B-113884, MAY 28, 1953

B-113884, MAY 28, 1953

PRECIS-UNAVAILABLE

MR. WILLIAM B. KURTZ:

REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 2 AND APRIL 22, 1953, REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JANUARY 28, 1953, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF $388.06 PAID BY YOU FOR TRANSPORTATION AND STORAGE OF YOUR HOUSEHOLD EFFECTS INCIDENT TO THEIR MOVEMENT FROM NORFOLK, VIRGINIA, TO YOUR HOME AT HAMDEN, CONNECTICUT, VIA POINT OF STORAGE AT NEW HAVEN, CONNECTICUT, ACCOMPLISHED DURING THE PERIOD FROM JUNE 22, 1951, TO FEBRUARY 20, 1952, WHILE YOU WERE ON ACTIVE DUTY AS AN OFFICER OF THE U. S. NAVAL RESERVE.

IT APPEARS THAT UPON YOUR RECALL TO ACTIVE DUTY IN NOVEMBER, 1950, YOU WERE ASSIGNED TO DUTY ABOARD THE U.S.S. MONROVIA (APA-31). YOU APPARENTLY CONTINUED ON THAT DUTY ASSIGNMENT UNTIL DETACHED THEREFROM UNDER ORDERS OF THE CHIEF OF NAVAL PERSONNEL DATED AUGUST 28, 1952, FOR PROCESSING FOR RELEASE FROM ACTIVE DUTY WHICH WAS EFFECTED SEPTEMBER 17, 1952. YOU STATE THAT IN FEBRUARY, 1952 (1951), YOU MOVED YOUR FAMILY AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE TO NORFOLK, VIRGINIA, PRESUMABLY THE HOME PORT OR THE HOME YARD OF THE U.S.S. MONROVIA (APA-31), BUT THAT WHEN THE SHIP'S SCHEDULE WAS ALTERED IN APRIL, 1951, TO INDICATE A CONTINUOUS ABSENCE FROM NORFOLK OF NEARLY 12 MONTHS COMMENCING IN JUNE, 1951, YOU MOVED YOUR FAMILY AND HOUSEHOLD EFFECTS BACK TO CONNECTICUT, THE EFFECTS BEING PLACED IN STORAGE AT NEW HAVEN FROM JUNE, 1951, TO FEBRUARY, 1952, BECAUSE YOUR HOME AT HAMDEN WAS NOT AVAILABLE FOR OCCUPANCY UNTIL THAT TIME. THE RECORD DOES NOT INDICATE THAT THERE WAS A CHANGE OF HOME YARD OR HOME PORT OF YOUR SHIP WHILE YOU WERE ON ACTIVE DUTY OR THAT YOU OTHERWISE HAD A CHANGE OF STATION PRIOR TO YOUR RELEASE FROM ACTIVE DUTY UNDER THE ORDERS OF AUGUST 28, 1952.

SECTION 303(C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, PROVIDES THAT UNDER SUCH CONDITIONS AND LIMITATIONS AND FOR SUCH RANKS, GRADES, OR RATINGS AND TO AND FROM SUCH LOCATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED IN CONNECTION WITH A CHANGE OF STATION (WHETHER TEMPORARY OR PERMANENT) TO TRANSPORTATION OF BAGGAGE AND HOUSEHOLD EFFECTS, OR REIMBURSEMENT THEREFOR, TO AND FROM SUCH LOCATIONS AND WITHIN SUCH WEIGHT ALLOWANCES AS MAY BE PRESCRIBED BY THE SECRETARIES. ALSO IT IS PROVIDED IN THAT SECTION THAT WHEN ORDERS DIRECTING A CHANGE OF PERMANENT STATION FOR THE MEMBER CONCERNED HAVE NOT BEEN ISSUED, THE SECRETARIES CONCERNED MAY, NEVERTHELESS, AUTHORIZE THE MOVEMENT OF BAGGAGE AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE, BUT ONLY UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES. SUCH STATUTORY PROVISIONS CLEARLY CONTEMPLATE THAT ANY RIGHT TO BENEFITS THEREUNDER SHOULD ARISE ONLY AS AUTHORIZED BY THE SECRETARIES CONCERNED PURSUANT TO THE AUTHORITY THEREIN VESTED IN THEM. SECTION 303(B) OF SAID ACT PROVIDES THAT IMPLEMENTING REGULATIONS SHALL BE PROMULGATED BY THE SECRETARIES OF THE SERVICES AND THAT NO PROVISION OF SAID SECTION 303 SHALL BECOME EFFECTIVE UNTIL SUCH REGULATIONS HAVE BEEN ISSUED. REGULATIONS ISSUED UNDER THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 8014-1 OF THOSE REGULATIONS, IN EFFECT WHEN THE SHIPMENT IN QUESTION WAS MADE, PROHIBITED SHIPMENT OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE PRIOR TO RECEIPT OF ORDERS WHICH DIRECT A CHANGE OF STATION. THAT PARAGRAPH WAS REVISED, EFFECTIVE OCTOBER 1, 1951, IN INSTRUCTION MEMORANDUM 2-1 TO THE JOINT TRAVEL REGULATIONS, TO PROVIDE THAT SHIPMENT OF HOUSEHOLD GOODS IS NOT AUTHORIZED PRIOR TO THE ISSUANCE OF ORDERS, "EXCEPT IN CASE OF EMERGENCY, EXIGENCY OF THE SERVICE, OR WHEN REQUIRED BY SERVICE NECESSITY, AS DETERMINED BY THE APPROPRIATE AUTHORITY OF THE SERVICE CONCERNED." SUCH EXCEPTION CLEARLY CONTEMPLATES AN EXPRESS AFFIRMATIVE AUTHORIZATION BASED UPON AN ADMINISTRATIVE DETERMINATION OF NECESSITY FOR A MOVEMENT NOT OTHERWISE SUPPORTED BY CHANGE OF STATION ORDERS BECAUSE OF THE EXISTENCE OF AN EMERGENCY, EXIGENCY OF THE SERVICE, OR SERVICE NECESSITY REQUIREMENT.

IT SEEMS CLEAR THAT THE SHIPMENT OF YOUR HOUSEHOLD EFFECTS FROM NORFOLK WAS UNDERTAKEN PRIOR TO RECEIPT OF FURTHER CHANGE OF STATION ORDERS AS REQUIRED, WITHOUT EXCEPTION, BY APPLICABLE REGULATIONS THEN IN EFFECT. FURTHER, IT IS EVIDENT THAT EVEN IF SHIPMENT OF YOUR EFFECTS HAD BEEN DELAYED UNTIL THE EFFECTIVE DATE OF THE ABOVE-REFERRED TO REVISION OF PARAGRAPH 8014-1, JOINT TRAVEL REGULATIONS, THE CONDITIONS GIVING RISE TO THE SHIPMENT WERE NOT SUCH AS WOULD HAVE AFFORDED A PROPER BASIS FOR A DETERMINATION BY APPROPRIATE AUTHORITY OF THE NAVAL ESTABLISHMENT AUTHORIZING SUCH SHIPMENT AT GOVERNMENT EXPENSE PRIOR TO RECEIPT BY YOU OF CHANGE OF STATION ORDERS. UNDER SUCH CIRCUMSTANCES IT MUST BE CONCLUDED THAT NO AUTHORITY EXISTS FOR THE PAYMENT OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF JANUARY 28, 1953, IS SUSTAINED.

WITH REFERENCE TO YOUR REQUEST THAT YOU BE ADVISED "IF ANY OTHER GOVERNMENT AGENCY CAN BE CONTACTED CONCERNING SUBJECT CLAIM" IF DENIED HERE, YOU ARE INFORMED THAT THE ACTION OF THIS OFFICE ON CLAIMS AGAINST THE UNITED STATES IS FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. HOWEVER, INDEPENDENTLY OF THE ACTION OF THIS OFFICE THEREON, THE COURT OF CLAIMS OF THE UNITED STATES HAS JURISIDICTION TO CONSIDER AND DETERMINE CERTAIN CLAIMS AGAINST THE GOVERNMENT IF FILED THERE WITHIN SIX YEARS FROM THE DATE OF ACCRUAL THEREOF.