B-150692, MAR. 11, 1963

B-150692, MAR. 11, 1963

TO MRS. DORIS M. FOREMAN:

REFERENCE IS MADE TO YOUR CLAIM FOR REIMBURSEMENT OF THE EXPENSES INCURRED IN THE SHIPMENT OF YOUR HOUSEHOLD GOODS AND THE TRAVEL OF YOUR FAMILY AS DEPENDENTS OF LONNIE Z. FOREMAN, STAFF SERGEANT, UNITED STATES AIR FORCE RESERVE, SUBSEQUENT TO HIS DEATH, NOVEMBER 23, 1961.

THE RECORD SHOWS THAT BY RESERVE ORDER NO. 330, DATED OCTOBER 25, 1961, HEADQUARTERS 446TH TROOP CARRIER WING, MEDIUM (RES) (CONAC), ELLINGTON AIR FORCE BASE, TEXAS, YOUR HUSBAND WAS ORDERED TO A SHORT TOUR OF ACTIVE DUTY FOR A PERIOD OF 14 DAYS, EFFECTIVE NOVEMBER 13, 1961, AND WAS DIRECTED TO REPORT AT ELLINGTON AIR FORCE BASE, FOR TRANSPORTATION TO HIS DUTY STATION, ELMENDORF AIR FORCE BASE, ALASKA. A REPORT OF CASUALTY DATED NOVEMBER 28, 1961, SHOWS THAT HE DIED NOVEMBER 23, 1961, AS A RESULT OF A MILITARY AVIATION ACCIDENT AND WAS IN A MISSING STATUS WITHIN THE CONTEMPLATION OF THE MISSING PERSONS ACT, AS AMENDED, 50 U.S.C. APP. 1001- 1017, FROM NOVEMBER 23 TO 26, 1961.

BY LETTER OF APRIL 23, 1962, THE COMMANDING OFFICER OF YOUR HUSBAND'S UNIT TRANSMITTED YOUR REQUEST FOR TRANSPORTATION OF YOUR HOUSEHOLD GOODS FROM GENOA, TEXAS, TO DENTON, TEXAS, FOR APPROVAL AND ON MAY 25, 1962, HEADQUARTERS, UNITED STATES AIR FORCE, WASHINGTON, D.C., DISAPPROVED THE REQUEST ON THE BASIS THAT THE MEMBER WAS IN FACT CALLED TO DUTY FOR THE PURPOSE OF PARTICIPATING IN A TRAINING EXERCISE, AND IN VIEW OF THE DECISION OF OUR OFFICE, B-145471, FEBRUARY 16, 1962 (41 COMP. GEN. 544), THERE WAS NO AUTHORITY FOR THE MOVEMENT OF DEPENDENTS AND HOUSEHOLD GOODS UNDER SUCH CIRCUMSTANCES. SUBSEQUENTLY, IN ORDER THAT SERGEANT FOREMAN'S ORDERS WOULD PROPERLY SHOW THE TYPE OF DUTY THAT HE IN FACT WAS DIRECTED TO PERFORM, RESERVE ORDER NO. 330 WAS AMENDED BY RESERVE ORDER NO. D-1123, DATED DECEMBER 4, 1962, TO SHOW THAT THE MEMBER WAS CALLED TO A SHORT TOUR OF ACTIVE DUTY FOR TRAINING.

ON MAY 30, 1962, AFTER HAVING BEEN ADVISED BY AIR FORCE OFFICIALS THAT MOVEMENT OF YOUR HOUSEHOLD EFFECTS AND TRANSPORTATION FOR YOURSELF AND CHILDREN COULD NOT BE AUTHORIZED AT GOVERNMENT EXPENSE, YOU SHIPPED YOUR HOUSEHOLD GOODS BY COMMERCIAL VAN FROM YOUR HOME IN GENOA, TEXAS, TO DENTON, TEXAS, AND YOU TRAVELED WITH YOUR CHILDREN BY PRIVATELY OWNED CONVEYANCE TO DENTON, ARRIVING MAY 31, 1962. SUBSEQUENTLY, YOU FILED A CLAIM FOR REIMBURSEMENT OF EXPENSES IN THE MOVEMENT TO DENTON, TEXAS, AND BY LETTER DATED JANUARY 2, 1963, THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, TRANSMITTED YOUR CLAIM TO OUR OFFICE FOR SETTLEMENT ACKNOWLEDGING THAT PAYMENT IS NOT AUTHORIZED UNDER THE APPLICABLE STATUTE AND REGULATIONS BUT RECOMMENDING THAT IT RECEIVE FAVORABLE CONSIDERATION AS A MERITORIOUS CLAIM UNDER THE PROVISIONS OF 31 U.S.C. 236.

IN THE DECISION OF FEBRUARY 16, 1962, 41 COMP. GEN. 544, WE CONCLUDED THAT NEITHER THE PROVISIONS OF SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C) (NOW CODIFIED AS 37 U.S.C. 406), NOR SECTION 12 OF THE MISSING PERSONS ACT, AS AMENDED, 50 U.S.C. APP. 1012, PROVIDE ANY AUTHORITY TO AUTHORIZE THE MOVEMENT OF DEPENDENTS AND HOUSEHOLD GOODS OF MEMBERS WHO DIE WHILE IN A TRAINING DUTY STATUS, FROM THE MEMBER'S HOME OF RECORD TO SOME OTHER PLACE. SINCE THE RECORD SHOWS THAT YOUR HUSBAND WAS IN FACT ORDERED TO A SHORT TOUR OF ACTIVE DUTY FOR TRAINING, NO RIGHT TO TRANSPORTATION OF DEPENDENTS OR HOUSEHOLD GOODS ACCRUED FROM HOME OF RECORD TO SOME OTHER PLACE INCIDENT TO SUCH ASSIGNMENT TO TRAINING DUTY, EITHER UNDER THE PROVISIONS OF 37 U.S.C. 406 OR SECTION 12 OF THE MISSING PERSONS ACT, 50 U.S.C. APP. 1012, AND THE DEPARTMENT OF THE AIR FORCE PROPERLY DENIED YOUR REQUEST FOR YOUR MOVEMENT FROM GENOA TO DENTON, TEXAS, AT GOVERNMENT EXPENSE. FOR THE SAME REASON, WE HAVE NO ALTERNATIVE OTHER THAN TO DISALLOW YOUR CLAIM.

THE MERITORIOUS CLAIMS ACT, 31 U.S.C. 236, 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.'

FOR THE REASONS STATED ABOVE, THERE IS NO LEGAL LIABILITY ON THE PART OF THE GOVERNMENT FOR THE PAYMENT OF YOUR CLAIM. WITH REGARD TO THE POSSIBLE ELEMENTS OF EQUITY IN YOUR CASE, IT APPEARS FROM THE RECORD THAT WHEN YOU FILED AN APPLICATION FOR THE MOVEMENT OF YOUR HOUSEHOLD EFFECTS BY THE GOVERNMENT, CERTAIN AIR FORCE PERSONNEL MAY HAVE ERRONEOUSLY INDICATED THAT THE APPLICATION WOULD BE APPROVED. IT IS WELL ESTABLISHED, HOWEVER, THAT, IN THE ABSENCE OF A STATUTE SO PROVIDING, THE GOVERNMENT IS NOT LIABLE FOR THE NEGLIGENT ACTS OF ITS OFFICERS OR EMPLOYEES EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. 19 COMP. GEN. 503; GERMAN BANK V. UNITED STATES, 148 U.S. 573. AND, AS WE HAVE STATED, THE RECORDS SHOW THAT BEFORE YOU MADE THE SHIPMENT AND PERFORMED THE TRAVEL IT WAS EXPLAINED TO YOU BY AN AIR FORCE OFFICER THAT THERE WAS NO AUTHORITY FOR SUCH MOVEMENT AT GOVERNMENT EXPENSE. THUS YOU WERE IN THE SAME CIRCUMSTANCES WITH RESPECT TO YOUR TRAVEL AND THE MOVEMENT OF YOUR HOUSEHOLD EFFECTS AS THE DEPENDENTS OF OTHER MEMBERS WHO HAVE DIED WHILE ON ACTIVE DUTY FOR TRAINING AND WHOSE CLAIMS CONSISTENTLY HAVE BEEN DISALLOWED. TO ACCORD YOUR CLAIM PREFERENTIAL TREATMENT WOULD BE INEQUITABLE FROM THE STANDPOINT OF THE OTHER DEPENDENTS. THEREFORE IT IS OUR VIEW THAT YOUR CLAIM DOES NOT CONTAIN THE ELEMENTS OF LEGAL LIABILITY OR EQUITY CONTEMPLATED BY THE STATUTE SO AS TO WARRANT REPORTING THE MATTER FOR THE CONSIDERATION OF THE CONGRESS. WE TRUST YOU WILL UNDERSTAND THAT IT IS FOR SUCH REASONS AND NOT FROM ANY LACK OF SYMPATHY IN YOUR CASE THAT WE MAY NOT REPORT YOUR CLAIM TO THE CONGRESS FOR ITS CONSIDERATION.