B-144681, JUN. 14, 1961

B-144681, JUN. 14, 1961

TO MR. EARL A. ALLUISI:

YOUR LETTER DATED DECEMBER 6, 1960, IS IN THE NATURE OF A REQUEST FOR REVIEW OF OUR SETTLEMENT DATED OCTOBER 4, 1960, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF PART OF THE COST OF TRANSPORTING YOUR HOUSEHOLD GOODS FROM FORT KNOX, KENTUCKY, TO SAN JOSE, CALIFORNIA, UPON YOUR SEPARATION FROM ACTIVE MILITARY SERVICE AS CAPTAIN, UNITED STATES ARMY RESERVE.

PARAGRAPH 15 OF SPECIAL ORDERS NO. 96, DATED APRIL 23, 1958, ISSUED AT HEADQUARTERS, UNITED STATES ARMY ARMOR CENTER, FORT KNOX, KENTUCKY, RELIEVED YOU OF YOUR ASSIGNMENT TO UNITED STATES ARMY MEDICAL RESEARCH LABORATORY, FORT KNOX, KENTUCKY, AND ACTIVE DUTY AND ORDERED YOU TO PROCEED ON MAY 28, 1958, TO YOUR HOME OF RECORD OR PLACE FROM WHICH ORDERED TO ACTIVE DUTY TO ARRIVE NOT LATER THAN 12:00 P.M., MAY 29, 1958. YOUR HOME OF RECORD WAS SHOWN TO BE 3219 HANOVER AVENUE, RICHMOND, VIRGINIA, YOUR MAILING ADDRESS, 1591 MARY AVENUE, SUNNYVALE, CALIFORNIA, AND THE PLACE FROM WHICH YOU WERE ORDERED TO ACTIVE DUTY, COLUMBUS, OHIO. THE RECORD DISCLOSES THAT PURSUANT TO THE TERMS OF AN EMPLOYMENT AGREEMENT BETWEEN YOU AND THE LOCKHEED AIRCRAFT CORPORATION, THE COST OF SHIPMENT OF YOUR HOUSEHOLD GOODS FROM FORT KNOX, KENTUCKY, TO SAN JOSE, CALIFORNIA, IN THE AMOUNT OF $1,531.36, WAS PAID BY THE CORPORATION. YOU ASSERT THAT YOU ACTUALLY BORE THE FULL EXPENSE OF THE MOVEMENT FROM YOUR INCOME BECAUSE THE LOCKHEED AIRCRAFT CORPORATION REPORTED THE PAYMENT OF THESE EXPENSES AS "INCOME" TO YOU, RESULTING IN YOUR BEING COMPELLED TO PAY INCOME TAX ON THE FULL AMOUNT OF THIS PAYMENT, AND YOU URGE THAT YOU SHOULD BE REIMBURSED IN THE AMOUNT IT WOULD HAVE COST THE GOVERNMENT TO TRANSPORT YOUR HOUSEHOLD EFFECTS FROM FORT KNOX, KENTUCKY, LAST DUTY STATION, TO RICHMOND, VIRGINIA, HOME OF RECORD.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (D), 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 WHEN ORDERED TO MAKE A PERMANENT CHANGE OF STATION SHALL BE ENTITLED TO TRANSPORTATION (INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE, AND UNPACKING) OF BAGGAGE AND HOUSEHOLD EFFECTS, OR REIMBURSEMENT THEREFORE, TO AND FROM SUCH LOCATIONS AND WITHIN SUCH WEIGHT ALLOWANCES AS MAY BE PRESCRIBED BY THE SECRETARIES, WITHOUT REGARD TO THE COMPARATIVE COSTS OF THE VARIOUS MODES OF TRANSPORTATION. UNDER PARAGRAPH 8009-5A OF THE JOINT TRAVEL REGULATIONS, ISSUED PURSUANT TO SUCH STATUTORY AUTHORITY, YOU WERE ENTITLED, UPON RELEASE FROM ACTIVE DUTY, TO SHIPMENT OF HOUSEHOLD GOODS FROM YOUR LAST DUTY STATION, FORT KNOX, TO THE PLACE ELECTED BY YOU TO RECEIVE TRAVEL ALLOWANCES FOR YOUR TRAVEL, WHICH APPEARS TO HAVE BEEN RICHMOND, VIRGINIA. PARAGRAPH 8100-1, OF THE REGULATIONS PROVIDES THAT THE COSTS IN EXCESS OF THOSE AUTHORIZED WILL BE PAID BY THE MEMBERS FOR WHOM SHIPMENTS ARE MADE, AND AMONG THE CIRCUMSTANCES IN WHICH EXCESS COSTS MAY BE INCURRED ARE INCLUDED SHIPMENTS MADE FROM AND/OR TO POINTS OTHER THAN THOSE AUTHORIZED IN THE REGULATIONS.

UNDER THE CITED PROVISIONS OF LAW AND REGULATIONS YOU WERE ENTITLED UPON YOUR RELEASE FROM ACTIVE DUTY TO HAVE YOUR HOUSEHOLD GOODS SHIPPED FROM FORT KNOX, KENTUCKY, TO RICHMOND, VIRGINIA, OR ANY OTHER POINT ON A GOVERNMENT BILL OF LADING, PROVIDED ANY EXCESS CHARGES WHICH MAY HAVE BEEN INVOLVED WERE COLLECTED IN ADVANCE BY THE TRANSPORTATION OFFICER, OR SHIPMENT COULD HAVE BEEN MADE ON A COMMERCIAL BILL OF LADING AT YOUR PERSONAL EXPENSE SUBJECT TO REIMBURSEMENT IN AN AMOUNT NOT TO EXCEED THE COST TO THE GOVERNMENT FOR SHIPMENT BETWEEN THOSE POINTS.

THE LIABILITY ASSUMED BY THE GOVERNMENT IN CONNECTION WITH THE SHIPMENT OF A MEMBER'S HOUSEHOLD GOODS IS ONLY TO PROVIDE TRANSPORTATION IN KIND OR REIMBURSEMENT FOR ACTUAL SHIPPING EXPENDITURES MADE BY THE MEMBER. SETTLEMENT IN A COMMUTATION BASIS IS NOT AUTHORIZED AND THERE IS NO LIABILITY ON THE GOVERNMENT IN CASES OF MILITARY PERSONNEL WHO SHIP NO HOUSEHOLD GOODS INCIDENT TO THEIR RELEASE FROM ACTIVE DUTY, OR WHOSE EFFECTS ARE SHIPPED AT THE EXPENSE OF A THIRD PARTY.

WHILE UNDER YOUR EMPLOYMENT AGREEMENT THE LOCKHEED AIRCRAFT CORPORATION PAID FOR THE SHIPMENT OF YOUR HOUSEHOLD GOODS FROM FORT KNOX TO SAN JOSE, THE VALUE OF SUCH TRANSPORTATION REPRESENTS TAXABLE INCOME TO YOU AND NOT THE COST TO YOU OF THE SHIPMENT. THE INCREASED TAX PAYMENT REQUIRED AS A RESULT OF THAT INCOME SIMILARLY IS NOT A COST TO YOU OF THE SHIPMENT BUT IS PART OF YOUR INCOME TAX BASED ON TOTAL INCOME AND IS RELATED TO THE SHIPMENT COST ONLY COLLATERALLY IN THAT SUCH COST, ACTUALLY PAID BY A THIRD PARTY, IS BUT ONE COMPONENT PART OF YOUR TOTAL INCOME. SINCE THE REGULATIONS AUTHORIZE REIMBURSEMENT OF SHIPPING EXPENSES ONLY TO THE EXTENT OF TRANSPORTATION COSTS ACTUALLY PAID BY THE MEMBER IN ANY EVENT, FAVORABLE CONSIDERATION MAY NOT BE GIVEN YOUR CLAIM ON THE BASIS OF THE AMOUNT PAID BY LOCKHEED FOR THE MOVEMENT OF YOUR HOUSEHOLD EFFECTS OR OF THE AMOUNT PAID BY YOU IN ADDITIONAL TAXES AS A CONSEQUENCE OF THAT SHIPMENT.

SINCE THE COST INVOLVED IN THE SHIPMENT OF YOUR HOUSEHOLD EFFECTS MAY NOT PROPERLY BE VIEWED AS ACTUALLY HAVING BEEN PAID BY YOU THERE IS NO BASIS FOR THE PAYMENT OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF OCTOBER 4, 1960, IS SUSTAINED.

REGARDING YOUR FURTHER INQUIRY, OUR DECISIONS IN CASES SUCH AS THIS ARE FINAL AND CONCLUSIVE ON THE EXECUTIVE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT. THE UNITED STATES COURT OF CLAIMS, HOWEVER, HAS INDEPENDENT JURISDICTION GENERALLY TO ENTERTAIN ACTIONS BASED UPON CLAIMS AGAINST THE UNITED STATES. SEE 28 U.S.C. 1491.