOVERNMENT'S OBLIGATION. WHEN CLAIMANT WAS GRANTED EMERGENCY LEAVE FROM SOUTHEAST AS IS DUE TO HIS WIFE'S SICKNESS AND PLACED THE HOUSEHOLD GOODS IN TEMPORARY STORAGE, THIS WAS A PERSONAL EMERGENCY FOR WHICH REIMBURSEMENT IS NOT AUTHORIZED. FURTHER, THERE HAVE BEEN NUMEROUS CASES IN WHICH MEMBERS OF THE UNIFORMED SERVICES HAVE BEEN PUT TO ADDITIONAL EXPENSE BECAUSE OF PERSONAL EMERGENCIES AND NO ACTION WILL BE TAKEN TO REPORT THE CLAIM TO CONGRESS UNDER THE PROVISIONS OF MERITORIOUS CLAIMS ACT.

TO STAFF SERGEANT JOSEPH M. SCRUGGS:

YOUR LETTER OF JANUARY 6, 1971, REQUESTS CONSIDERATION OF YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES FOR STORAGE OF HOUSEHOLD GOODS, WHICH WAS DISALLOWED BY CLAIMS DIVISION SETTLEMENT OF SEPTEMBER 25, 1970. YOU REQUEST THAT THE CLAIM BE PLACED BEFORE CONGRESS FOR CONSIDERATION UNDER THE PROVISIONS OF THE MERITORIOUS CLAIMS ACT OF 1928.

BY SPECIAL ORDER NO. A-271, DATED JANUARY 21, 1969, HEADQUARTERS, 4510TH COMBAT SUPPORT GROUP (TAC), LUKE AIR FORCE BASE, ARIZONA 85301, YOU WERE TRANSFERRED FROM THAT BASE TO THE 388TH COMBAT SUPPORT GROUP (PACAF), APO SAN FRANCISCO 96288. IN CONNECTION WITH THIS PERMANENT CHANGE OF STATION, AT GOVERNMENT EXPENSE, YOU RELOCATED YOUR DEPENDENTS AND HOUSEHOLD GOODS TO WATERVLIET, MICHIGAN.

IT APPEARS THAT BY ORDERS DATED JUNE 12, 1969, YOU WERE GRANTED EMERGENCY LEAVE BECAUSE OF THE ILLNESS OF YOUR WIFE AND TRAVELED FROM SOUTHEAST ASIA TO MICHIGAN TO CARE FOR HER. AS YOUR WIFE THEN BECAME A PATIENT AT KALAMAZOO STATE HOSPITAL, MICHIGAN, YOUR CHILDREN WERE SENT TO LIVE WITH A RELATIVE, AND ON JULY 12, 1969, YOU HAD YOUR HOUSEHOLD GOODS STORED AT KALAMAZOO, MICHIGAN, AFTER BEING INFORMED BY THE TRAFFIC MANAGEMENT OFFICE AT SELFRIDGE AIR FORCE BASE, MICHIGAN, THAT SUCH STORAGE WOULD HAVE TO BE AT YOUR OWN EXPENSE AS THERE WAS NO AUTHORITY FOR GOVERNMENT PAYMENT. UPON TERMINATION OF YOUR EMERGENCY LEAVE, YOU RETURNED TO YOUR ASSIGNED UNIT OVERSEAS.

BY SPECIAL ORDER NO. AB-5, DATED JANUARY 2, 1970, YOU RECEIVED A PERMANENT CHANGE OF STATION TO F. E. WARREN AIR FORCE BASE, WYOMING 82003. YOUR WIFE AND CHILDREN JOINED YOU AT YOUR NEW STATION AND YOUR HOUSEHOLD GOODS WERE SHIPPED AT GOVERNMENT EXPENSE FROM KALAMAZOO TO F. E. WARREN AIR FORCE BASE.

THE $441.80 CHARGE FOR HOUSEHOLD GOODS STORAGE FOR THE PERIOD FROM JULY 12, 1969, TO JANUARY 28, 1970, WAS PAID FROM YOUR FUNDS AND LATER YOU MADE CLAIM FOR REIMBURSEMENT OF THIS EXPENSE. YOUR CLAIM WAS CONSIDERED DOUBTFUL AND WAS FORWARDED THROUGH MILITARY CHANNELS TO THIS OFFICE WITH THE RECOMMENDATION THAT PAYMENT BE AUTHORIZED. THE CLAIM, RECEIVED ON JULY 23, 1970, WAS DISALLOWED ON SEPTEMBER 25, 1970.

YOU EXPRESS THE BELIEF THAT SINCE THE STORAGE EXPENSE WAS INCURRED BECAUSE OF YOUR DESIRE TO COMPLETE YOUR ASSIGNMENT IN SOUTHEAST ASIA DESPITE PERSONAL ADVERSITY, THAT YOU SHOULD BE REIMBURSED BY THE GOVERNMENT FOR YOUR EXPENDITURE. IN THE EVENT THAT THERE IS NO EXISTING AUTHORITY FOR PAYMENT OF YOUR CLAIM YOU REQUEST THAT YOUR CLAIM BE PLACED BEFORE CONGRESS FOR CONSIDERATION BASED ON THE EQUITIES INVOLVED.

AS A GENERAL PROPOSITION, TRANSPORTATION OF THE HOUSEHOLD EFFECTS OF A MEMBER OF THE UNIFORMED SERVICES AT GOVERNMENT EXPENSE IS AUTHORIZED ONLY WHEN THAT MEMBER IS ORDERED TO MAKE A CHANGE OF PERMANENT STATION. U.S.C. 406(A). PARAGRAPH M8253-2B OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER TRANSFERRED BY PERMANENT CHANGE-OF STATION ORDERS TO AN OVERSEAS RESTRICTED STATION TO WHICH SHIPMENT OF HOUSEHOLD GOODS IS PROHIBITED MAY SHIP THEM TO A PLACE HE DESIGNATES IN THE UNITED STATES, OR THEY MAY BE PLACED IN STORAGE IN ACCORDANCE WITH PARAGRAPH M8101 OF THE REGULATIONS WHICH PROVIDES FOR NONTEMPORARY STORAGE AS AN ALTERNATIVE TO THE SHIPMENT OF HOUSEHOLD GOODS WHENEVER SUCH STORAGE IS DETERMINED TO BE IN THE BEST INTEREST OF THE GOVERNMENT (PAR. M8101-7).

WHEN A MEMBER IS ORDERED FROM DUTY OVERSEAS TO AN UNRESTRICTED STATION WITHIN THE UNITED STATES, HE IS ENTITLED TO SHIPMENT OF THE GOODS FROM THE DESIGNATED PLACE OR PLACE OF AUTHORIZED STORAGE TO THE CURRENT DUTY STATION (PAR. M8253-2F). PARAGRAPH M8250 OF THE REGULATIONS PROVIDES THAT A MEMBER WHO IS AUTHORIZED TO SHIP HOUSEHOLD GOODS UNDER PERMANENT CHANGE- OF-STATION ORDERS ALSO WILL BE ENTITLED TO TEMPORARY STORAGE IN CONJUNCTION WITH SUCH SHIPMENT, UNLESS SPECIFICALLY PROHIBITED.

THE SHIPMENT OF YOUR HOUSEHOLD GOODS TO WATERVLIET, MICHIGAN, SERVED TO DISCHARGE THE GOVERNMENT'S OBLIGATION TO SHIP THEM TO A DESIGNATED PLACE IN THE UNITED STATES OR TO PUT THEM IN NONTEMPORARY STORAGE IN CONNECTION WITH YOUR ASSIGNMENT OVERSEAS. UPON TRANSFER TO F. E. WARREN AIR FORCE BASE YOU WERE ENTITLED TO TRANSPORTATION OF YOUR HOUSEHOLD EFFECTS TO THAT BASE AT GOVERNMENT EXPENSE, WHICH WAS PROVIDED. STORAGE OF HOUSEHOLD GOODS AT KALAMAZOO MAY NOT BE CONSIDERED TO BE TEMPORARY STORAGE IN CONNECTION WITH OR IN ADVANCE OF A PERMANENT CHANGE OF STATION AS IT OCCURRED BECAUSE OF YOUR WIFE'S ILLNESS AND NOT IN CONNECTION WITH EITHER OF YOUR CHANGES OF PERMANENT STATION.

SECTIONS 406(E) AND 406(H) OF TITLE 37 OF THE U.S.C. PROVIDE THAT WHEN PERMANENT CHANGE-OF-STATION ORDERS HAVE NOT BEEN ISSUED, OR WHEN ORDERS HAVE BEEN ISSUED BUT CANNOT BE USED AS AUTHORITY FOR THE TRANSPORTATION OF DEPENDENTS, BAGGAGE AND HOUSEHOLD EFFECTS, THE SECRETARIES OF THE UNIFORMED SERVICES MAY AUTHORIZE THE MOVEMENT OF DEPENDENTS, BAGGAGE AND HOUSEHOLD EFFECTS UNDER CERTAIN PRESCRIBED CONDITIONS.

WE HAVE HELD THAT THE PROVISIONS OF SECTION 406(E) OF THE CODE ARE FOR APPLICATION ONLY IN UNUSUAL OR EMERGENCY CIRCUMSTANCES OF A GENERAL NATURE INCIDENT TO MILITARY OPERATIONS OR MILITARY NEEDS, THAT REASONS OF A PERSONAL NATURE ARE NOT WITHIN THE INTENT OF THIS PROVISION, AND, ADDITIONALLY, THAT TRANSPORTATION OF HOUSEHOLD EFFECTS INDEPENDENTLY OF THE MOVEMENT OF DEPENDENTS IS NOT AUTHORIZED. SECTION 406(H) OF THE CODE IS FOR APPLICATION IN SITUATIONS INVOLVING PERSONAL EMERGENCIES, BUT IT IS LIMITED TO CIRCUMSTANCES WHERE THE DEPENDENT, BAGGAGE AND HOUSEHOLD EFFECTS ARE LOCATED OVERSEAS.

THESE PROVISIONS OF LAW ARE IMPLEMENTED IN THE JOINT TRAVEL REGULATIONS; PARAGRAPH M8015-1 THEREOF PROVIDES THAT TRANSPORTATION OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE (WHICH INCLUDES TEMPORARY STORAGE) IS NOT AUTHORIZED PRIOR TO ISSUANCE OF ORDERS, EXCEPT IN CASE OF EMERGENCY, EXIGENCY OF THE SERVICE, OR WHEN REQUIRED BY SERVICE NECESSITY, AS DETERMINED BY THE APPROPRIATE AUTHORITY OF THE UNIFORMED SERVICE CONCERNED. IT APPEARS THAT NO ADMINISTRATIVE DETERMINATION CONTEMPLATED BY THIS PARAGRAPH OF THE REGULATIONS HAS BEEN MADE IN YOUR CASE SINCE THE PERSONAL CIRCUMSTANCES WHICH MADE NECESSARY THE STORAGE OF YOUR HOUSEHOLD GOODS LOCATED WITHIN THE UNITED STATES, AFTER THEY HAD BEEN SHIPPED TO A DESIGNATED PLACE, CLEARLY IS NOT WITHIN THE CONTEMPLATION OF EITHER SECTION 406(E) OR SECTION 406(H) OF TITLE 37, UNITED STATES CODE.

WHILE PARAGRAPH 40805, AIR FORCE MANUAL 171-103 ('REIMBURSEMENT CLAIMS FOR PERSONALLY PROCURED TRANSPORTATION") PROVIDES THAT IN EMERGENCIES A MEMBER MAY SHIP HIS HOUSEHOLD GOODS AT PERSONAL EXPENSE AND CLAIM REIMBURSEMENT FOR THE COST OF SHIPMENT, THE PURPOSE OF THIS PROVISION IS TO ALLOW REIMBURSEMENT EVEN THOUGH SHIPMENT WAS NOT ARRANGED THROUGH A SHIPPING OR TRANSPORTATION OFFICER (SEE PARAGRAPH M8500 OF THE JOINT TRAVEL REGULATIONS) IF OTHERWISE PAYABLE, AND OF ITSELF AFFORDS NO BASIC AUTHORITY FOR REIMBURSEMENT.

AS WE ARE NOT AWARE OF ANY PROVISION OF LAW OR REGULATION WHICH PROVIDES LEGAL AUTHORITY FOR REIMBURSEMENT BY THE GOVERNMENT FOR STORAGE OF YOUR HOUSEHOLD GOODS IN THE CIRCUMSTANCES INVOLVED, THE ACTION HERETOFORE TAKEN BY OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM IS SUSTAINED.

THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, CH. 334, 45 STAT. 413, 31 U.S.C. 236, 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 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.

WE DO NOT CONSIDER YOUR CLAIM TO HAVE ELEMENTS OF EQUITY OF AN UNUSUAL NATURE. WHILE WE APPRECIATE THE UNFORTUNATE CIRCUMSTANCES IN WHICH YOU STORED YOUR HOUSEHOLD GOODS, AND YOUR DESIRE TO RETURN TO YOUR OVERSEAS STATION, THERE HAVE BEEN NUMEROUS CASES IN WHICH MEMBERS HAVE BEEN PUT TO ADDITIONAL EXPENSE BECAUSE OF SIMILAR PERSONAL EMERGENCIES.

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.