B-173564, OCT 1, 1971

B-173564: Oct 1, 1971

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THERE IS NO LEGAL BASIS UPON WHICH PAYMENT OF THE CLAIM MAY BE APPROVED. DOES NOT BELIEVE THAT THIS CLAIM IS APPROPRIATE FOR SUBMISSION TO CONGRESS FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT. HIERS: REFERENCE IS MADE TO YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES INCIDENT TO THE MOVEMENT OF A PRIVATELY OWNED AUTOMOBILE FROM FORT JACKSON. YOU WERE INFORMED BY THE CLAIMS DIVISION. SINCE THE TRANSPORTATION OF THE PRIVATELY OWNED VEHICLE WAS NOT PROCURED THROUGH THE TRANSPORTATION OFFICER. THERE IS NO AUTHORITY FOR THE PAYMENT OF THE PERSONAL EXPENSE INCURRED BY YOU IN THE MOVEMENT OF THE AUTOMOBILE. ARMY FINANCE CENTER AND SUBSEQUENTLY THE CLAIM WAS FORWARDED TO OUR CLAIMS DIVISION WITH THE RECOMMENDATION THAT WE CONSIDER IT UNDER THE MERITORIOUS CLAIMS ACT OF APRIL 10.

B-173564, OCT 1, 1971

MILITARY PERSONNEL - TRANSPORTATION OF PRIVATELY OWNED AUTOMOBILE DECISION DENYING CLAIM OF MASTER SERGEANT HENRY C. HIERS FOR REIMBURSEMENT OF EXPENSES OF $47.53 INCURRED INCIDENT TO THE MOVEMENT OF A PRIVATELY OWNED AUTOMOBILE FROM FORT JACKSON, S.C., TO NEWBURG, MO., UPON THE DEATH OF CLAIMANT'S SON, SECOND LIEUTENANT HENRY C. HIERS, JR., WHILE IN THE MILITARY SERVICE. SINCE THE APPLICABLE STATUTES AND REGULATIONS MAKE NO PROVISION FOR REIMBURSEMENT OF THE EXPENSES INCURRED, THERE IS NO LEGAL BASIS UPON WHICH PAYMENT OF THE CLAIM MAY BE APPROVED. FURTHER, THE COMP. GEN. DOES NOT BELIEVE THAT THIS CLAIM IS APPROPRIATE FOR SUBMISSION TO CONGRESS FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT.

TO MASTER SERGEANT HENRY G. HIERS:

REFERENCE IS MADE TO YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES INCIDENT TO THE MOVEMENT OF A PRIVATELY OWNED AUTOMOBILE FROM FORT JACKSON, SOUTH CAROLINA, TO NEWBURG, MISSOURI, UPON THE DEATH OF YOUR SON, SECOND LIEUTENANT HENRY G. HIERS, JR., WHILE IN THE MILITARY SERVICE.

BY LETTER DATED AUGUST 7, 1970, YOU WERE INFORMED BY THE CLAIMS DIVISION, U.S. ARMY FINANCE CENTER, THAT, SINCE THE TRANSPORTATION OF THE PRIVATELY OWNED VEHICLE WAS NOT PROCURED THROUGH THE TRANSPORTATION OFFICER, THERE IS NO AUTHORITY FOR THE PAYMENT OF THE PERSONAL EXPENSE INCURRED BY YOU IN THE MOVEMENT OF THE AUTOMOBILE.

THE RECORD INDICATES THAT YOU RESUBMITTED THE CLAIM TO THE U.S. ARMY FINANCE CENTER AND SUBSEQUENTLY THE CLAIM WAS FORWARDED TO OUR CLAIMS DIVISION WITH THE RECOMMENDATION THAT WE CONSIDER IT UNDER THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236.

THE RECORD INDICATES THAT YOUR SON DIED ON JUNE 15, 1970, AND ON THAT SAME DAY YOU WERE NOTIFIED OF HIS DEATH, WHILE YOU WERE STATIONED AT FORT BENNING, GEORGIA. UPON NOTIFICATION OF DEATH YOU SAY THAT YOU CALLED YOUR WIFE IN NEWBURG, MISSOURI, AND INFORMED HER OF THE DEATH, WHEREUPON YOU BOTH PROCEEDED TO FORT JACKSON TO ARRANGE FOR THE DISPOSITION OF YOUR SON'S REMAINS AND PERSONAL EFFECTS.

YOU ALSO SAY YOU WERE NOT INFORMED THAT, IF YOU REMOVED ANY OF YOUR SON'S PERSONAL BELONGINGS AND ARRANGED FOR THEIR DISPOSAL, IT WOULD BE AT YOUR OWN EXPENSE.

UNDER THE PROVISIONS OF 37 U.S.C. 554 THE GOVERNMENT COULD HAVE TRANSPORTED YOUR SON'S VEHICLE AT ITS OWN EXPENSE. HOWEVER, WE ARE NOT AWARE OF ANY PROVISION OF LAW WHICH AUTHORIZES REIMBURSEMENT OF EXPENSES INCURRED BY INDIVIDUALS IN MOVING A DECEASED MEMBER'S AUTOMOBILE IN THE CIRCUMSTANCES INVOLVED. UNDER THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO SECTION 406 OF TITLE 37, UNITED STATES CODE, A MEMBER OTHERWISE ELIGIBLE IS ENTITLED TO REIMBURSEMENT FOR THE TRANSPORTATION OF HIS DEPENDENTS AND HOUSEHOLD EFFECTS INCIDENT TO A CHANGE OF PERMANENT STATION, INCLUDING FROM HIS LAST DUTY STATION TO HIS HOME UPON RELEASE FROM ACTIVE DUTY. ALSO, A MEMBER WHO IS AUTHORIZED TO PERFORM SUCH TRAVEL BY PRIVATELY OWNED VEHICLE MAY RECEIVE A MILEAGE ALLOWANCE AT THE RATE OF 6 CENTS A MILE FOR THE OFFICIAL DISTANCE INVOLVED. SUCH ALLOWANCE IS TO COVER THE COST OF TRANSPORTATION AS WELL AS THE COST OF SUBSISTENCE, LODGING AND OTHER INCIDENTAL EXPENSES.

SECTION 406(F) OF TITLE 37 PROVIDES AUTHORIZATION FOR THE TRANSPORTATION OF DEPENDENTS, BAGGAGE AND HOUSEHOLD EFFECTS OF A MEMBER WHO DIES WHILE ENTITLED TO BASIC PAY. HOWEVER, IT MAKES NO PROVISION FOR THE TRANSPORTATION OF A MOTOR VEHICLE BELONGING TO A DECEASED MEMBER. PARAGRAPH 12-12B, ARMY REGULATIONS 55-71, DATED APRIL 28, 1967, IMPLEMENTING THE STATUTORY AUTHORITY CITED, EXCLUDES MOTOR VEHICLES FROM THE TERMS "HOUSEHOLD GOODS" AND "PERSONAL EFFECTS" THAT MAY BE SHIPPED INCIDENT TO A MEMBER'S DEATH PURSUANT TO SECTION 406(F) OF TITLE 37, OTHER THAN THOSE WHICH MAY HAVE BEEN PREVIOUSLY SHIPPED OVERSEAS INCIDENT TO A PERMANENT CHANGE OF STATION.

IT IS REGRETTED THAT YOU WERE NOT FURNISHED THE NECESSARY INFORMATION REGARDING THE STATUTORY AND REGULATORY PROVISIONS PRIOR TO YOUR ACTION IN MOVING YOUR SON'S CAR TO YOUR HOME AT PERSONAL EXPENSE. HOWEVER, SINCE THE STATUTES AND REGULATIONS MAKE NO PROVISION FOR REIMBURSEMENT OF THE EXPENSES INCURRED, THERE IS NO LEGAL BASIS UPON WHICH WE MAY APPROVE THE PAYMENT OF YOUR CLAIM.

THE MERITORIOUS CLAIMS ACT PROVIDES THAT WHEN A CLAIM AGAINST THE UNITED STATES 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 RECOMMENDATION THEREON. THE REMEDY IS AN EXTRAORDINARY ONE AND ITS USE IS LIMITED TO EXTRAORDINARY CIRCUMSTANCES.

IN OUR OPINION WE WOULD NOT BE JUSTIFIED IN RECOMMENDING TO THE CONGRESS THAT IT ENACT SPECIAL STATUTORY PROVISIONS TO AUTHORIZE AND APPROPRIATE FUNDS FOR REIMBURSEMENT OF THE EXPENSES OF $47.53 INCURRED IN THE MOVEMENT OF THE AUTOMOBILE.