B-144786, MAR. 9, 1961

B-144786, MAR. 9, 1961

TO LIEUTENANT COLONEL DAVID V. SMITH, JR.:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 29, 1960, IN WHICH YOU CLAIM REIMBURSEMENT IN THE AMOUNT OF APPROXIMATELY $2,914.05 REPRESENTING EXPENSES ALLEGED TO HAVE BEEN INCURRED IN PREPARING FOR AN OVERSEAS ASSIGNMENT, TOGETHER WITH DISLOCATION ALLOWANCE IN THE AMOUNT OF $176 AND REIMBURSEMENT FOR TRANSPORTATION OF DEPENDENTS FROM WRIGHT-PATTERSON AIR FORCE BASE, OHIO, TO YOUR PERMANENT OFFICIAL ADDRESS IN PHOENIX, ARIZONA. THE LETTER WAS ORIGINALLY SENT TO THE AIR RESERVE RECORDS CENTER, U.S. AIR FORCE, DENVER, COLORADO, BUT WAS RETURNED BECAUSE OF LACK OF AUTHORITY FOR ITS PAYMENT, WITH THE COMMENT THAT THIS OFFICE HAS AUTHORITY TO SETTLE MERITORIOUS CLAIMS AND SUGGESTING THAT YOU SUBMIT THE CLAIM TO US.

THE RECORD SHOWS THAT SPECIAL ORDERS NO. 301, ISSUED JULY 14, 1959, BY HEADQUARTERS 3079TH AVIATION DEPOT WING (AMC) U.S.A.F., WRIGHT PATTERSON AIR FORCE BASE, OHIO, PROVIDED FOR YOUR RELEASE FROM ASSIGNMENT WITH THAT ORGANIZATION AND ASSIGNMENT TO HEADQUARTERS TUSLOG, USAFE, APO 254, NEW YORK. THE ORDERS DIRECTED THAT YOU AND YOUR DEPENDENTS REPORT ON SEPTEMBER 4, 1959, AT PIER 4, BROOKLYN ARMY TERMINAL, FOR DEPARTURE OVERSEAS. IT APPEARS THAT ON AUGUST 4, 1959, WHILE YOU WERE STILL AT WRIGHT-PATTERSON AIR FORCE BASE, OHIO, YOU RECEIVED OFFICIAL NOTIFICATION OF HEADQUARTERS UNITED STATES AIR FORCE LETTER OF JULY 30, 1959, WHICH STATED THAT YOU HAD BEEN SELECTED FOR RELEASE FROM ACTIVE DUTY EFFECTIVE NOVEMBER 30, 1959. SUBSEQUENTLY, BY SPECIAL ORDERS NO. 376, ISSUED AUGUST 31, 1959, BY HEADQUARTERS 3079TH AVIATION DEPOT WING, THE ORDERS OF JULY 14, 1959, WERE RESCINDED.

IN YOUR LETTER, YOU STATE THAT YOU ARE CLAIMING REIMBURSEMENT OF $2,254.05 AS PERSONAL FUNDS EXPENDED PREPARATORY TO MAKING THE OFFICIAL CHANGE OF STATION MOVE OVERSEAS UNDER PROPER ORDERS, PLUS AN ADDITIONAL SUM OF APPROXIMATELY $480 EXPENDED FOR SMALL PURCHASES OF SUPPLIES AND EQUIPMENT REQUIRED IN PREPARING FOR THE MOVE. YOU ALSO REQUEST REIMBURSEMENT OF THE SUM OF $180 YOU WERE REQUIRED TO PAY AS INTEREST ON A LOAN TO OBTAIN FUNDS TO PROCURE THE PERSONAL PROPERTY NECESSARY FOR THE OVERSEAS ASSIGNMENT. FURTHER, YOU CLAIM REIMBURSEMENT FOR THE TRAVEL OF YOUR DEPENDENTS FROM WRIGHT-PATTERSON AIR FORCE BASE, OHIO, TO PHOENIX, ARIZONA, AND $176 AS DISLOCATION ALLOWANCE.

APPARENTLY THE AIR FORCE COMMENT AND SUGGESTION HAS REFERENCE TO THE AUTHORITY CONFERRED ON THIS OFFICE BY THE ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236, WHICH PROVIDES AS FOLLOWS:

"WHEN THERE IS FILED IN THE GENERAL ACCOUNTING OFFICE A CLAIM OR DEMAND AGAINST THE UNITED STATES THAT MAY NOT LAWFULLY BE ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM OR DEMAND IN THE JUDGMENT OF THE COMPTROLLER GENERAL OF THE UNITED STATES CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, HE SHALL SUBMIT THE SAME TO THE CONGRESS BY A SPECIAL REPORT CONTAINING THE MATERIAL FACTS AND HIS RECOMMENDATION THEREON.'

WHILE THIS ACT CONTEMPLATES THE REPORTING TO THE CONGRESS FOR ITS CONSIDERATION OF CERTAIN CLAIMS FILED IN THE GENERAL ACCOUNTING OFFICE, THE PROVISIONS OF THE ACT MAY BE INVOKED ONLY WHEN IT IS DETERMINED THAT THE CLAIM "CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS.'

WITH RESPECT TO LEGAL LIABILITY ON THE PART OF THE GOVERNMENT FOR THE MONEY YOU SPENT FROM PERSONAL FUNDS, INCLUDING INTEREST ON A LOAN YOU MADE TO PROCURE THE FUNDS, IT MAY BE NOTED THAT IF YOUR ORDERS FOR TRANSFER OVERSEAS HAD REMAINED IN EFFECT AND THE TRAVEL HAD ACTUALLY BEEN PERFORMED THERE WOULD HAVE BEEN NO LEGAL BASIS FOR REIMBURSEMENT FOR THE PURCHASES MADE SINCE THE ITEMS WERE FOR YOUR PERSONAL USE. FURTHERMORE, THE GOVERNMENT RECEIVED NO BENEFIT FROM THE EXPENDITURES AND THEREFORE HAS NOT BEEN UNJUSTLY ENRICHED. MOREOVER, IT LONG HAS BEEN THE RULE THAT NO OFFICIAL TRAVEL IS REQUIRED UNDER CHANGE OF STATION ORDERS UNTIL SUCH TIME AS THE TRAVELER MUST DEPART FROM THE OLD STATION BY ORDINARY MEANS OF TRANSPORTATION (UNLESS OTHERWISE DIRECTED) TO REACH HIS DESTINATION ON THE DATE DESIGNATED BY THE TRAVEL ORDER. THE TERMS AND CONDITIONS OF TRAVEL ORDERS ISSUED TO MEMBERS OF THE ARMED FORCES ARE SUBJECT TO MODIFICATION OR REVOCATION AT ANY TIME PRIOR TO THE EXECUTION OF THE TRAVEL AS DIRECTED AND IT IS WELL SETTLED THAT ANY EXPENSES INCURRED BY THE MEMBER IN ARRANGING HIS PERSONAL AFFAIRS PREPARATORY TO COMPLYING WITH THE ORDERS MUST BE BORNE BY HIM IF THE ORDERS ARE RESCINDED OR CANCELED PRIOR TO THE EFFECTIVE DATE THEREOF. SEE 19 COMP. GEN. 315; 33 ID. 289. ACCORDINGLY, THERE IS NO BASIS FOR A CONCLUSION THAT THE GOVERNMENT IS LEGALLY LIABLE FOR THE PAYMENT OF YOUR CLAIM FOR REIMBURSEMENT OF THE MONEY YOU SPENT FROM PERSONAL FUNDS PREPARATORY TO A PERMANENT CHANGE OF STATION WHICH DID NOT BECOME EFFECTIVE.

AS TO THE POSSIBLE ELEMENTS OF EQUITY, IT IS RECOGNIZED THAT A MEMBER OF THE ARMED FORCES MAY SUFFER SOME FINANCIAL LOSS WHEN CHANGE OF STATION ORDERS ARE CANCELED PRIOR TO THE EFFECTIVE DATE THEREOF AND HE HAS INCURRED CERTAIN EXPENSES PREPARATORY TO COMPLYING WITH THE ORDERS. THIS, HOWEVER, HAS UNIFORMLY BEEN VIEWED AS A RISK WHICH HE ASSUMES IN MAKING SUCH EXPENDITURES PRIOR TO THE EFFECTIVE DATE OF HIS ORDERS. MOREOVER, THE ACTUAL LOSS SUSTAINED IN SUCH CASES IS DIFFICULT OF ASCERTAINMENT SINCE MANY OF THE ITEMS PURCHASED MAY EITHER BE UTILIZED BY THE MEMBER, EVEN THOUGH THE OVERSEAS MOVE WAS CANCELED OR RETURNED TO THE VENDOR FOR CREDIT OR REFUND, OR OTHERWISE DISPOSED OF WITHOUT SERIOUS FINANCIAL LOSS.

THEREFORE, IT IS OUR VIEW THAT YOUR CLAIM FOR REIMBURSEMENT OF THE FUNDS EXPENDED DOES NOT CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO WARRANT REPORTING THE MATTER FOR THE CONSIDERATION OF THE CONGRESS. CASES SUCH AS YOURS HAVE NEVER BEEN VIEWED AS COMING WITHIN THE PURVIEW OF THE ACT OF APRIL 10, 1928.

WITH RESPECT TO YOUR CLAIM FOR DISLOCATION ALLOWANCE, SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), PROVIDES FOR SUCH PAYMENT ONLY WHEN THE DEPENDENTS ARE AUTHORIZED TO MOVE AND ACTUALLY MOVE IN CONNECTION WITH A MEMBER'S PERMANENT CHANGE OF STATION, THE PAYMENT BEING SPECIFICALLY PROHIBITED IF SUCH CHANGE OF STATION IS FROM LAST DUTY STATION TO HOME. ACCORDINGLY, SINCE YOU DID NOT MOVE OVERSEAS AND THE ALLOWANCE IS NOT PAYABLE INCIDENT TO THE MOVEMENT FROM YOUR LAST DUTY STATION TO HOME, THERE IS NO AUTHORITY FOR THE PAYMENT OF THAT PORTION OF YOUR CLAIM.

AS TO YOUR CLAIM FOR REIMBURSEMENT OF TRANSPORTATION EXPENSES IN THE AMOUNT AUTHORIZED FOR THE TRAVEL OF YOUR DEPENDENTS FROM WRIGHT PATTERSON AIR FORCE BASE, OHIO, TO PHOENIX, ARIZONA, YOU ARE ADVISED THAT THE JOINT TRAVEL REGULATIONS PROVIDE GENERALLY THAT UPON RELEASE FROM ACTIVE DUTY A MEMBER IS ENTITLED TO MILEAGE TO HIS HOME OF RECORD OR THE PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY, AS HE MAY ELECT. ALSO, THEY PROVIDE THAT THE MEMBER IS ENTITLED TO REIMBURSEMENT FOR THE TRAVEL OF HIS DEPENDENTS TO THE PLACE HE ELECTS TO BE PAID MILEAGE, NOT TO EXCEED THE DISTANCE FROM HIS LAST STATION OR THE PLACE WHERE THE DEPENDENTS WERE LAST TRANSPORTED AT GOVERNMENT EXPENSE, PROVIDED THE TRAVEL IS PERFORMED FOR THE PURPOSE OF ESTABLISHING A RESIDENCE AND IS COMPLETED WITHIN ONE YEAR FOLLOWING THE MEMBER'S SEPARATION FROM THE SERVICE. IF YOU BELIEVE YOU ARE ENTITLED TO REIMBURSEMENT UNDER THOSE PROVISIONS FOR THE TRAVEL OF YOUR DEPENDENTS, A CLAIM SHOULD BE PRESENTED TO THE DEPARTMENT OF THE AIR FORCE. IN CASE YOU ARE NOT SATISFIED WITH THE SETTLEMENT OF SUCH CLAIM, YOU MAY PRESENT A CLAIM TO THE CLAIMS DIVISION OF THIS OFFICE FOR THE AMOUNT BELIEVED DUE. SUCH A CLAIM, IF PRESENTED, SHOULD SET FORTH FULLY THE FACTS ON WHICH IT IS BASED INCLUDING INFORMATION AS TO THE PERIOD DURING WHICH THE TRAVEL WAS PERFORMED, THE DEPENDENTS INVOLVED, THE PLACES BETWEEN WHICH THE TRAVEL WAS PERFORMED, AND WHETHER THE TRAVEL WAS PERFORMED FOR THE PURPOSE OF ESTABLISHING A RESIDENCE. ALSO INFORMATION SHOULD BE FURNISHED AS TO THE PLACE TO WHICH YOU WERE PAID MILEAGE INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY, TOGETHER WITH A COPY OF THE ORDERS RELEASING YOU FROM ACTIVE DUTY.