B-144595, FEB. 28, 1961

B-144595, FEB. 28, 1961

TO BRIGADIER GENERAL CECIL P. LESSIG,:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 18, 1960, REQUESTING REVIEW OF SETTLEMENT DATED OCTOBER 28, 1960, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF STORING YOUR HOUSEHOLD EFFECTS FROM APRIL 1, 1955, TO NOVEMBER 30, 1958, INCIDENT TO YOUR SERVICE IN THE UNITED STATES AIR FORCE.

BY SPECIAL ORDERS NO. 94, DATED MAY 14, 1954, YOU WERE RELIEVED FROM ASSIGNMENT AND DUTY AT HEADQUARTERS, U.S. AIR FORCE, OFFICE OF THE SECRETARY OF DEFENSE, WASHINGTON, D.C., AND ASSIGNED TO 1501ST AERIAL PORT POSTMASTER, SAN FRANCISCO, CALIFORNIA, FOR TRANSPORTATION TO DESTINATION. BY LETTER ORDER NO. 323, DATED JULY 16, 1954, YOU WERE FURTHER ASSIGNED AND DIRECTED TO PROCEED ON OR ABOUT JULY 21, 1954, TO FAR EAST AIR FORCE, APO 925. SPECIAL ORDERS NO. 144, DATED JULY 23, 1954, FURTHER ASSIGNED YOU TO HEADQUARTERS, 5TH AIR FORCE (FEAF), APO 970, AND REQUIRED YOU TO REPORT NOT LATER THAN JULY 27, 1954. YOU CERTIFY THAT YOU SERVED WITH THE 5TH AIR FORCE IN KOREA UNTIL OCTOBER 1, 1954, WHEN YOU TRANSFERRED TO APO 994, JAPAN, WHERE YOU REMAINED ON DUTY UNTIL JUNE 21, 1958, WHEN BY SPECIAL ORDERS NO. A 657, DATED APRIL 8, 1958, YOU WERE TRANSFERRED TO HEADQUARTERS, AIR DEFENSE COMMAND, ENT AIR FORCE BASE, COLORADO SPRINGS, COLORADO.

UPON TRANSFER ON UNACCOMPANIED STATUS AND ASSIGNMENT TO KOREA, WHERE YOUR DEPENDENTS WERE NOT ALLOWED TO GO, YOUR HOUSEHOLD GOODS, WERE SHIPPED FROM WASHINGTON, D.C., TO SHREVEPORT, LOUISIANA, AND PLACED IN TEMPORARY COMMERCIAL STORAGE AT GOVERNMENT EXPENSE DURING THE PERIOD JULY 1, 1954, TO MARCH 31, 1955. YOU SAY YOU REQUESTED PERMANENT STORAGE FROM THE TRANSPORTATION OFFICE AT BARKSDALE AIR FORCE BASE, LOUISIANA, BUT UPON BEING INFORMED THAT THE NEAREST AVAILABLE PERMANENT GOVERNMENT STORAGE WAS SPOKANE, WASHINGTON, YOU ELECTED TO ALLOW YOUR GOODS TO REMAIN IN COMMERCIAL STORAGE AT YOUR EXPENSE DURING THE PERIOD APRIL 1, 1955 TO NOVEMBER 30, 1958. YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF THIS STORAGE AND A WAREHOUSE HANDLING CHARGE IN A TOTAL AMOUNT OF $679.25, WAS DISALLOWED FOR THE REASON THAT THE REGULATIONS EFFECTIVE IN YOUR CASE DID NOT PROVIDE FOR REIMBURSEMENT OF COMMERCIAL STORAGE COSTS BUT ONLY PROVIDED FOR STORAGE IN KIND. IT IS YOUR CONTENTION THAT THOSE EXPENSES ARE AUTHORIZED BY SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), SINCE THE AMOUNT YOU EXPENDED FOR COMMERCIAL STORAGE WAS MORE ECONOMICAL TO THE GOVERNMENT THAN REMOVAL AND SHIPMENT TO AVAILABLE GOVERNMENT STORAGE FACILITIES WOULD HAVE BEEN. YOU ALSO INDICATE THAT IF FAVORABLE CONSIDERATION IS NOT GIVEN YOUR CLAIM FOR NONTEMPORARY STORAGE THEN YOU WOULD BE ENTITLED TO TEMPORARY STORAGE DURING THE PERIOD JULY 26 TO NOVEMBER 30, 1958, WHILE ATTEMPTING TO LOCATE LIVING QUARTERS AT COLORADO SPRINGS, COLORADO.

WHILE IT IS TRUE THAT SECTION 303 (C) OF THE CAREER COMPENSATION ACT PROVIDES THAT NONTEMPORARY STORAGE OF BAGGAGE AND HOUSEHOLD EFFECTS MAY BE AUTHORIZED IN GOVERNMENT FACILITIES, OR IN COMMERCIAL FACILITIES WHENEVER SUCH STORAGE IS CONSIDERED TO BE MORE ECONOMICAL TO THE GOVERNMENT, THE LAW IS NOT SELF-EXECUTING, BUT REQUIRES THE ISSUANCE OF CONTROLLING REGULATIONS. FURTHERMORE, AT THE TIME YOUR GOODS WERE PLACED IN STORAGE THE LAW DID NOT AUTHORIZE NONTEMPORARY STORAGE IN COMMERCIAL FACILITIES AT GOVERNMENT EXPENSE WHEN CONSIDERED TO BE MORE ECONOMICAL THAN STORAGE IN GOVERNMENT FACILITIES, STATUTORY AUTHORITY FOR SUCH COMMERCIAL STORAGE HAVING BEEN PROVIDED BY AN AMENDMENT TO SECTION 303 (C) CONTAINED IN THE ACT OF AUGUST 5, 1955, 69 STAT. 532. THE REGULATIONS ISSUED TO IMPLEMENT SECTION 303 ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. AT THE TIME OF YOUR TRANSFER OVERSEAS PARAGRAPH 8006-2A, CHANGE 22, DATED APRIL 1, 1954, WAS IN EFFECT AND PROVIDED THAT WHERE STORAGE OF EFFECTS WAS DESIRED UPON ASSIGNMENT TO DUTY OUTSIDE THE UNITED STATES, THE HOUSEHOLD EFFECTS MIGHT BE PLACED IN NONTEMPORARY STORAGE AT AN INSTALLATION OF THE SERVICE CONCERNED WHEN SUCH FACILITIES WERE AVAILABLE. NO PROVISION HAD BEEN MADE IN THE REGULATIONS FOR NONTEMPORARY STORAGE IN COMMERCIAL FACILITIES NOR FOR PAYMENT OF COMMERCIAL STORAGE CHARGES INCIDENT TO SUCH STORAGE. WAS NOT UNTIL CHANGE 53, DATED DECEMBER 1, 1956, THAT THE REGULATIONS WERE CHANGED TO IMPLEMENT THE AMENDMENT OF AUGUST 5, 1955, BY PROVIDING THAT NONTEMPORARY STORAGE COULD BE AUTHORIZED IN EITHER GOVERNMENT OR COMMERCIAL FACILITIES WHICHEVER WAS DETERMINED BY THE TRANSPORTATION OFFICER TO BE MORE ECONOMICAL TO THE GOVERNMENT. THIS PROVISION PERMITTED TRANSPORTATION OFFICERS, IN CASES WHERE NONTEMPORARY STORAGE OF HOUSEHOLD GOODS WAS AUTHORIZED, TO DETERMINE WHETHER IT WOULD BE MORE ECONOMICAL TO PLACE THE EFFECTS IN COMMERCIAL OR IN GOVERNMENT STORAGE. THE CHANGE IN THE REGULATIONS WAS PROSPECTIVE ONLY AND MAY NOT BE INTERPRETED AS AN AUTHORIZATION FOR THE PAYMENT OF PUBLIC FUNDS FOR STORAGE CHARGES ON GOODS ALREADY IN COMMERCIAL STORAGE WHICH WERE PLACED THERE BY THE MEMBER OR AT HIS DIRECTION. AFTER THE REGULATIONS WERE AMENDED TO PERMIT TRANSPORTATION OFFICERS TO COMPARE THE COST OF COMMERCIAL STORAGE IN THE HANDLING OF REQUESTS FOR NONTEMPORARY STORAGE OF HOUSEHOLD GOODS AND PRIOR TO NOVEMBER 30, 1958, YOU APPARENTLY MADE NO FURTHER APPLICATION FOR NONTEMPORARY STORAGE OF YOUR EFFECTS. SINCE THE EFFECTS IN QUESTION WERE PLACED IN COMMERCIAL STORAGE AT A TIME WHEN SUCH NONTEMPORARY STORAGE AT GOVERNMENT EXPENSE WAS NOT AUTHORIZED AND WERE ALLOWED TO REMAIN THERE WITHOUT ANY FURTHER DETERMINATION OF THE TRANSPORTATION OFFICER, NO AUTHORITY EXISTS FOR REIMBURSEMENT TO YOU OF THE STORAGE CHARGES REGARDLESS OF WHETHER SUCH COMMERCIAL FACILITIES WERE MORE ECONOMICAL OR THAT THEY MIGHT HAVE BEEN SELECTED HAD APPLICATION BEEN MADE AFTER THE EFFECTIVE DATE OF CHANGE 53.

IN YOUR REQUEST FOR REVIEW YOU CLAIM THAT IN ANY EVENT YOU ARE ENTITLED TO TEMPORARY STORAGE FOR THE PERIOD JULY 26 TO NOVEMBER 30, 1958, WHILE ATTEMPTING TO SECURE LIVING QUARTERS AT YOUR NEW PERMANENT STATION, COLORADO SPRINGS, COLORADO. PARAGRAPH 8006-1D, CHANGE 53 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS WHO ARE AUTHORIZED NONTEMPORARY STORAGE WILL ALSO BE AUTHORIZED TEMPORARY STORAGE, WITHIN THE TIME LIMITS SET FORTH IN THE REGULATIONS, AT ORIGIN (PLACE OF NONTEMPORARY STORAGE), IN TRANSIT OR AT DESTINATION, IN CONNECTION WITH THE SHIPMENT FROM PLACE OF NONTEMPORARY STORAGE TO DESTINATION. WHILE YOUR GOODS WERE NOT IN AUTHORIZED NONTEMPORARY STORAGE, PRESUMABLY SUCH STORAGE WOULD HAVE BEEN FURNISHED IF A PROPER REQUEST THEREFOR HAD BEEN MADE AFTER COMMERCIAL STORAGE AT GOVERNMENT EXPENSE WAS AUTHORIZED. SINCE THE RECORD INDICATES THAT HAD THE GOODS BEEN PROMPTLY SHIPPED TO COLORADO SPRINGS, COLORADO, TEMPORARY STORAGE AT THAT POINT WOULD HAVE BEEN NECESSARY DUE TO UNAVAILABILITY OF SUITABLE HOUSING, IT IS CONCLUDED THAT YOU ARE ENTITLED TO TEMPORARY STORAGE OF YOUR EFFECTSAT GOVERNMENT EXPENSE FOR THE PERIOD JULY 26 TO NOVEMBER 30, 1958, WHILE YOU WERE ATTEMPTING TO LOCATE LIVING QUARTERS. A SETTLEMENT FOR THE AMOUNT THAT IT COST YOU FOR THAT STORAGE, NOT TO EXCEED WHAT IT WOULD HAVE COST ..END :