B-137938, NOV 11, 1958

B-137938, NOV 11, 1958

PRECIS-UNAVAILABLE

MR. JOHN H. MINGUS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 1, 1958, REQUESTING REVIEW OF THE SETTLEMENT OF AUGUST 19, 1958, WHICH DISALLOWED YOUR CLAIM FOR $146.25 FOR STORAGE OF YOUR HOUSEHOLD EFFECTS.

BY PARAGRAPH 1, SPECIAL ORDERS NO. 142, DATED JULY 17, 1953, YOU WERE RELEASED FROM ASSIGNMENT AND DUTY AT DONALDSON AIR FORCE BASE, GREENVILLE, SOUTH CAROLINA, AND TRANSFERRED TO PARKS AIR FORCE BASE, CALIFORNIA, FOR FURTHER ASSIGNMENT TO FAR EAST AIR FORCE FOLLOWING SHORT PERIODS OF TEMPORARY DUTY IN THE UNITED STATES. ON JULY 29, 1958, YOU EXECUTED AN APPLICATION FOR TRANSPORTATION OF HOUSEHOLD EFFECTS IN WHICH YOU REQUESTED THE TRANSPORTATION OFFICER, DONALDSON AIR FORCE BASE, TO SHIP YOUR HOUSEHOLD EFFECTS FROM YOUR RESIDENCE IN GREENVILLE TO TEMPORARY STORAGE IN THE SAME CITY. IN EXECUTING THE APPLICATION YOU CERTIFIED THAT YOU WOULD PAY ANY HANDLING, STORAGE OR OTHER COSTS NOT AUTHORIZED BY REGULATIONS. THE RECORD INDICATES THAT ON THE BASIS OF YOUR APPLICATION, YOUR EFFECTS WERE PLACED IN TEMPORARY COMMERCIAL STORAGE ON AUGUST 4, 1953, AND WERE STORED AT GOVERNMENT EXPENSE UNTIL FEBRUARY 4, 1954, AT A COST OF $110.93. THE EFFECTS REMAINED IN SUCH STORAGE UNTIL MARCH 16, 1955, WHEN THEY WERE SHIPPED AT GOVERNMENT EXPENSE TO JAPAN. YOUR CLAIM IS FOR STORAGE FOR THE PERIOD FEBRUARY 4, 1954 TO FEBRUARY 4, 1955. YOUR PRESENT LETTER YOU STATE THAT YOU SIGNED THE APPLICATION IN BLANK; THAT YOU WERE UNDER THE IMPRESSION YOUR EFFECTS WOULD BE PLACED IN NONTEMPORARY GOVERNMENT STORAGE AND RETAINED THERE WHILE YOU WERE OVERSEAS AND FOR ONE YEAR THEREAFTER IF SO DESIRED; THAT ADMINISTRATIVE PROCEDURES IN EFFECT AT DONALDSON AIR FORCE BASE RESULTED IN YOUR EFFECTS BEING PLACED IN COMMERCIAL STORAGE, AND THAT YOU ADVISED THE TRANSPORTATION OFFICER THERE OF YOUR OBJECTION WHEN YOU LEARNED YOUR EFFECTS ACTUALLY WERE IN TEMPORARY COMMERCIAL STORAGE.

SECTION 303(C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, PROVIDES THAT, UNDER SUCH REGULATIONS AS THE SECRETARIES MAY PRESCRIBE, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO "TRANSPORTATION (INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE, AND UNPACKING)" OF HOUSEHOLD EFFECTS, IN CONNECTION WITH A CHANGE OF STATION, TO AND FROM SUCH LOCATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES. THE JOINT TRAVEL REGULATIONS WERE PROMULGATED PURSUANT TO THAT AUTHORITY OF LAW. PARAGRAPH 8006-2 OF THE REGULATIONS, IN EFFECT AT THE TIME HERE INVOLVED, PROVIDED THAT MEMBERS COULD APPLY FOR STORAGE OF THEIR HOUSEHOLD EFFECTS AT AN INSTALLATION OF THE SERVICE CONCERNED AND THAT THE GRANTING OF A REQUEST WOULD DEPEND UPON WHETHER FACILITIES WERE AVAILABLE. THERE WAS NO PROVISION IN THE REGULATIONS FOR NONTEMPORARY STORAGE IN COMMERICAL FACILITIES OR FOR PAYMENT OF COMMERCIAL STORAGE CHARGES INCIDENT TO SUCH STORAGE. THUS, THE STORAGE OF HOUSEHOLD EFFECTS BY THE GOVERNMENT WAS A SERVICE THAT COULD BE RENDERED IN KIND ONLY, AND WHERE THE EFFECTS IN FACT WERE NOT SO STORED BUT REMAINED IN COMMERCIAL STORAGE, THERE IS NO LEGAL BASIS FOR REIMBURSEMENT OF THE COST INCURRED. EVEN THOUGH GOVERNMENT STORAGE MAY HAVE BEEN DENIED THROUGH MISUNDERSTANDING OR ERROR, NO PAYMENT FOR STORAGE IS AUTHORIZED, IT BEING WELL ESTABLISHED THAT, IN THE ABSENCE OF A STATUTE SO PROVIDING, THE GOVERNMENT IS NOT LIABLE FOR LOSS OR DAMAGE RESULTING FROM THE NEGLIGENT SETS OR OMISSIONS OF DUTY OF THE OFFICERS OR AGENTS EMPLOYED IN THE PUBLIC SERVICE. SEE ROBERTSON V. SICHEL, 127 U. S. 507, 515.

ACCORDINGLY, THE SETTLEMENT OF AUGUST 19, 1958, WAS CORRECT AND IS SUSTAINED.