B-146082, JUN. 22, 1961

B-146082, JUN. 22, 1961

TO MR. HAROLD L. YOUNG:

YOUR LETTER OF MAY 25, 1961, REQUESTS REVIEW OF THE SETTLEMENT OF APRIL 13, 1961, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR YOUR WIFE'S TRAVEL AND SHIPMENT OF HOUSEHOLD EFFECTS FROM CHARLESTON, SOUTH CAROLINA, TO COLORADO SPRINGS, COLORADO, WHILE YOU WERE SERVING AS AIRMAN FIRST CLASS, UNITED STATES AIR FORCE.

BY SPECIAL ORDERS NO. 47, DATED FEBRUARY 9, 1959, YOUR WIFE WAS AUTHORIZED TO PROCEED ON OR ABOUT FEBRUARY 12, 1959, FROM CASABLANCA, MOROCCO, TO CHARLESTON AIR FORCE BASE, SOUTH CAROLINA, IN ACCORDANCE WITH PARAGRAPH 7009-3, JOINT TRAVEL REGULATIONS. THE ORDERS STATED THAT ALL LAND TRANSPORTATION COST IN THE CONTINENTAL UNITED STATES FROM THE PORT OF DEBARKATION TO THE DEPENDENT'S DESTINATION WOULD BE BORNE BY THE SPONSOR AND THAT TRAVEL UNDER THOSE ORDERS WAS LIMITED TO THE PORT OF DEBARKATION IN THE UNITED STATES. THE ORDERS ALSO AUTHORIZED SHIPMENT OF HOUSEHOLD GOODS TO THE PORT OF DEBARKATION IN THE UNITED STATES UNDER PARAGRAPH 8010 -2 OF THE JOINT TRAVEL REGULATIONS, AND STATED THAT THE PAYMENT OF SHIPPING, STORAGE AND HANDLING CHARGES FOR SUCH HOUSEHOLD GOODS AFTER ARRIVAL IN THE CONTINENTAL UNITED STATES WOULD NOT BE AUTHORIZED PRIOR TO RETURN OF THE SPONSOR TO THE CONTINENTAL UNITED STATES UNDER PERMANENT CHANGE OF ORDERS. YOUR WIFE TRAVELED FROM CASABLANCA, MOROCCO, TO CHARLESTON AIR FORCE BASE, SOUTH CAROLINA, BY GOVERNMENT AIR, FEBRUARY 12 AND 13, 1959, AND PROCEEDED AT PERSONAL EXPENSE TO COLORADO SPRINGS, COLORADO, WHERE SHE ARRIVED ON FEBRUARY 18, 1959. UPON ARRIVAL OF YOUR HOUSEHOLD EFFECTS AT CHARLESTON, SOUTH CAROLINA, THEY WERE FORWARDED TO COLORADO SPRINGS, COLORADO, AT PERSONAL EXPENSE IN MAY 1959.

BY PARAGRAPH 3, SPECIAL ORDERS NO. 128, DATED JUNE 11, 1959, YOU WERE TRANSFERRED FROM APO 30 TO APO 10. PARAGRAPH 1, SPECIAL ORDERS NO. A-66, DATED FEBRUARY 9, 1961, RETURNED YOU TO MCGUIRE AIR FORCE BASE, NEW JERSEY, AS A PERMANENT CHANGE OF STATION FOR THE PURPOSE OF SEPARATION, IT BEING STATED IN THOSE ORDERS THAT YOUR HOME WAS DENVER, COLORADO. ORDERS DATED FEBRUARY 20, 1961, ISSUED AT MCGUIRE AIR FORCE BASE, YOU WERE DISCHARGED FROM THE SERVICE ON THAT DATE. THOSE ORDERS LIST YOUR HOME OR RECORD AS INDIANAPOLIS, INDIANA, AND YOUR FUTURE MAILING ADDRESS AS 3019E 2D AVE., DENVER, COLORADO. YOUR CLAIM FOR REIMBURSEMENT FOR YOUR WIFE'S TRAVEL AND SHIPMENT OF HOUSEHOLD EFFECTS FROM THE PORT OF DEBARKATION TO COLORADO SPRINGS, COLORADO, WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASON THAT SUCH TRAVEL AND SHIPMENT OCCURRED PRIOR TO PERMANENT CHANGE OF STATION ORDERS. THE CRUX OF YOUR PRESENT CONTENTION IS THAT THE ORDERS OF FEBRUARY 9, 1959, PROVIDED THAT PAYMENT FOR SHIPMENT OF HOUSEHOLD GOODS WOULD NOT BE MADE PRIOR TO RETURN OF SPONSOR RATHER THAN THAT THE SHIPMENT ITSELF SHOULD NOT BE MADE PRIOR TO SUCH RETURN. ALSO, YOU SAY THAT WHEN THE ORDERS WERE ISSUED AIR FORCE PERSONNEL ADVISED YOU THAT YOUR DEPENDENT AND HOUSEHOLD EFFECTS COULD MOVE FROM THE PORT OF DEBARKATION AT THAT TIME AND THAT UPON YOUR RETURN PAYMENT WOULD BE MADE NOT TO EXCEED THE COST OF YOUR NEW STATION.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), PROVIDES FOR THE TRAVEL OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD GOODS UPON PERMANENT CHANGE OF STATION OF THE MEMBER, INCLUDING THE CHANGE FROM LAST STATION TO HOME. IT FURTHER PROVIDES FOR SUCH TRAVEL IN THE ABSENCE OF CHANGE OF STATION ORDERS ONLY UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES, INCLUDING WHEN THE MEMBER IS SERVING OVERSEAS. THOSE PROVISIONS ARE NOT SELF-EXECUTING, HOWEVER, BUT REQUIRE THE ISSUANCE OF REGULATIONS BY THE SECRETARIES OF THE SERVICES CONCERNED. PARAGRAPH 700-9 OF THE JOINT TRAVEL REGULATIONS RESTRICTS TRAVEL OF DEPENDENTS AT GOVERNMENT EXPENSE PRIOR TO CHANGE OF STATION ORDERS ISSUED TO THE MEMBER, WITH AN EXCEPTION NOT HERE MATERIAL. PROVISIONS ARE MADE IN THE REGULATIONS, HOWEVER, DEPENDENTS' TRANSPORTATION IN THE ABSENCE OF CHANGE OF STATION ORDERS WHEN REQUIRED UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES. PARAGRAPH 7009-3 OF THOSE REGULATIONS IN EFFECT WHEN THE TRAVEL HERE INVOLVED WAS PERFORMED, CITED IN THE ORDERS OF FEBRUARY 9, 1959, LIMITS THE RETURN TRANSPORTATION OF DEPENDENTS TO THE UNITED STATES IN ADVANCE OF THE MEMBER'S CHANGE OF STATION ORDER TO TRANSPORTATION TO THE PORT OF DEBARKATION BY SPECIFICALLY PROVIDING THAT TRANSPORTATION BEYOND THAT POINT WILL NOT BE FURNISHED PRIOR TO THE RETURN OF THE MEMBER TO THE UNITED STATES UNDER PERMANENT CHANGE OF STATION ORDERS. THAT PARAGRAPH FURTHER PROVIDES THAT UPON COMPLETION OF THE CURRENT OVERSEAS TOUR OF DUTY AND TRANSFER OF THE MEMBER TO A STATION IN THE UNITED STATES, TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IS THEN AUTHORIZED AT NOT TO EXCEED THE ENTITLEMENT FROM THE PORT OF DEBARKATION IN THE UNITED STATES TO THE NEW STATION. UNDER PARAGRAPH 7011 A MEMBER ON ACTIVE DUTY WHO IS SEPARATED FROM THE SERVICE IS ENTITLED TO TRANSPORTATION OF DEPENDENTS NOT TO EXCEED THE DISTANCE FROM HIS LAST DUTY STATION, OR PLACE TO WHICH HIS DEPENDENTS WERE LAST TRANSPORTED AT GOVERNMENT EXPENSE, TO HIS HOME OF RECORD OR THE PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY.

AT THE TIME HERE INVOLVED PARAGRAPH 8010-2 OF THE JOINT TRAVEL REGULATIONS PROVIDED THAT ORDERS AUTHORIZING TRANSPORTATION OF DEPENDENTS TO THE UNITED STATES UNDER PARAGRAPH 7009-3 COULD ALSO AUTHORIZE THE SHIPMENT OF HOUSEHOLD GOODS, AND THAT SUCH ORDERS SHOULD CITE THAT SUBPARAGRAPH AND ,SPECIFICALLY PROHIBIT SHIPMENT BEYOND THE POINT OF DEBARKATION IN THE UNITED STATES AND STORAGE AFTER ARRIVAL IN THE UNITED STATES AT GOVERNMENT EXPENSE.' IT FURTHER PROVIDED THAT UPON COMPLETION OF THE CURRENT OVERSEAS TOUR AND TRANSFER OF THE MEMBER UNDER PERMANENT CHANGE OF STATION ORDERS TO ANOTHER OVERSEAS DUTY STATION FOR ADDITION TOUR OF DUTY OR AT LEAST 18 MONTHS' DURATION, OR TO A DUTY STATION IN THE UNITED STATES, SHIPMENT OF HOUSEHOLD GOODS WOULD THEN BE AUTHORIZED NOT TO EXCEED ENTITLEMENT FROM THE PORT OF DEBARKATION IN THE UNITED STATES TO WHICH RETURNED TO THE MEMBER'S NEW DUTY STATION.

THUS, UNDER THE PROVISIONS WHICH AUTHORIZED YOUR WIFE'S RETURN TO THE UNITED STATES AND SHIPMENT OF HOUSEHOLD GOODS PRIOR TO PERMANENT CHANGE OF STATION ORDERS DIRECTING YOUR RETURN, TRAVEL OF YOUR WIFE AND SHIPMENT OF HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE WERE AUTHORIZED ONLY TO THE PORT OF DEBARKATION IN THE UNITED STATES. FURTHER TRAVEL AND SHIPMENT AT PUBLIC EXPENSE WERE NOT AUTHORIZED UNTIL FURTHER PERMANENT CHANGE OF STATION ORDERS WERE ISSUED. SINCE YOUR DEPENDENT DID NOT TRAVEL AND YOUR HOUSEHOLD EFFECTS WERE NOT SHIPPED FROM THE PORT OF DEBARKATION TO YOUR HOME INCIDENT TO PERMANENT CHANGE OF STATION ORDERS BUT APPARENTLY WERE AT YOUR HOME IN DENVER WHEN THE ORDERS WERE ISSUED, THERE IS NO AUTHORITY UNDER THE REGULATIONS FOR PAYMENT OF YOUR CLAIM. IT IS UNFORTUNATE THAT SERVICE PERSONNEL MAY HAVE MISINFORMED YOU AS TO YOUR RIGHTS. SUCH FACT, HOWEVER, AFFORDS NO BASIS FOR THE PAYMENT OF YOUR CLAIM, IT BEING WELL ESTABLISHED THAT IN THE ABSENCE OF A STATUTE SO PROVIDING, THE GOVERNMENT IS NOT LIABLE FOR LOSS OR DAMAGE RESULTING FROM NEGLIGENT ACTS OR OMISSIONS OF DUTY OF OFFICERS OR AGENTS EMPLOYED IN THE SERVICE. SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515, AND CASES CITED THEREIN.

ACCORDINGLY, THE SETTLEMENT OF APRIL 13, 1961, WAS CORRECT AND IS SUSTAINED.