B-139161, AUG. 7, 1959

B-139161, AUG. 7, 1959

TO STAFF SERGEANT WILLIAM M. MOSS:

REFERENCE IS MADE TO YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL OF YOUR DEPENDENTS (WIFE AND FOUR CHILDREN) FROM NEW YORK, NEW YORK, TO BRIZE, NORTON, ENGLAND.

BY PARAGRAPH 1, SPECIAL ORDERS NO. 548, DATED JUNE 6, 1958, YOU WERE RELIEVED FROM ASSIGNMENT AT HUNTER AIR FORCE BASE, GEORGIA, AND TRANSFERRED TO DUTY OVERSEAS. THE ORDERS AUTHORIZED CONCURRENT TRAVEL OF DEPENDENTS AND FURTHER AUTHORIZED YOU TO PROCEED TO YOUR HOME, WAYNESVILLE, NORTH CAROLINA, AS LEAVE NOT EARLIER THAN JUNE 29, 1958. THE ORDERS INSTRUCTED YOU AND YOUR DEPENDENTS TO BE AVAILABLE AT THAT ADDRESS FOR PORT CALL OF THE COMMANDING GENERAL FORT HAMILTON, NEW YORK, ON OR AFTER AUGUST 1, 1958, AND IF PORT CALL WAS NOT RECEIVED 15 DAYS PRIOR TO THAT DATE, YOU WERE TO CONTACT FORT HAMILTON, PREFERABLY BY WIRE, FOR FURTHER INSTRUCTIONS.

IT APPEARS THAT ON JULY 15, 1958, YOU WIRED FORT HAMILTON AND WERE ADVISED THAT THE PORT CALL WOULD BE DELAYED BECAUSE SPACE WAS NOT AVAILABLE; THAT YOU SHOULD USE ALL ACCRUED LEAVE PLUS 30 DAYS' ADVANCE LEAVE, AND THAT YOU SHOULD MAKE FURTHER INQUIRY PRIOR TO EXPIRATION OF ADVANCE LEAVE. YOU ALLEGE THAT ON AUGUST 19, 1958, YOU PHONED THE NEW YORK INSTALLATION, AS INSTRUCTED, AND WERE ADVISED OF FURTHER DELAY BECAUSE OF NONRECEIPT OF PASSPORTS FOR YOUR TWO STEPSONS. YOU FURNISHED THE INFORMATION THAT THOSE CHILDREN WERE COVERED BY YOUR WIFE'S BRITISH PASSPORT. ON THE SAME DATE YOU WERE ADVISED THAT YOU WERE SCHEDULED TO TRAVEL BY GOVERNMENT AIR FROM MCGUIRE AIR FORCE BASE, NEW JERSEY, ON AUGUST 26, 1958, BUT THAT SPACE WAS NOT AVAILABLE FOR TRAVEL OF YOUR DEPENDENTS ON THAT DATE. YOU DEPARTED MCGUIRE AIR FORCE BASE EN ROUTE TO BURTONWOOD, ENGLAND, ON AUGUST 26, 1958. YOU HAVE FURNISHED A CERTIFICATE STATING THAT SPACE WAS NOT AVAILABLE FOR TRAVEL OF YOUR DEPENDENTS ON THE SAME FLIGHT. YOU FURTHER STATE YOU WERE ADVISED ON AUGUST 19, 1958, THAT THE AVAILABILITY OF SPACE FOR THE TRAVEL OF YOUR DEPENDENTS "COULD BE ANY TIME UP TO SIX OR EIGHT MONTHS," BUT THAT IF YOU WANTED TO BEAR THE EXPENSE FOR THEIR TRAVEL YOU WOULD BE REIMBURSED. THE RECORD HERE DOES NOT SUPPORT THAT STATEMENT. IT IS ADMINISTRATIVELY REPORTED, HOWEVER, THAT ON AUGUST 19, 1958, YOU REQUESTED THAT YOUR FAMILY'S PASSPORTS BE FORWARDED TO YOU AT YOUR LEAVE ADDRESS, AND THAT YOU WERE ADVISED IF YOU ARRANGED FOR THEIR COMMERCIAL TRANSPORTATION TO ENGLAND FROM PERSONAL FUNDS YOU WOULD NOT BE REIMBURSED. SUCH ADVICE UNDOUBTEDLY WAS PREMISED ON THE FACT THAT GOVERNMENT TRANSPORTATION WOULD BE AVAILABLE AND COULD BE FURNISHED IN PROPER TIME. ON AUGUST 22, 1958, YOU PURCHASED COMMERCIAL AIR TRANSPORTATION FOR YOUR DEPENDENTS FROM NEW YORK TO LONDON. THEY DEPARTED ON AUGUST 25, 1958.

THE TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES IS GOVERNED BY JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253. PARAGRAPH 7002-1B OF THOSE REGULATIONS PROVIDES THAT FOR TRANSOCEANIC TRAVEL OF DEPENDENTS TO OR FROM AREAS OUTSIDE THE UNITED STATES, GOVERNMENT AIRCRAFT OR VESSELS WILL BE UTILIZED, IF AVAILABLE, EXCEPT IN CERTAIN INSTANCES. THE ONLY EXCEPTION WHICH SEEMS PERTINENT TO YOUR CLAIM IS THE ONE WHICH PERMITS USE OF COMMERCIAL TRANSPORTATION WHEN IT IS DETERMINED BY THE APPROPRIATE AUTHORITY OF THE SERVICE CONCERNED THAT THE USE OF GOVERNMENT FACILITIES WOULD INVOLVE A DELAY OF MORE THAN 30 DAYS. THE DEPARTMENT OF THE AIR FORCE HAS ADVISED US THAT IT HAS BEEN AIR FORCE POLICY SINCE MAY 27, 1958, TO MOVE ALL AIR FORCE PERSONNEL AND THEIR ACCOMPANYING DEPENDENTS BY AIR UNLESS THE DEPENDENTS REFUSE TO FLY; THAT YOUR FAMILY DID NOT REFUSE TO TRAVEL BY THAT MEANS, AND THAT THERE HAS ALWAYS BEEN ADEQUATE GOVERNMENT AIRLIFT TO MOVE ALL PERSONNEL PROGRAMMED TO MOVE DURING A GIVEN MONTH. WHILE THAT REPORT IS NOT IN AGREEMENT WITH THE INFORMATION YOU STATE WAS FURNISHED YOU AS TO THE AVAILABILITY OF GOVERNMENT TRANSPORTATION, IT LONG HAS BEEN THE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT IN CASES INVOLVING CONFLICT BETWEEN STATEMENTS MADE BY THE CLAIMANT AND OFFICIAL REPORTS FROM THE ADMINISTRATIVE OFFICE, TO ACCEPT THE LATTER. FURTHERMORE, EVEN IF IT WERE ESTABLISHED THAT YOU RECEIVED INFORMATION AS ALLEGED, SUCH ERRONEOUS INFORMATION WOULD CONSTITUTE NO LEGAL BASIS FOR ALLOWING YOUR CLAIM. ON THE BASIS OF THE FACTS PRESENTED IT MUST BE CONCLUDED THAT GOVERNMENT TRANSPORTATION WOULD HAVE BEEN AVAILABLE FOR TRAVEL OF YOUR DEPENDENTS AND THAT IT WOULD HAVE BEEN FURNISHED WITHIN 30 DAYS AFTER YOUR DEPARTURE AND, HENCE, THERE IS NO LEGAL BASIS FOR THE PAYMENT OF YOUR CLAIM.

THE DEPARTMENT OF THE AIR FORCE IN TRANSMITTING YOUR CLAIM TO THIS OFFICE RECOGNIZED THAT THERE IS NO LEGAL AUTHORITY FOR PAYMENT BY THE ADMINISTRATIVE BRANCH OF THE GOVERNMENT. HOWEVER, IT RECOMMENDED THAT YOUR CLAIM BE GIVEN FAVORABLE CONSIDERATION UNDER THE PROVISIONS OF THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 31 U.S.C. 236.

THAT ACT PROVIDES FOR THE SUBMISSION TO THE CONGRESS BY THIS OFFICE OF ONLY THOSE CASES WHEREIN THERE IS A LEGAL OR EQUITABLE LIABILITY ON THE PART OF THE GOVERNMENT AND SETTLEMENT CANNOT BE MADE SOLELY BECAUSE OF THE ABSENCE OF AN APPROPRIATION AVAILABLE THEREFOR. SINCE, AS INDICATED ABOVE, THERE IS NO LIABILITY ON THE PART OF THE GOVERNMENT IN THIS CASE, THE MATTER IS NOT WITHIN THE PURVIEW OF THE MERITORIOUS CLAIMS ACT AND WE HAVE NO AUTHORITY THEREUNDER TO SUBMIT IT TO THE CONGRESS. 38 COMP. GEN. 314.