B-173289, SEP 3, 1971

B-173289, SEP 3, 1971

MILITARY PERSONNEL - ORDERED TRAVEL NOT AUTHORIZED BY LAW DECISION DENYING CLAIM FOR PER DIEM FOR TEMPORARY DUTY TRAVEL FROM LACKLAND AFB, TEXAS, TO BIG RAPIDS, MICH., AND RETURN. BECAUSE SECTION 1482 OF TITLE 10 U.S. CODE, LISTS THE EXPENSES PAYABLE INCIDENT TO THE DEATH OF A MEMBER OF THE UNIFORMED SERVICES INCLUDING ROUND-TRIP TRANSPORTATION AND PRESCRIBED ALLOWANCES FOR "AN ESCORT OF ONE PERSON" TO PLACE OF BURIAL, AND ORDERS WERE ISSUED FOR ONE ESCORT AND PAYMENT OF PER DIEM MADE FOR HER TRAVEL, THE LAW MAKES NO PROVISION FOR A SECOND MEMBER, AND THE ORDERS, ISSUED AT THE REQUEST OF THE GROUP COMMANDER, DIRECTING CLAIMANT TO THE FUNERAL AFFORD NO BASIS FOR PAYMENT. FURTHER, SINCE THERE ARE NUMEROUS CASES OF MEMBERS PERFORMING TRAVEL NOT AUTHORIZED BY LAW, THE COMP. GEN. DOES NOT REGARD THE INSTANT CASE AS CONTAINING SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD WARRANT REPORTING IT TO CONGRESS FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF 1928.

TO SERGEANT BRENDA L. JOHNSON:

WE AGAIN REFER TO YOUR CLAIM FOR PER DIEM FOR TEMPORARY DUTY TRAVEL FROM LACKLAND AIR FORCE BASE, TEXAS, TO BIG RAPIDS, MICHIGAN, AND RETURN DURING THE PERIOD SEPTEMBER 26 TO 29, 1970.

BY ORDERS DATED SEPTEMBER 25, 1970, YOU WERE AUTHORIZED TO PROCEED ON OR ABOUT SEPTEMBER 26, 1970, TO THE HARRY G. ROGERS FUNERAL HOME AT BIG RAPIDS TO ATTEND A FUNERAL AS THE REPRESENTATIVE OF THE GROUP COMMANDER, AFTER WHICH YOU WERE TO RETURN TO YOUR STATION. THE FUNERAL WAS THAT OF AIRMAN FIRST CLASS MARY E. FORD. THE RECORD SHOWS THAT UPON THE DEATH OF AIRMAN FIRST CLASS MARY E. FORD ON SEPTEMBER 24, 1970, HER PARENTS WERE REQUESTED TO SELECT AN ESCORT TO ACCOMPANY HER BODY. THE PARENTS SELECTED AIRMAN SHEILA E. BROOKS AS FIRST CHOICE AND SERGEANT SUSAN J. HOLCOMB AS SECOND CHOICE.

BY ORDERS DATED SEPTEMBER 25, 1970, AIRMAN BROOKS WAS AUTHORIZED TO PROCEED ON OR ABOUT SEPTEMBER 25, 1970, TO THE HARRY G. ROGERS FUNERAL HOME, BIG RAPIDS, MICHIGAN, AS ESCORT TO ACCOMPANY THE REMAINS OF AIRMAN FORD WITH ADDITIONAL TEMPORARY DUTY AUTHORIZED (NOT TO EXCEED 5 DAYS) AT DESTINATION FOR THE PURPOSE OF ATTENDING FUNERAL AND SETTLEMENT OF PERSONAL AFFAIRS OF DECEASED AT THE REQUEST OF NEXT OF KIN, UPON COMPLETION OF WHICH SHE WAS TO RETURN TO LACKLAND AIR FORCE BASE. AFTER THOSE ORDERS HAD BEEN ISSUED TO AIRMAN BROOKS AND SHE HAD BEEN FURNISHED A TRANSPORTATION REQUEST AND BRIEFING, AT THE REQUEST OF THE GROUP COMMANDER, YOU WERE ISSUED ORDERS TO TRAVEL TO THE FUNERAL AS HIS REPRESENTATIVE. YOU WERE FURNISHED A TRANSPORTATION REQUEST TO PROVIDE FOR YOUR TRANSPORTATION AT GOVERNMENT EXPENSE FROM SAN ANTONIO, TEXAS, TO GRAND RAPIDS, MICHIGAN, AND RETURN.

SECTION 1482 OF TITLE 10, U.S.C. LISTS THE EXPENSES PAYABLE INCIDENT TO THE DEATH OF A MEMBER OF THE UNIFORMED SERVICES INCLUDING ROUND-TRIP TRANSPORTATION AND PRESCRIBED ALLOWANCES FOR "AN ESCORT OF ONE PERSON" TO PLACE OF BURIAL. THUS, THE GOVERNING STATUTE AUTHORIZES ONLY ONE ESCORT AT PUBLIC EXPENSE.

PARAGRAPH M6100 OF THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO 37 U.S.C. 404 PROVIDES THAT APPROPRIATE REGULATIONS RELATIVE TO TRANSPORTATION OF DECEASED MEMBERS WILL BE ISSUED BY THE SERVICES CONCERNED. PARAGRAPH 11-1A, AIR FORCE MANUAL 143-1 GOVERNING MORTUARY AFFAIRS, PROVIDES THAT ONE ESCORT IS AUTHORIZED TO ACCOMPANY THE REMAINS OF A DECEASED MILITARY MEMBER. PARAGRAPH 11-7 OF THAT MANUAL PROVIDES THAT THE PERSON SELECTED FOR ESCORT DUTY WILL BE BRIEFED REGARDING RESPONSIBILITIES AND DUTIES.

SINCE ORDERS WERE ISSUED FOR ONE ESCORT AND PAYMENT OF PER DIEM MADE FOR HER TRAVEL, AND THE LAW MAKES NO PROVISION FOR A SECOND MEMBER TO TRAVEL TO THE FUNERAL AT PUBLIC EXPENSE, THE ORDERS IN YOUR CASE AFFORD NO BASIS FOR PAYMENT OF PER DIEM. THEREFORE, THE AIR FORCE DID NOT PAY YOUR CLAIM AND WE FIND NO LEGAL BASIS FOR ITS ALLOWANCE. ACCORDINGLY, YOUR CLAIM IS DISALLOWED. HOWEVER, THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, IN FORWARDING YOUR CLAIM HERE, RECOMMENDED THAT WE CONSIDER IT UNDER THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236.

THE MERITORIOUS CLAIMS ACT OF 1928 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 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.

SINCE THERE ARE NUMEROUS CASES IN WHICH MEMBERS PERFORM TRAVEL NOT AUTHORIZED BY LAW, WE DO NOT REGARD YOUR CASE AS CONTAINING SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD WARRANT REPORTING IT TO THE CONGRESS FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF 1928.