B-184492, OCT 2, 1975

B-184492: Oct 2, 1975

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THE CLAIM OF A MEMBER FOR REIMBURSEMENT OF LOSS INCURRED INCIDENT TO THE SALE OF A MOBILE HOME WITH LOT AND IMPROVEMENTS IN ORDER TO COMPLY WITH A REGULATION WHICH REQUIRED HIM TO LIVE NEAR HIS DUTY STATION IS NOT LEGALLY PAYABLE. USAF: THIS ACTION IS IN RESPONSE TO A LETTER FROM SENIOR MASTER SERGEANT FRANCIS E. THE MEMBER WAS AN OVERAGE IN HIS AIR FORCE CAREER FIELD AND VOLUNTEERED TO RETRAIN INTO THE FIRST SERGEANT CAREER FIELD RATHER THAN BE INVOLUNTARILY RETRAINED INTO AVIONICS MAINTENANCE. AT WHICH TIME HE WAS ADVISED BY HIS WING COMMANDER THAT PURSUANT TO MAC REGULATION 30-4 (MAY 30. AS A FIRST SERGEANT WHO HAD 25 OR MORE AIRMEN UNDER HIM WHO WERE RESIDING IN ON -BASE DORMITORIES. HE WAS REQUIRED TO MOVE WITHIN 10 MINUTES TRAVEL TIME TO AND FROM THE BASE.

B-184492, OCT 2, 1975

THE CLAIM OF A MEMBER FOR REIMBURSEMENT OF LOSS INCURRED INCIDENT TO THE SALE OF A MOBILE HOME WITH LOT AND IMPROVEMENTS IN ORDER TO COMPLY WITH A REGULATION WHICH REQUIRED HIM TO LIVE NEAR HIS DUTY STATION IS NOT LEGALLY PAYABLE. FURTHER, THE CLAIM DOES NOT CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO WARRANT SUBMISSION TO CONGRESS AS A MERITORIOUS CLAIM UNDER THE MERITORIOUS CLAIMS ACT OF 1928.

CLAIM UNDER THE MERITORIOUS CLAIMS ACT OF 1928 - SMSGT. FRANCIS E. ROTH, USAF:

THIS ACTION IS IN RESPONSE TO A LETTER FROM SENIOR MASTER SERGEANT FRANCIS E. ROTH, USAF, REGARDING A $9,525 LOSS HE INCURRED INCIDENT TO THE SALE OF HIS MOBILE HOME WITH LOT AND IMPROVEMENTS IN ORDER TO COMPLY WITH DEPARTMENT OF AIR FORCE MAC REGULATION 30-4. SERGEANT ROTH REQUESTS THAT ACTION BE TAKEN TO SUBMIT HIS CLAIM TO CONGRESS UNDER THE PROVISIONS OF THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236.

THE FILE INDICATES THAT FOLLOWING HIS RETURN FROM OVERSEAS IN AUGUST 1972, AND PRIOR TO HIS ARRIVAL AT MCCHORD AIR FORCE BASE, WASHINGTON, THE MEMBER PURCHASED A MOBILE HOME FOR $12,000. UPON ARRIVAL AT MCCHORD AIR FORCE BASE, HE FOUND THAT THE MOBILE HOME TRAILER PARKS IN THE AREA WOULD NOT ACCOMMODATE HIS EXTRA WIDE HOME AND HE PURCHASED A PARCEL OF LAND IN THE TOWN OF ROY, WASHINGTON, FOR $4,000. HE SUBSEQUENTLY ADDED A GARAGE ($2,100), TWO ADDITIONAL ROOMS AND PORCHES ($1,850), AND A METAL STORAGE SHED ($450) FOR A TOTAL EXPENDITURE OF $20,400.

APPARENTLY, THE MEMBER WAS AN OVERAGE IN HIS AIR FORCE CAREER FIELD AND VOLUNTEERED TO RETRAIN INTO THE FIRST SERGEANT CAREER FIELD RATHER THAN BE INVOLUNTARILY RETRAINED INTO AVIONICS MAINTENANCE. IN JANUARY 1974 THE MEMBER COMPLETED HIS CROSS-TRAINING, AT WHICH TIME HE WAS ADVISED BY HIS WING COMMANDER THAT PURSUANT TO MAC REGULATION 30-4 (MAY 30, 1974), AS A FIRST SERGEANT WHO HAD 25 OR MORE AIRMEN UNDER HIM WHO WERE RESIDING IN ON -BASE DORMITORIES, HE WAS REQUIRED TO MOVE WITHIN 10 MINUTES TRAVEL TIME TO AND FROM THE BASE. HE CHOSE TO REMAIN IN THE FIRST SERGEANT CAREER FIELD BUT BECAUSE OF HARDSHIP HE APPARENTLY SOUGHT WAIVER OF THE DISTANCE REQUIREMENT AND WHEN THAT WAS DENIED, REQUESTED A 60-DAY EXTENSION IN ORDER TO MOVE. THE EXTENSION WAS APPROVED SO THAT HE COULD DISPOSE OF HIS RESIDENCE AND PROPERTY SOME 15 MILES AND 20 MINUTES COMMUTING TIME TO AND FROM THE BASE.

SERGEANT ROTH PLACED HIS PROPERTY WITH A REALTY AGENCY BUT WAS UNSUCCESSFUL IN SELLING IT AT THE ASKING PRICE OF $20,000. ATTEMPTS TO RENT THE PROPERTY WERE ALSO UNSUCCESSFUL. AFTER A TWO-MONTH PERIOD, HE SUCCEEDED IN SELLING THE PROPERTY IN QUESTION FOR $10,875 SUFFERING A LOSS OF $9,525.

THE FILE FURTHER REFLECTS THAT UPON SUBMISSION OF THE CLAIM BY THE MEMBER TO THE SETTLEMENT AND ADJUDICATION DIVISION OF THE AIR FORCE ACCOUNTING AND FINANCE CENTER, IT WAS DETERMINED THAT THERE WAS NO LEGAL BASIS FOR THE PAYMENT OF THE ABOVE LOSS. THE MEMBER THEN SUBMITTED HIS CLAIM TO THIS OFFICE.

WE FIND NO AUTHORITY FOR PAYMENT OF SERGEANT ROTH'S CLAIM BASED ON THE RECORD IN THIS CASE. THUS, WE CONCUR IN THE ADMINISTRATIVE DETERMINATION THAT THERE IS NO LEGAL BASIS UPON WHICH PAYMENT OF THIS CLAIM COULD BE PREDICATED.

WITH REGARD TO THE POSSIBLE APPLICATION OF THE MERITORIOUS CLAIMS ACT OF 1928, SUPRA, THAT ACT PROVIDES THAT WHEN A CLAIM AGAINST THE UNITED STATES IS FILED IN THIS OFFICE THAT MAY NOT BE LAWFULLY ADJUSTED BY USE OF AN APPROPRIATION, 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 RECOMMENDATION. 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.

BASED ON THE INFORMATION SUBMITTED, WE DO NOT CONSIDER SERGEANT ROTH'S CLAIM TO HAVE ELEMENTS OF EQUITY OF AN UNUSUAL NATURE WHICH ARE UNLIKELY TO RECUR. WHILE WE APPRECIATE THE UNFORTUNATE CIRCUMSTANCES WHICH GAVE RISE TO THIS CASE, THERE HAVE BEEN A NUMBER OF OTHER CASES IN WHICH MEMBERS HAVE INCURRED LOSSES IN THE SALE OF RESIDENTIAL PROPERTY AS A RESULT OF MILITARY ORDERS.

ACCORDINGLY, WE DO NOT BELIEVE IT WOULD APPROPRIATE FOR THIS OFFICE TO SUBMIT A RECOMMENDATION TO THE CONGRESS FOR RELIEF OF SERGEANT ROTH UNDER THE MERITORIOUS CLAIMS ACT.