B-173429, SEP 17, 1971

B-173429, SEP 17, 1971

MILITARY PERSONNEL - TRAILER ALLOWANCES DECISION DENYING CLAIM FOR A TRAILER ALLOWANCE RESULTING FROM A PERMANENT CHANGE OF STATION FROM COLUMBUS AFB, MISS., TO OFFUTT AFB, NEB. WHILE ENTITLEMENT TO TRAILER ALLOWANCE WAS SUBSEQUENTLY AUTHORIZED FOR MEMBERS IN CLAIMANT'S POSITION, ON THE DATE THAT THE SUBJECT TRAVEL WAS PERFORMED, SUCH ALLOWANCES WERE NOT AUTHORIZED. ACCORDINGLY, NOTWITHSTANDING THE FACT THAT CLAIMANT MAY HAVE BEEN MISINFORMED, NO LEGAL BASIS EXISTS FOR THE PAYMENT OF THE CLAIM.

TO SERGEANT FRANK T. GOTHARD III:

REFERENCE IS MADE TO YOUR CLAIM FOR TRAILER ALLOWANCE RESULTING FROM YOUR CHANGE OF PERMANENT STATION FROM COLUMBUS AIR FORCE BASE, MISSISSIPPI, TO OFFUTT AIR FORCE BASE, NEBRASKA, PURSUANT TO SPECIAL ORDER AC-396, DATED MAY 13, 1970. THE CLAIM WAS TRANSMITTED TO THIS OFFICE BY THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236.

IT IS REPORTED THAT YOU ENLISTED IN THE AIR FORCE ON JUNE 29, 1966, WERE DISCHARGED ON APRIL 23, 1970, AND WERE REENLISTED ON APRIL 24, 1970, FOR FOUR YEARS. ON JUNE 28, 1970, YOU COMPLETED FOUR YEARS' SERVICE AND HELD THE GRADE OF E-4.

THE ORDERS OF MAY 13, 1970, DIRECTING YOU TO REPORT TO YOUR NEW ASSIGNMENT AT OFFUTT AIR FORCE BASE NOT LATER THAN JUNE 30, 1970, AUTHORIZED THREE DAYS' TRAVEL TIME AND A DELAY ENROUTE CHARGEABLE AS LEAVE. THOSE ORDERS WERE AMENDED BY SPECIAL ORDER AC-708 DATED JULY 16, 1970, TO SHOW THAT YOU HAD OVER FOUR YEARS' SERVICE AND THAT TRAILER ALLOWANCE WAS AUTHORIZED.

IT IS ALSO REPORTED THAT PRIOR TO YOUR DEPARTURE FROM COLUMBUS AIR FORCE BASE, PERSONNEL AT THAT BASE TOLD YOU THAT YOU WOULD BE PAID A TRAILER ALLOWANCE INCIDENT TO THE MOVEMENT OF YOUR TRAILER TO OFFUTT AIR FORCE BASE BUT UPON ARRIVAL THERE YOUR CLAIM WAS DENIED BECAUSE YOU WERE NOT ELIGIBLE FOR SUCH TRANSPORTATION.

SECTION 409 OF TITLE 37 OF THE U.S.C. AUTHORIZES THE PAYMENT BY THE GOVERNMENT OF A TRAILER ALLOWANCE TO A MEMBER UNDER CERTAIN CONDITIONS AND UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED. THOSE REGULATIONS ARE FOUND IN VOLUME I OF THE JOINT TRAVEL REGULATIONS OF THE UNIFORMED SERVICES.

PARAGRAPH M10002 OF THE REGULATIONS PROVIDES THAT UNDER SPECIFIED CONDITIONS ANY MEMBER OF THE UNIFORMED SERVICES (WITH SOME EXCEPTIONS NOT MATERIAL HERE) WHO WOULD OTHERWISE BE ENTITLED TO HAVE HIS HOUSEHOLD GOODS TRANSPORTED AT GOVERNMENT EXPENSE UNDER THE REGULATIONS, IS ENTITLED TO A TRAILER ALLOWANCE. PARAGRAPH M8003 ESTABLISHES WEIGHT ALLOWANCES FOR THE SHIPMENT OF MEMBERS' HOUSEHOLD GOODS AT GOVERNMENT EXPENSE. THE FIRST FOOTNOTE TO THAT PARAGRAPH PROVIDES IN PART THAT THE WEIGHT ALLOWANCE OF A MEMBER WILL BE BASED ON THE GRADE OR RATING HELD BY HIM ON THE DATE HIS ORDERS AUTHORIZING SHIPMENT BECOME EFFECTIVE.

THE EFFECTIVE DATE OF YOUR ORDERS ISSUED MAY 13, 1970, WAS REPORTEDLY JUNE 27, 1970, WHICH WAS PRESUMABLY COMPUTED PURSUANT TO PARAGRAPH M3003(B)1 OF THE REGULATIONS BY ADDING YOUR AUTHORIZED TRAVEL TIME AND DELAY ENROUTE TO THE DATE OF YOUR RELIEF (DETACHMENT) FROM YOUR OLD DUTY STATION. ON THAT DATE TRAILER ALLOWANCES WERE NOT AUTHORIZED FOR MEMBERS IN THE GRADE OF E-4 WITH FOUR YEARS OR LESS SERVICE, THE GRADE WHICH YOU HELD ON JUNE 27, 1970.

WHILE ENTITLEMENT TO SHIPMENT OF HOUSEHOLD GOODS OR TRAILER ALLOWANCES WAS SUBSEQUENTLY AUTHORIZED FOR MEMBERS IN THE GRADE OF E-4 WITH MORE THAN TWO YEARS OF SERVICE BUT WITH OBLIGATED ACTIVE SERVICE SUFFICIENT TO INCREASE THE TOTAL CONTINUOUS ACTIVE SERVICE TO BE PERFORMED TO SIX YEARS OR MORE (PARAGRAPH M8003, CHANGE 210, EFFECTIVE JULY 1, 1970), SUCH REGULATIONS WERE NOT RETROACTIVE. ACCORDINGLY, NOTWITHSTANDING THE FACT THAT YOU MAY HAVE BEEN MISINFORMED, NO LEGAL BASIS EXISTS FOR THE PAYMENT TO YOU OF A TRAILER ALLOWANCE IN THE DESCRIBED CIRCUMSTANCES.

REGARDING THE RECOMMENDATION BY THE DEPARTMENT OF THE AIR FORCE THAT WE CONSIDER YOUR CLAIM UNDER THE MERITORIOUS CLAIMS ACT OF 1928, SUPRA, THAT ACT PROVIDES FOR THE SUBMISSION TO THE CONGRESS BY THIS OFFICE OF THOSE CLAIMS AGAINST THE UNITED STATES WHICH MAY NOT BE LAWFULLY ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH ARE DETERMINED TO CONTAIN "SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS." THE REMEDY IS AN EXTRAORDINARY ONE AND ITS USE IS LIMITED TO EXTRAORDINARY CIRCUMSTANCES.

OTHER MEMBERS INELIGIBLE FOR SIMILAR ALLOWANCES INCIDENT TO CHANGE OF PERMANENT STATION HAVE CLAIMED REIMBURSEMENT, BUT SUCH CLAIMS HAVE BEEN CONSISTENTLY DISALLOWED EVEN THOUGH THE MEMBER MAY HAVE BEEN MISINFORMED AS TO HIS ENTITLEMENT. THEREFORE, IT IS OUR OPINION THAT YOUR CLAIM DOES NOT CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO WARRANT OUR REPORTING IT TO THE CONGRESS UNDER THE MERITORIOUS CLAIMS ACT OF 1928.