B-179110, JUN 18, 1974

B-179110: Jun 18, 1974

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WHERE ORDERS WERE RESCINDED BEFORE ANY TRAVEL WAS PERFORMED. IS DENIED IN ABSENCE OF STATUTORY AUTHORITY FOR SUCH REIMBURSEMENT. BUCHOLTZ: REFERENCE IS MADE TO YOUR CLAIM FOR REIMBURSEMENT OF FINANCIAL LOSSES IN THE AMOUNT OF $92.86. WAS RECEIVED FROM HEADQUARTERS UNITED STATES AIR FORCE. THE RECORD SHOWS THAT WHILE YOU WERE STATIONED AT MCCONNELL AIR FORCE BASE. YOU REPORTEDLY FILED THIS CLAIM AFTER BEING INFORMED YOU WERE NOT ENTITLED TO A DISLOCATION ALLOWANCE TO COMPENSATE YOU FOR EXPENSES INCURRED IN PREPARING FOR YOUR PERMANENT CHANGE OF STATION. THE TERMS AND CONDITIONS OF TRAVEL ORDERS ARE SUBJECT TO MODIFICATION OR REVOCATION AT ANY TIME PRIOR TO THE EXECUTION OF THE TRAVEL AS DIRECTED.

B-179110, JUN 18, 1974

MEMBER'S CLAIM FOR MISCELLANEOUS EXPENSES INCURRED PREPARATORY TO PERMANENT STATION CHANGE, WHERE ORDERS WERE RESCINDED BEFORE ANY TRAVEL WAS PERFORMED, IS DENIED IN ABSENCE OF STATUTORY AUTHORITY FOR SUCH REIMBURSEMENT. CLAIM MAY NOT PROPERLY BE REPORTED TO CONGRESS UNDER MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236, AS IT DOES NOT CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF CONGRESS.

TO SSGT. STEPHEN W. BUCHOLTZ:

REFERENCE IS MADE TO YOUR CLAIM FOR REIMBURSEMENT OF FINANCIAL LOSSES IN THE AMOUNT OF $92.86, INCURRED INCIDENT TO CANCELLATION OF PERMANENT CHANGE OF STATION ORDERS IN DECEMBER 1972. YOUR CLAIM, DATED FEBRUARY 20, 1973, WITH SUPPORTING DOCUMENTS, WAS RECEIVED FROM HEADQUARTERS UNITED STATES AIR FORCE, OFFICE OF THE JUDGE ADVOCATE GENERAL, ON APRIL 27, 1973.

THE RECORD SHOWS THAT WHILE YOU WERE STATIONED AT MCCONNELL AIR FORCE BASE, KANSAS, ON NOVEMBER 16, 1972, YOU RECEIVED SPECIAL ORDERS NUMBER A- 1837 ISSUED ON THE SAME DATE, DIRECTING A CHANGE OF YOUR PERMANENT DUTY STATION TO BYRD FIELD, VIRGINIA, WITH A REPORTING DATE NOT LATER THAN DECEMBER 31, 1972.

UPON RECEIPT OF ORDERS YOU BEGAN NORMAL OUT-PROCESSING PROCEDURES. YOU MOVED INTO THE BASE GUEST HOUSE ON NOVEMBER 30, 1972, AFTER ARRANGING FOR THE PICK UP OF YOUR HOUSEHOLD GOODS AND THE SURRENDER OF YOUR APARTMENT TO THE LANDLORD. WHILE ACCOMPLISHING FINAL BASE CLEARANCE ON DECEMBER 1, 1972, YOU RECEIVED OFFICIAL NOTICE THAT YOUR ORDERS HAD BEEN RESCINDED, WHEREUPON YOU IMMEDIATELY TOOK STEPS TO REESTABLISH YOUR QUARTERS AND CHECK BACK ON THE BASE, RETURNING TO THE BASE GUEST HOUSE FOR THE PERIOD DECEMBER 1-4, 1972.

YOUR CLAIM FOR $92.86 INCLUDES THE FOLLOWING: LOSS OF AEROSOLS AND CLEANERS, $5; LOSS OF FOOD, $8; LOSS OF PAINT, $10; RESTAURANT EXPENSES, $40; NEW CHECKS, $2.36; TELEPHONE REINSTALLATION, $15.50; AND BASE GUEST HOUSING, $12. YOU REPORTEDLY FILED THIS CLAIM AFTER BEING INFORMED YOU WERE NOT ENTITLED TO A DISLOCATION ALLOWANCE TO COMPENSATE YOU FOR EXPENSES INCURRED IN PREPARING FOR YOUR PERMANENT CHANGE OF STATION.

THE TERMS AND CONDITIONS OF TRAVEL ORDERS ARE SUBJECT TO MODIFICATION OR REVOCATION AT ANY TIME PRIOR TO THE EXECUTION OF THE TRAVEL AS DIRECTED, AND IT IS WELL SETTLED THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY PROVIDING FOR REIMBURSEMENT, ANY EXPENSES INCURRED BY THE MEMBER BEFORE THE DATE OF NECESSARY COMPLIANCE WITH THE ORDERS MUST BE BORNE BY HIM IF THE ORDERS ARE CANCELLED PRIOR TO THAT DATE. SEE DECISION B-164814, AUGUST 16, 1968, COPY ENCLOSED.

UNDER THE PROVISIONS OF 37 U.S.C. 406A, A MEMBER IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES AND TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS FOR TRAVEL PERFORMED BEFORE THE EFFECTIVE DATE OF ORDERS THAT DIRECT HIM TO MAKE A CHANGE OF STATION AND ARE LATER CANCELLED, REVOKED OR MODIFIED. HOWEVER, EXISTING LAW DOES NOT CONTEMPLATE REIMBURSEMENT TO A SERVICE MEMBER FOR INCIDENTAL EXPENSES INCURRED IN PREPARATION FOR THE DIRECTED TRAVEL WHEN THE ORDERS ARE MODIFIED OR CANCELLED BEFORE THE COMMENCEMENT OF TRAVEL BY THE MEMBER AND HIS DEPENDENTS.

SINCE YOU DID NOT MAKE AN AUTHORIZED MOVE IN CONNECTION WITH YOUR CHANGE OF PERMANENT STATION TO BYRD FIELD, VIRGINIA, IN ACCORD WITH 37 U.S.C. 407 AND CHAPTER 9, VOLUME 1, JOINT TRAVEL REGULATIONS, A DISLOCATION ALLOWANCE IS NOT PROPERLY PAYABLE TO YOU.

IN THE ABSENCE OF STATUTORY AUTHORITY PROVIDING FOR THE REIMBURSEMENT OF VARIOUS EXPENSES TOTALING $92.86, IN THE PRESENT CIRCUMSTANCES, YOUR CLAIM MUST BE DENIED.

SINCE THE LAW AND REGULATIONS AFFORD NO BASIS FOR THE PAYMENT OF YOUR CLAIM, THE OFFICE OF THE JUDGE ADVOCATE GENERAL, HEADQUARTERS UNITED STATES AIR FORCE, FORWARDED YOUR CLAIM TO THIS OFFICE FOR CONSIDERATION UNDER THE PROVISIONS OF THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, CH. 334, 45 STAT. 413, 31 U.S.C. 236, WITH THE RECOMMENDATION THAT IT BE FAVORABLY CONSIDERED.

THE ACT 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 JUDGEMENT, 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 RECOMMENDATIONS. THE REMEDY IS AN EXTRAORDINARY ONE AND ITS USE IS LIMITED TO EXTRAORDINARY CIRCUMSTANCES.

THE CASES WE HAVE REPORTED FOR 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, THERE HAVE BEEN NUMEROUS CASES IN WHICH MEMBERS MADE EXPENDITURES OF FUNDS PREPARATORY TO TRAVEL IN COMPLIANCE WITH PERMANENT CHANGE OF STATION ORDERS THAT WERE CANCELLED PRIOR TO THEIR EFFECTIVE DATE.

SINCE WE DO NOT REGARD YOUR CLAIM AS CONTAINING 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. SEE DECISION B 164814, SUPRA.