B-158147, MAR. 29, 1966

B-158147, MAR. 29, 1966

TO MR. RAYMOND W. VOSS:

YOUR LETTER OF FEBRUARY 21, 1966, MAKES FURTHER REFERENCE TO YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL OF YOUR DEPENDENTS FROM ELMENDORF AIR FORCE BASE, ALASKA, TO MCCHORD AIR FORCE BASE, WASHINGTON, AND FROM THE LATTER PLACE TO ANCHORAGE, ALASKA, DURING THE PERIOD JULY 15 TO AUGUST 16, 1965, INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY IN THE AIR FORCE ON JULY 31, 1965, AND PLACEMENT ON THE RETIRED LIST THE FOLLOWING DAY UNDER ORDERS DATED APRIL 8, 1965. ALSO INVOLVED ARE ORDERS DATED APRIL 12, 1965, RELIEVING YOU FROM DUTY IN ALASKA AND ASSIGNING YOU TO MCCHORD AIR FORCE BASE, WASHINGTON, FOR PROCESSING AND RETIREMENT. YOUR CLAIM WAS DISALLOWED BY SETTLEMENT OF THIS OFFICE DATED NOVEMBER 16, 1965, AND SUCH ACTION WAS SUSTAINED BY DECISION OF JANUARY 20, 1966, B-158147.

THE DIRECTORATE OF QUALITY EXAMINATION, AIR FORCE ACCOUNTING AND FINANCE CENTER, DEPARTMENT OF THE AIR FORCE, IN TRANSMITTING YOUR CLAIM TO THIS OFFICE FOR SETTLEMENT RECOMMENDED AGAINST PAYMENT STATING THAT:

"THE QUESTION OF PROPRIETY ARISES BECAUSE THE DEPENDENTS TRAVELED TO MCCHORD AFB, WASHINGTON WITH NO INTENT TO ESTABLISH RESIDENCE IN CONTINENTAL UNITED STATES. A MEMBER IS ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS FROM HIS LAST DUTY STATION, OR PLACE TO WHICH THEY WERE LAST TRANSPORTED AT GOVERNMENT EXPENSE TO THE HOME SELECTED BY THE MEMBER. MEMBER WAS TRANSFERRED TO MCCHORD AFB FOR PROCESSING AND RETIREMENT ONLY. DEPENDENTS WERE LAST TRANSPORTED AT GOVERNMENT EXPENSE TO ELMENDORF AFB ALASKA.'

IN THE DECISION OF JANUARY 20, 1966, IT WAS POINTED OUT THAT ALTHOUGH THE ORDERS OF APRIL 8, 1965, BEAR THE NOTATION "PCS" INDICATING A PERMANENT CHANGE OF STATION, SUCH ORDERS PROVIDED FOR YOU TO BE AT MCCHORD AIR FORCE BASE FOR ABOUT 10 DAYS AND DIRECTED NO DUTY OTHER THAN PROCESSING FOR RETIREMENT AND, HENCE, SUCH ORDERS COULD NOT BE REGARDED AS DIRECTING A PERMANENT CHANGE OF STATION TO MCCHORD AIR FORCE BASE. WE CONCLUDED THAT THE ONLY AUTHORIZED TRAVEL OF YOUR DEPENDENTS UNDER THE ORDERS EFFECTING YOUR RETIREMENT WAS FROM YOUR LAST PERMANENT DUTY STATION, ELMENDORF AIR FORCE BASE, ALASKA, TO THE PLACE WHICH YOU SELECTED AS YOUR HOME UPON RETIREMENT AND THEREFORE, THAT THE TRAVEL OF YOUR DEPENDENTS FROM ELMENDORF AIR FORCE BASE TO MCCHORD AIR FORCE BASE AND BACK TO ANCHORAGE, ALASKA, MUST BE REGARDED AS TRAVEL OTHER THAN FOR THE PURPOSE OF ESTABLISHING A RESIDENCE AND NOT REIMBURSABLE, NOTWITHSTANDING THE POSSIBILITY THAT YOUR RETIREMENT ORDERS MIGHT HAVE BEEN AMENDED OR CANCELLED BEFORE YOUR RETIREMENT BECAME EFFECTIVE SO AS TO CONTINUE YOU ON ACTIVE DUTY. ALSO, SINCE YOU HAD RAISED A QUESTION AS TO WHY ELMENDORF AIR FORCE BASE WAS NOT SELECTED AS THE PLACE YOUR RETIREMENT WAS EFFECTED, WE STATED THAT OUR RECORDS DID NOT SHOW WHY YOU WERE ORDERED TO MCCHORD AIR FORCE BASE FOR RETIREMENT.

IN YOUR PRESENT LETTER YOU SAY YOU WERE ASKED WHERE YOU WANTED TO BE RETIRED AND YOU SELECTED MCCHORD AIR FORCE BASE; THAT YOUR ORDERS WERE DESIGNATED AS PCS AND IF THEY DID NOT DIRECT A PERMANENT CHANGE OF STATION YOU WERE ERRONEOUSLY COUNSELED BY PERSONNEL AT ELMENDORF AIR FORCE BASE; THAT YOU DID NOT KNOW WHETHER YOU WOULD REMAIN ON ACTIVE DUTY BECAUSE OF THE VIET NAM CRISIS, AND THAT THE TRAVEL OF YOUR DEPENDENTS WAS NOT FOR A PLEASURE TRIP BUT WAS TRAVEL PERFORMED UNDER YOUR ORDERS AS THEY DID NOT WANT TO REMAIN IN ALASKA UNTIL YOU DECIDED UPON WHAT YOU WANTED TO DO.

IN A LETTER DATED AUGUST 24, 1965, YOU STATED THAT YOU DEPARTED FROM ELMENDORF AIR FORCE BASE ON JULY 15, 1965, AND ARRIVED AT MCCHORD AIR FORCE BASE, WASHINGTON, ON JULY 22, 1965. YOU FURTHER STATED THAT YOU WERE RETIRED FROM ACTIVE DUTY ON JULY 31, 1965, DEPARTING FROM MCCHORD ON THAT DAY; THAT YOU ARRIVED AT ANCHORAGE, ALASKA, ON AUGUST 16, 1965, AND THAT "AT TIME OF RETIREMENT I SELECTED ANCHORAGE, ALASKA, AS MY PERMANENT HOME AFTER RETIREMENT.' SUCH SCHEDULE OF TRAVEL AFFORDS NO BASIS FOR A CONCLUSION THAT IT WAS YOUR INTENTION TO RETURN TO ALASKA WHEN YOU DEPARTED FROM ELMENDORF AIR FORCE BASE AND THAT THE TRAVEL OF YOUR DEPENDENTS TO WASHINGTON WAS FOR THE PURPOSE OF ESTABLISHING A BONA FIDE RESIDENCE. AS STATED IN OUR DECISION OF JANUARY 20, 1966, THE REGULATIONS DO NOT PROVIDE FOR REIMBURSEMENT OF TRAVEL EXPENSES OF DEPENDENTS, IN OTHERWISE PROPER CASES, UNLESS THE TRAVEL IS PERFORMED FOR THE PURPOSE OF ESTABLISHING A BONA FIDE RESIDENCE.

CONTRARY TO THE ABOVE-QUOTED STATEMENT IN YOUR LETTER OF AUGUST 24, 1965, YOU STATED IN YOUR LETTER OF FEBRUARY 21, 1966, WITH REFERENCE TO YOUR SELECTION OF A HOME, THAT "IT SHOULD BE NOTED THAT THE SELECTION WAS MADE TEN (10) DAYS AFTER I RETIRED.' SUCH APPARENT DISCREPANCY AS TO THE TIME YOU MADE THE SELECTION IS NOT EXPLAINED. BUT HOWEVER THAT MAY BE, PARAGRAPH M7010 OF THE REGULATIONS PROVIDES THAT WHEN A MEMBER IS RETIRED UNDER THE CIRCUMSTANCES THERE STATED HE WILL BE ENTITLED TO TRANSPORTATION OF DEPENDENTS FROM HIS LAST DUTY STATION TO THE HOME WHICH HE SELECTS, PROVIDED THE TRAVEL TO SUCH HOME IS PERFORMED WITHIN ONE YEAR AFTER HIS RELEASE FROM ACTIVE DUTY. YOU WERE TRANSFERRED TO MCCHORD AIR FORCE BASE FOR A PERIOD OF ABOUT10 DAYS FOR PROCESSING AND RELEASE FROM ACTIVE DUTY. AS POINTED OUT IN OUR PRIOR DECISION, TRAVEL TO A PROCESSING CENTER FOR RELEASE FROM ACTIVE DUTY IS NOT REGARDED AS PERMANENT CHANGE OF STATION TRAVEL SINCE THE MEMBER IS TRANSFERRED THERE ONLY FOR A SHORT PERIOD FOR PROCESSING AND RELEASE RATHER THAN FOR THE PERFORMANCE OF DUTY. THEREFORE, REGARDLESS OF WHETHER YOU INTENDED TO RETURN TO ANCHORAGE AT THE TIME YOU DEPARTED FROM ELMENDORF OR WHETHER THE SELECTION OF A HOME WAS MADE 10 DAYS AFTER YOUR RETIREMENT, YOU WERE ENTITLED TO REIMBURSEMENT ONLY FOR THE TRAVEL OF YOUR DEPENDENTS FROM ELMENDORF, YOUR LAST PERMANENT DUTY STATION, TO ANCHORAGE.

WHILE IT IS REGRETTED THAT YOUR ORDERS MAY HAVE ERRONEOUSLY INDICATED THAT TRAVEL OF DEPENDENTS WAS AUTHORIZED IN EXCESS OF THE DISTANCE FROM ELMENDORF AIR FORCE BASE TO HOME OF SELECTION AND THAT YOU MAY HAVE BEEN ERRONEOUSLY ADVISED BY AIR FORCE PERSONNEL, IT IS WELL SETTLED THAT IN THE ABSENCE OF SPECIFIC STATUTORY PROVISION, THE UNITED STATES IS NOT LIABLE FOR NEGLIGENT ACTIONS OF ITS OFFICERS, AGENTS, OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES, GERMAN BANK V. UNITED STATES, 148 U.S. 573; 19 COMP. GEN. 503; AND 22 COMP. GEN. 221.

SINCE YOUR LETTER PRESENTS NO EVIDENCE OR MATERIAL INFORMATION NOT PREVIOUSLY CONSIDERED, THE DECISION OF JANUARY 20, 1966, IS AFFIRMED. THE DECISIONS OF THIS OFFICE ARE FINAL AND CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT.