B-123838, SEPT. 12, 1968

B-123838, SEPT. 12, 1968

TO TECHNICAL SERGEANT HAROLD J. MIDDLETON:

REFERENCE IS MADE TO YOUR LETTER OF MAY 3, 1968, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED DECEMBER 8, 1967, WHICH DISALLOWED YOUR CLAIMS FOR UNUSED LEAVE INCIDENT TO SERVICE IN THE UNITED STATES ARMY FROM SEPTEMBER 24, 1942, TO FEBRUARY 12, 1946, AND FOR THE COST OF FLAG CAR SERVICES INCIDENT TO THE SHIPMENT OF YOUR HOUSE TRAILER UNDER GOVERNMENT BILL OF LADING DATED FEBRUARY 9, 1966, UPON YOUR RETIREMENT FROM THE UNITED STATES AIR FORCE.

WITH RESPECT TO YOUR CLAIM FOR COMPENSATION FOR ACCRUED LEAVE FOR THE PERIOD FROM SEPTEMBER 24, 1942, TO FEBRUARY 12, 1946, YOU CONTEND THAT UNDER THE PROVISIONS OF SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, AS AMENDED, 50 U.S.C. APP. 525, YOUR SUBSEQUENT ACTIVE SERVICE WITH THE UNITED STATES AIR FORCE FROM FEBRUARY 12, 1951, THROUGH FEBRUARY 7, 1966, IS NOT TO BE INCLUDED IN COMPUTING THE 10-YEAR LIMITATION PRESCRIBED BY THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, FOR THE FILING OF A CLAIM WITH THE GENERAL ACCOUNTING OFFICE. YOU THEREFORE CONTEND THAT YOUR CLAIM IS NOT PRECLUDED FROM CONSIDERATION.

AS FOR YOUR CLAIM FOR PARTIAL REFUND OF EXCESS COST INVOLVED IN THE SHIPMENT OF YOUR HOUSE TRAILER, YOU CONTEND THAT THE ACCESSORIAL CHARGE OF $389.75, INVOLVING FLAG CAR SERVICES IS NOT PROPERLY CHARGEABLE TO YOU, CITING OUR DECISION OF AUGUST 9, 1967, B-161585, IN SUPPORT OF YOUR CONTENTION.

THE PERTINENT PROVISIONS IMPOSING LIMITATIONS TO COMPENSATION FOR UNUSED LEAVE ACCUMULATED AS OF SEPTEMBER 1, 1946, ARE CONTAINED IN SECTION 5 (A) AND (B) OF THE ARMED FORCES ACT OF 1946, AUGUST 9, 1946, 60 STAT. 965, AS AMENDED, 37 U.S.C. 34 (A) AND (B) (1952 ED.), AND ARE IN PERTINENT PART AS FOLLOWS:

"/A) LEAVE TO WHICH ENLISTED MEMBERS OF THE ARMED FORCES DISCHARGED PRIOR TO SEPTEMBER 1, 1946, AND FORMER ENLISTED MEMBERS OF THE ARMED FORCES DISCHARGED PRIOR TO AUGUST 9, 1946, ARE ENTITLED UNDER THE PROVISIONS OF SECTION 31A OF THIS TITLE SHALL, TO THE EXTENT NOT TAKEN, BE SETTLED AND COMPENSATED FOR ONLY IN THE MANNER PROVIDED IN SECTION 35 OF THIS TITLE AND IF APPLICATION IS MADE TO THE SECRETARY NOT LATER THAN JUNE 30, 1951,

"/B) IN ANY CASE IN WHICH A MEMBER OF THE ARMED FORCES ON ACTIVE DUTY ON SEPTEMBER 1, 1946 (OTHER THAN A MEMBER ON TERMINAL LEAVE ON SUCH DATE) HAS TO HIS CREDIT ON AUGUST 31, 1946, ACCUMULATED OR ACCRUED LEAVE AGGREGATING IN EXCESS OF SIXTY DAYS, SUCH LEAVE IN EXCESS OF SIXTY DAYS SHALL BE SETTLED AND COMPENSATED FOR ONLY IN THE MANNER PROVIDED IN SECTION 35 OF THIS TITLE AND IF APPLICATION IS MADE TO THE SECRETARY NOT LATER THAN JUNE 30, 1951.'

IN THE SETTLEMENT OF DECEMBER 8, 1967, YOUR CLAIM FOR ACCRUED LEAVE WAS DISALLOWED UNDER THE QUOTED STATUTORY PROVISIONS IN THE ABSENCE OF EVIDENCE SHOWING THAT YOU FILED YOUR CLAIM ON OR BEFORE JUNE 30, 1951, AS THEREIN REQUIRED.

YOUR CONTENTION, HOWEVER, IS THAT BECAUSE OF YOUR SUBSEQUENT ACTIVE SERVICE WITH THE UNITED STATES AIR FORCE, THE PERIOD DURING WHICH YOU MIGHT APPLY FOR BENEFITS UNDER THE QUOTED PROVISIONS SHOULD BE CONSIDERED TO EXTEND BEYOND JUNE 30, 1951, TO INCLUDE THE TEN-YEAR PERIOD FOR FILING CLAIMS AGAINST THE GOVERNMENT AUTHORIZED BY THE ACT OF OCTOBER 9, 1940, AS EXTENDED BY SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, WHICH PROVIDED THAT PERIODS OF MILITARY SERVICE SHOULD NOT BE INCLUDED IN COMPUTING ANY PERIOD LIMITED BY ANY LAW FOR THE BRINGING OF ANY ACTION OR PROCEEDING BY OR AGAINST ANY PERSON IN THE MILITARY SERVICE.

THE TEN-YEAR LIMITATION FOR THE FILING OF CLAIMS, AND ITS EXTENSION UNDER CERTAIN CIRCUMSTANCES BY SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, IS CONSIDERED TO PROVIDE A LIMITATION OF GENERAL APPLICATION IN AREAS NOT OTHERWISE SPECIFICALLY LIMITED BY STATUTE. HOWEVER, UNDER A WELL ESTABLISHED RULE OF STATUTORY CONSTRUCTION, WHERE ONE STATUTE DEALS WITH A SUBJECT IN GENERAL TERMS AND ANOTHER DEALS WITH A PART OF THE SAME SUBJECT IN A MORE DETAILED WAY, THE MORE SPECIFIC WILL PREVAIL UNLESS IT CLEARLY APPEARS THAT THE LEGISLATURE INTENDED TO MAKE THE GENERAL ACT CONTROLLING. SEE 37 COMP. GEN. 475, AND CASES CITED.

IN PROVIDING SPECIFICALLY FOR AN EXPIRATION DATE OF JUNE 30, 1951, FOR FILING APPLICATIONS UNDER SECTION 34 (A) AND (B), ALL MEMBERS ON ACTIVE DUTY ON SEPTEMBER 1, 1946, AS WELL AS FORMER ENLISTED MEMBERS WERE AFFECTED. IN VIEW OF THAT FACT, AND IN THE ABSENCE OF ANY EVIDENCE OF A CONTRARY CONGRESSIONAL INTENT, WE ARE OF THE VIEW THAT SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF1940 DOES NOT HAVE THE EFFECT OF EXTENDING THE FILING DATE UNDER THE ARMED FORCES LEAVE ACT OF 1946 BEYOND JUNE 30, 1951, FOR THE PAYMENT OF LEAVE ACCRUED PRIOR TO SEPTEMBER 1, 1946. ACCORDINGLY, IN THE ABSENCE OF EVIDENCE THAT YOU FILED AN APPLICATION PRIOR TO JULY 1, 1951, FOR PAYMENT OF LEAVE ACCRUED PRIOR TO SEPTEMBER 1, 1946, NO CONSIDERATION MAY BE GIVEN SUCH CLAIM.

WITH REFERENCE TO YOUR CLAIM FOR CREDIT AGAINST THE EXCESS COSTS CHARGED IN YOUR ACCOUNT INCIDENT TO THE SHIPMENT OF YOUR HOUSE TRAILER, IN WHICH YOU CONTEND THAT THE ACCESSORIAL CHARGE OF $389.75, INVOLVING FLAG CAR SERVICES, IS NOT PROPERLY CHARGEABLE TO YOU, THE APPLICABLE STATUTORY PROVISION IS CONTAINED IN SECTION 409 OF TITLE 37, U.S.C. THAT SECTION ON THE DATE YOU RETIRED PROVIDED AS FOLLOWS:

"409. UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED AND IN PLACE OF THE TRANSPORTATION OF BAGGAGE AND HOUSEHOLD EFFECTS OR PAYMENT OF A DISLOCATION ALLOWANCE, A MEMBER, OR IN THE CASE OF HIS DEATH HIS DEPENDENT, WHO WOULD OTHERWISE BE ENTITLED TO TRANSPORTATION OF BAGGAGE AND HOUSEHOLD GOODS UNDER SECTION 406 OF THIS TITLE, MAY TRANSPORT A HOUSE TRAILER OR MOBILE DWELLING WITHIN THE CONTINENTAL UNITED STATES, WITHIN ALASKA, OR BETWEEN THE CONTINENTAL UNITED STATES AND ALASKA, FOR USE AS A RESIDENCE BY ONE OF THE FOLLOWING MEANS -

"/1) TRANSPORT THE TRAILER OR DWELLING AND RECEIVE A MONETARY ALLOWANCE IN PLACE OF TRANSPORTATION AT A RATE TO BE PRESCRIBED BY THE SECRETARIES CONCERNED, BUT NOT MORE THAN 20 CENTS A MILE;

"/2) DELIVER THE TRAILER OR DWELLING TO AN AGENT OF THE UNITED STATES FOR TRANSPORTATION BY THE UNITED STATES OR BY COMMERCIAL MEANS; OR

"/3) TRANSPORT THE TRAILER OR DWELLING BY COMMERCIAL MEANS AND BE REIMBURSED BY THE UNITED STATES SUBJECT TO SUCH RATES AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED. HOWEVER, THE COST OF TRANSPORTATION UNDER CLAUSE (2) OR THE REIMBURSEMENT UNDER CLAUSE (3) MAY NOT BE MORE THAN THE LESSER OF (A) THE CURRENT AVERAGE COST FOR THE COMMERCIAL TRANSPORTATION OF A HOUSE TRAILER OR MOBILE DWELLING; (B) 51 CENTS A MILE; OR (C) THE COST OF TRANSPORTING THE BAGGAGE AND HOUSEHOLD EFFECTS OF THE MEMBER OR HIS DEPENDENT PLUS THE DISLOCATION ALLOWANCE AUTHORIZED IN SECTION 407 OF THIS TITLE. ANY PAYMENT AUTHORIZED BY THIS SECTION MAY BE MADE IN ADVANCE OF THE TRANSPORTATION CONCERNED. FOR THE PURPOSE OF THIS SECTION - CONTINENTAL UNITED STATES' MEANS THE FORTY-EIGHT CONTIGUOUS STATES AND THE DISTRICT OF COLUMBIA.'

THE RECORD SHOWS THAT YOUR TRAILER WAS SHIPPED BY GOVERNMENT BILL OF LADING A DISTANCE OF 1956 MILES AT A TOTAL COST TO THE GOVERNMENT OF $2124.35. FOR THAT SHIPMENT YOU RECEIVED A CREDIT OF $997.56 (1956 MILES AT 51 CENTS PER MILE) AND WERE CHARGED WITH COSTS INVOLVED IN EXCESS OF THAT AMOUNT.

SINCE YOU WERE ENTITLED TO NOT MORE THAN THE LESSER OF THREE ALTERNATIVE ALLOWANCES, INCLUDING AN ALLOWANCE OF 51 CENTS PER MILE (WITH WHICH YOU WERE CREDITED), YOU COULD NOT IN ANY EVENT BE ENTITLED TO AN ADDITIONAL ALLOWANCE ON THAT SHIPMENT.

THE DECISION CITED BY YOU, B-161585, DATED AUGUST 9, 1967, DOES NOT PERTAIN TO THE SHIPMENTS OF HOUSE TRAILERS OF MILITARY PERSONNEL WHICH ARE GOVERNED BY THE AUTHORITY CONTAINED IN 37 U.S.C. 409 AND IS THEREFORE NOT APPLICABLE IN YOUR CASE. THERE IS THEREFORE NO AUTHORITY FOR THE ASSUMPTION BY THE GOVERNMENT OF THE COST INVOLVED IN THE USE OF FLAG CAR SERVICES IN THE SHIPMENT OF YOUR HOUSE TRAILER.