B-147986, MAR. 6, 1962

B-147986, MAR. 6, 1962

TO MAJOR WALTER S. ZETLAU:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 8, 1962, REQUESTING RECONSIDERATION OF SETTLEMENT OF NOVEMBER 6, 1961, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES INCURRED FOR TRANSPORTATION OF YOUR PRIVATELY OWNED AUTOMOBILE FROM THE UNITED STATES ARMY TRANSPORTATION TERMINAL, BROOKLYN, NEW YORK, TO MAUSTON, WISCONSIN, DURING THE PERIOD FEBRUARY 23 TO 29, 1960.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT PARAGRAPH 3, ARMY REGULATIONS NO. 55-76, PROVIDES THAT THE MOVEMENT OF PRIVATELY OWNED VEHICLES FROM PORTS OF DEBARKATION WILL BE AT NO EXPENSE TO THE GOVERNMENT, EXCEPT FOR MILITARY MEMBERS COMING UNDER THE PROVISIONS OF SECTION 12 OF THE MISSING PERSONS ACT OF MARCH 7, 1942, AS AMENDED. YOU STATE THAT IT WAS YOUR INTENTION TO BASE YOUR CLAIM ON THE MISSING PERSONS ACT AND YOU REQUEST A SPECIFIC EXPLANATION IN THE MATTER IN THE EVENT THE CLAIM DOES NOT COME WITHIN THE PURVIEW OF THAT ACT.

BY EVACUATION ORDER NO. 59-112, DATED DECEMBER 3, 1959, HEADQUARTERS, UNITED STATES ARMY HOSPITAL, FRANKFURT, APO 757, YOU WERE MEDICALLY EVACUATED ON DECEMBER 5, 1959, FROM THE FACILITY TO THE CONTINENTAL UNITED STATES, MCGUIRE AIR FORCE BASE, NEW JERSEY. PURSUANT TO ORDERS OF THAT BASE DATED DECEMBER 6, 1959, YOU PROCEEDED TO THE DESTINATION HOSPITAL, FITZSIMONS GENERAL HOSPITAL, DENVER, COLORADO, FOR FURTHER OBSERVATION, TREATMENT AND DISPOSITION, WHERE YOU REMAINED UNTIL YOUR RELEASE AND ASSIGNMENT BY ORDERS DATED FEBRUARY 24, 1960, TO THE 47TH ORDNANCE DETACHMENT, FORT HOOD, TEXAS.

SECTION 12 OF THE MISSING PERSONS ACT, AS AMENDED BY PUBLIC LAW 85 217, AUGUST 29, 1957, 50 U.S.C. APP. 1012, IS IN PERTINENT PART AS FOLLOWS:

"THE DEPENDENTS AND HOUSEHOLD AND PERSONAL EFFECTS OF ANY PERSON IN ACTIVE SERVICE (WITHOUT REGARD TO PAY GRADE) WHO IS OFFICIALLY REPORTED AS DEAD, INJURED, MISSING FOR A PERIOD OF THIRTY DAYS OR MORE, INTERNED IN A FOREIGN COUNTRY, OR CAPTURED BY A HOSTILE FORCE, MAY BE MOVED (INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE, AND UNPACKING OF HOUSEHOLD AND PERSONAL EFFECTS) TO THE OFFICIAL RESIDENCE OF RECORD FOR ANY SUCH PERSON OR TO THE RESIDENCE OF HIS DEPENDENT, NEXT OF KIN, OR OTHER PERSON ENTITLED TO RECEIVE CUSTODY OF THE EFFECTS IN ACCORDANCE WITH REGULATIONS ISSUED BY THE HEAD OF THE DEPARTMENT CONCERNED; OR, UPON APPLICATION BY SUCH DEPENDENT, NEXT OF KIN, OR OTHER PERSON, OR UPON THE PERSON'S APPLICATION IF INJURED, TO SUCH OTHER LOCATION AS MAY BE DETERMINED IN ADVANCE OR SUBSEQUENTLY APPROVED BY THE HEAD OF THE DEPARTMENT CONCERNED OR BY SUCH PERSON AS HE MAY DESIGNATE. * * * WHEN THE PERSON IS IN AN ,INJURED" STATUS, THE MOVEMENT OF DEPENDENTS OR HOUSEHOLD AND PERSONAL EFFECTS PROVIDED FOR HEREIN MAY BE AUTHORIZED ONLY IN CASES WHERE THE ANTICIPATED PERIOD OF HOSPITALIZATION OR TREATMENT WILL BE OF PROLONGED DURATION. NO TRANSPORTATION SHALL BE AUTHORIZED PURSUANT TO THIS SECTION UPON APPLICATION BY DEPENDENTS UNLESS A REASONABLE RELATIONSHIP EXISTS BETWEEN THE CONDITION AND CIRCUMSTANCES OF THE DEPENDENTS AND THE DESTINATION TO WHICH TRANSPORTATION IS REQUESTED. BEGINNING JUNE 25, 1950, AND FOR THE PURPOSES OF THIS SECTION ONLY, THE TERMS ,HOUSEHOLD AND PERSONAL EFFECTS" AND "HOUSEHOLD EFFECTS" MAY INCLUDE, IN ADDITION TO OTHER AUTHORIZED WEIGHT ALLOWANCES, NOT TO EXCEED ONE PRIVATELY OWNED MOTOR VEHICLE, SHIPMENT OF WHICH AT GOVERNMENT EXPENSE IS AUTHORIZED IN THOSE CASES WHERE THE VEHICLE IS LOCATED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA.'

IT IS CLEAR THAT THE PROVISIONS OF THIS SECTION ARE LIMITED IN APPLICATION TO THOSE INSTANCES WHEN A PERSON IN THE ACTIVE SERVICE IS OFFICIALLY REPORTED AS DEAD, INJURED, MISSING FOR A PERIOD OF THIRTY DAYS OR MORE, INTERNED IN A FOREIGN COUNTRY, OR CAPTURED BY A HOSTILE FORCE.

OUR FILE DOES NOT SHOW THAT YOU WERE OFFICIALLY REPORTED AS BEING IN ONE OF THE ABOVE-SPECIFIED CLASSIFICATIONS. FURTHER, WE HAVE BEEN INFORMALLY ADVISED BY THE OFFICE OF THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, THAT THE ILLNESS FOR WHICH YOU RECEIVED TREATMENT AT FITZSIMONS GENERAL HOSPITAL DID NOT INVOLVE AN "INJURY" BUT WAS A RESPIRATORY CONDITION OF A PLEURITIC NATURE. ACCORDINGLY, UNDER THE CIRCUMSTANCES HERE PRESENT THE ABOVE SECTION OF THE MISSING PERSONS ACT DOES NOT PROVIDE AUTHORIZATION FOR REIMBURSEMENT OF THE CHARGES INCURRED IN THE TRANSPORTATION OF YOUR AUTOMOBILE FROM THE PORT OF DEBARKATION, BROOKLYN, NEW YORK, TO YOUR DEPENDENTS' PLACE OF RESIDENCE IN MAUSTON, WISCONSIN. CHAPTER 8, JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), PROVIDING AUTHORIZATION FOR TRANSPORTATION OF HOUSEHOLD AND PERSONAL EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES AT PUBLIC EXPENSE, SPECIFICALLY EXCLUDES AUTOMOBILES FROM THOSE ITEMS THAT MAY BE SHIPPED BY MILITARY PERSONNEL AS HOUSEHOLD GOODS. THAT RESTRICTION IS REQUIRED IN VIEW OF THE PROVISIONS OF SECTION 209 OF THE ACT OF JUNE 30, 1932, 47 STAT. 405, AS AMENDED, 5 U.S.C. 73C, THAT, WITH THE EXCEPTION OF CERTAINSHIPMENTS AUTHORIZED ABOARD GOVERNMENT-OWNED VESSELS FOR PERSONNEL OF THE AIR FORCE AND ARMY, OR WHERE AUTHORIZED UNDER OTHER SPECIFIC STATUTORY PROVISIONS,"NO LAW OR REGULATION AUTHORIZING OR PERMITTING THE TRANSPORTATION AT GOVERNMENT EXPENSE OF THE EFFECTS OF OFFICERS, EMPLOYEES, OR OTHER PERSONS, SHALL BE CONSTRUED OR APPLIED AS INCLUDING OR AUTHORIZING THE TRANSPORTATION OF AN AUTOMOBILE.' THERE IS, THEREFORE, NO LEGAL BASIS UPON WHICH YOUR CLAIM MAY BE ALLOWED AND THE SETTLEMENT OF NOVEMBER 6, 1961, WAS CORRECT AND IS SUSTAINED.

WITH REFERENCE TO YOUR INQUIRY CONCERNING YOUR RIGHT TO APPEAL THE DISAPPROVAL OF YOUR CLAIM, YOU ARE ADVISED THAT THE LAW MAKES NO PROVISION FOR APPEAL FROM THE DECISIONS OF THIS OFFICE. A SUIT MAY BE FILED, HOWEVER, IN THE COURT OF CLAIMS OF THE UNITED STATES.