B-164330, OCT. 30, 1968

B-164330, OCT. 30, 1968

TO STAFF SERGEANT RUSSELL J. GIROIR:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 2, 1968, TO THE AIR FORCE PROTESTING THE CHARGE MADE AGAINST YOU OF $42.35 FOR THE COST OF TRANSPORTATION FURNISHED ON A TRANSPORTATION REQUEST. THE TRANSPORTATION REQUEST WAS FURNISHED FOR YOUR TRAVEL FROM TRAVIS AIR FORCE BASE, CALIFORNIA, TO MCCHORD AIR FORCE BASE, WASHINGTON, IN DECEMBER 1967, INCIDENT TO YOUR RETURN TO TAIPEI, TAIWAN, FROM EMERGENCY LEAVE.

THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, FORWARDED YOUR PROTEST HERE FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236, AND THE PAPERS INCLUDE YOUR CLAIM FOR RELATED MISCELLANEOUS TRAVEL EXPENSES INCURRED DURING THE PERIOD DECEMBER 17 TO 22, 1967.

BY SPECIAL ORDER T-1073, DATED DECEMBER 10, 1967, YOU WERE PERMITTED TO PROCEED ON OR ABOUT DECEMBER 10, 1967, FROM TAIPEI, TAIWAN, TO TRAVIS AIR FORCE BASE, CALIFORNIA, ON TEMPORARY DUTY FOR 30 DAYS' EMERGENCY LEAVE. THE ORDERS DIRECTED YOU TO REPORT UPON ARRIVAL TO THE MAC PASSENGER SERVICE COUNTER AT TRAVIS AIR FORCE BASE TO ESTABLISH RETURN FLIGHT RESERVATIONS, AND UPON COMPLETION OF LEAVE TO RETURN TO THAT BASE FOR TRANSPORTATION AT WHICH TIME YOU WOULD REVERT TO A TEMPORARY DUTY STATUS.

THE ORDERS STATED THAT THE TRAVEL AUTHORIZED THEREIN DID NOT ENTITLE YOU TO EXPENSES OF TRAVEL, AND PROVIDED THAT TRAVEL WAS AUTHORIZED BY MILITARY AIRCRAFT ONLY. YOUR LEAVE ADDRESS WAS SHOWN AS AT PAINCOURTVILLE, LOUISIANA. YOUR ITINERARY SHOWS YOU DID NOT ENTER THE CONTINENTAL UNITED STATES AT TRAVIS AIR FORCE BASE BUT WERE FLOWN DIRECTLY TO KELLY AIR FORCE BASE, SAN ANTONIO, TEXAS, VIA ELMENDORF AIR BASE, ALASKA.

YOU SAY THAT UPON COMPLETION OF YOUR EMERGENCY LEAVE YOU RETURNED TO TRAVIS AIR FORCE BASE, THAT YOU PROCEEDED TO MAKE A BOOKING ON A RETURN FLIGHT TO TAIPEI, AND WERE ADVISED THERE WERE NO MORE FLIGHTS FROM TRAVIS AIR FORCE BASE TO TAIPEI. YOU SAY YOU WERE ADVISED TO GET A TRANSPORTATION REQUEST FOR TRAVEL TO MCCHORD AIR FORCE BASE AND GET A FLIGHT FROM THERE TO TAIPEI.

YOU WERE ISSUED A TRANSPORTATION REQUEST ON DECEMBER 17, 1967, AND USED IT TO TRAVEL BY COMMERCIAL AIR FROM TRAVIS AIR FORCE BASE TO MCCHORD AIR FORCE BASE AT A COST TO THE GOVERNMENT OF $42.35. A PAY ADJUSTMENT AUTHORIZATION, DATED JANUARY 21, 1968, WAS ISSUED FOR THE PURPOSE OF COLLECTING THAT AMOUNT FROM YOUR PAY. THE AUTHORIZATION STATES THAT YOU WERE ON EMERGENCY LEAVE AND WERE ISSUED THE TRANSPORTATION REQUEST IN ERROR.

IT IS YOUR CONTENTION THAT YOU REVERTED TO A TEMPORARY DUTY STATUS WHEN YOU RETURNED TO TRAVIS AIR FORCE BASE UPON THE COMPLETION OF YOUR LEAVE AND THEREFORE WERE NOT ON LEAVE WHEN THE TRANSPORTATION REQUEST WAS ISSUED. IN SUPPORT OF THAT CONTENTION YOU HAVE FURNISHED A COPY OF YOUR ORDERS BEARING A STAMP WHICH SHOWS YOU ARRIVED AT TRAVIS AIR FORCE BASE ON DECEMBER 17, 1967, THE DATE ON WHICH THE TRANSPORTATION REQUEST WAS ISSUED. ALSO, YOU CONTEND THAT SINCE THE ERROR WAS NOT MADE BY YOU BUT BY PERSONNEL AT TRAVIS AIR FORCE BASE YOU SHOULD NOT BE REQUIRED TO PAY FOR THE TRANSPORTATION.

IT LONG HAS BEEN HELD THAT TO AUTHORIZE PAYMENT FOR TRAVEL OF MEMBERS OF THE UNIFORMED SERVICES THE TRAVEL MUST BE PERFORMED ON PUBLIC BUSINESS SINCE PUBLIC BUSINESS IS THE FOUNDATION ON WHICH THE RIGHT TO TRAVEL ALLOWANCES RESTS. PERRIMOND V UNITED STATES, 19 CT. CL. 509; DAY V UNITED STATES, 123 CT. CL. 10, 18; 36 COMP. GEN. 257. CONSISTENT WITH THAT CONCEPT PARAGRAPH M3050-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE TRAVELING AWAY FROM THEIR PERMANENT DUTY STATIONS "UPON PUBLIC BUSINESS.' THEREFORE, IT CONSISTENTLY HAS BEEN HELD THAT THE EXPENSES OF TRAVEL FOR PERSONAL REASONS WHILE IN A LEAVE STATUS ARE NOT REIMBURSABLE. 26 COMP. GEN. 40; 31 ID. 156, AND 37 ID. 632.

PARAGRAPH M6455 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT PERSONNEL ATTACHED TO ACTIVITIES BEYOND THE CONTINENTAL UNITED STATES SHOULD MAKE DEFINITE PLANS, BEFORE THEY REQUEST LEAVE, AS TO WHEN AND HOW THEY CAN RETURN AT THE EXPIRATION OF THE LEAVE. IT FURTHER PROVIDES THAT THE GOVERNMENT CANNOT GUARANTEE RETURN TRANSPORTATION BY GOVERNMENT CONVEYANCE AND WILL NOT AUTHORIZE TRANSPORTATION BY COMMERCIAL CONVEYANCES AT GOVERNMENT EXPENSE.

PARAGRAPH 2-44, AIR FORCE MANUAL 10-3, PROVIDES THAT EMERGENCY LEAVE ORDERS THAT AUTHORIZE TRAVEL BY MILITARY AIRLIFT COMMAND AIRCRAFT ON A SPACE REQUIRED BASIS TO AND FROM THE CONTINENTAL UNITED STATES WILL INCLUDE A STATEMENT PERMITTING THE MEMBER TO PROCEED ON TEMPORARY DUTY FROM STATION TO WHICH ASSIGNED "TO APPROPRIATE AERIAL PORT OF EMBARKATION FOR TRANSPORTATION TO APPROPRIATE AERIAL PORT OF DEBARKATION.' IT ALSO REQUIRES STATEMENTS IN THE ORDERS THAT TRAVEL AUTHORIZED BY THE ORDER DOES NOT ENTITLE MEMBER TO EXPENSES OF TRAVEL AND THAT TRAVEL IS AUTHORIZED BY MILITARY AIRCRAFT ONLY. IT FURTHER SPECIFICALLY PROVIDES THAT "ALL TRAVEL WITHIN CONUS IS CHARGEABLE AS LEAVE.'

WHILE YOUR ORDERS PLACED YOU ON TEMPORARY DUTY DURING THE PERIODS OF TRAVEL FROM YOUR OVERSEAS STATION TO THE PORT OF DEBARKATION IN THE UNITED STATES AND FROM THE PORT OF EMBARKATION TO YOUR STATION, THIS WAS DONE SO THAT THE TIME SPENT IN TRAVEL TO AND FROM THE UNITED STATES WOULD NOT BE CHARGED TO YOUR LEAVE. TRAVEL WITHIN THE UNITED STATES WAS CHARGEABLE TO LEAVE. NOTHING IS FOUND IN YOUR ORDERS INDICATING THAT COSTS INCIDENT TO TRAVEL IN THE UNITED STATES WOULD NOT BE BORNE BY YOU. ON THE CONTRARY, THE ORDERS SPECIFICALLY PROVIDED THAT "TRAVEL AUTHORIZED BY THIS ORDER DOES NOT ENTITLE TRAVELER TO EXPENSES OF TRAVEL" AND THAT TRAVEL WAS AUTHORIZED BY MILITARY AIRCRAFT ONLY, AS REQUIRED BY AIR FORCE MANUAL 10- 3.

THEREFORE, WHILE IT APPEARS THAT THE TRANSPORTATION REQUEST WAS ISSUED WHEN YOU RETURNED TO TRAVIS AIR FORCE BASE, THE TRAVEL PERFORMED FROM THAT BASE TO MCCHORD AIR FORCE BASE FOR THE PURPOSE OF ENABLING YOU TO OBTAIN GOVERNMENT TRANSPORTATION FOR THE RETURN TRIP MUST BE REGARDED AS TRAVEL ON LEAVE. UNDER THE REGULATIONS, OBTAINING RETURN TRANSPORTATION WAS YOUR RESPONSIBILITY. THERE WAS NO GUARANTEE THAT RETURN TRANSPORTATION WOULD BE FURNISHED FROM TRAVIS AIR FORCE BASE. THAT WAS MERELY THE PLACE WHERE YOU WERE TO REPORT TO MAKE ARRANGEMENTS FOR TRANSPORTATION.

THUS, IT SEEMS CLEAR THAT YOU WERE FURNISHED COMMERCIAL TRANSPORTATION FOR TRAVEL WHICH, UNDER THE LAW, YOU WERE NOT ENTITLED TO PERFORM AT GOVERNMENT EXPENSE. THE FACT THAT THE TRANSPORTATION WAS FURNISHEDAS A RESULT OF ERROR BY PERSONNEL AT TRAVIS AIR FORCE BASE DOES NOT RELIEVE YOU OF THE RESPONSIBILITY OF PAYING FOR IT.

IT IS WELL SETTLED THAT PERSONS RECEIVING ERRONEOUS PAYMENTS FROM THE GOVERNMENT ACQUIRE NO RIGHT TO SUCH PAYMENTS AND THE COURTS HAVE CONSISTENTLY HELD THAT SUCH PERSONS ARE BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION. IN UNITED STATES V NORTHWESTERN NATIONAL BANK AND TRUST COMPANY OF MINNEAPOLIS, 35 F.SUPP. 484, 486, THE COURT STATED THAT THE RECIPIENT OF AN ERRONEOUS PAYMENT RESULTING FROM A MISTAKE BY A PUBLIC OFFICIAL, MUST IN EQUITY MAKE RESTITUTION, SINCE RESTITUTION RESULTS IN NO LOSS TO HIM, HE HAVING RECEIVED SOMETHING FOR NOTHING. WISCONSIN CENTRAL RAILROAD V UNITED STATES, 164 U.S. 190, IT WAS HELD THAT PERSONS WHO RECEIVE ERRONEOUS PAYMENTS FROM THE UNITED STATES THROUGH ADMINISTRATIVE ERROR OF ITS OFFICERS, ARE BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION.

EVEN FINANCIAL HARDSHIP WHICH MIGHT RESULT FROM COLLECTION FROM THE RECIPIENT OR THE FACT THAT PAYMENT MAY HAVE BEEN RECEIVED IN GOOD FAITH "CANNOT STAND AGAINST THE INJUSTICE OF KEEPING WHAT NEVER RIGHTFULLY BELONGED TO HIM AT ALL.' UNITED STATES V BENTLEY, 107 E.2D, 382, 384. HENCE, THE LAW LEAVES NO CHOICE BUT TO REQUIRE YOU TO REPAY THE COST OF COMMERCIAL AIR TRANSPORTATION FROM TRAVIS AIR FORCE BASE TO MCCHORD AIR FORCE BASE.

ACCORDINGLY, THE AIR FORCE PROPERLY CHARGED YOU FOR THE COST OF THE TRANSPORTATION ERRONEOUSLY FURNISHED.

THE MISCELLANEOUS TRAVEL EXPENSES CLAIMED CONSIST OF BUS FARE FROM TRAVIS AIR FORCE BASE TO SAN FRANCISCO AIRPORT, AND TAXI FARES FROM SEATTLE- TACOMA INTERNATIONAL AIRPORT TO MCCHORD AIR FORCE BASE AND FROM SHUNG SHAN AIRPORT TO YOUR RESIDENCE IN TAIPEI. SINCE REIMBURSEMENT FOR TRAVEL EXPENSES SPECIFICALLY WAS NOT AUTHORIZED THERE IS NO BASIS FOR PAYMENT OF THE MISCELLANEOUS TRAVEL EXPENSES CLAIMED. ACCORDINGLY, THAT CLAIM IS DISALLOWED.

ALTHOUGH YOU DO NOT HAVE A CLAIM AGAINST THE UNITED STATES FOR $42.35 SINCE YOU HAVE NOT AS YET PAID THE CHARGE, YOU ARE ADVISED THAT THE MERITORIOUS CLAIMS ACT OF 1928 PROVIDES THAT WHEN A CLAIM IS FILED IN THIS OFFICE THAT MAY NOT BE LAWFULLY ADJUSTED BY USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM, IN OUR JUDGMENT CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF CONGRESS, IT SHALL BE SUBMITTED TO THE CONGRESS WITH OUR RECOMMENDATIONS. THE REMEDY IS AN EXTRAORDINARY ONE AND ITS USE IS LIMITED TO EXTRAORDINARY CIRCUMSTANCES.

THE CASES WE HAVE REPORTED FOR THE CONSIDERATION OF THE CONGRESS GENERALLY HAVE INVOLVED EQUITABLE CIRCUMSTANCES OF AN UNUSUAL NATURE AND WHICH ARE UNLIKELY TO CONSTITUTE A RECURRING PROBLEM SINCE TO REPORT TO THE CONGRESS A PARTICULAR CASE WHEN SIMILAR EQUITIES EXIST OR ARE LIKELY TO ARISE WITH RESPECT TO OTHER CLAIMANTS WOULD CONSTITUTE PREFERENTIAL TREATMENT OVER OTHERS IN SIMILAR CIRCUMSTANCES.

EVEN IF YOU PERFECTED YOUR CLAIM BY PAYMENT OF THE CHARGE, WE FIND NO BASIS FOR CONSIDERING YOUR CASE AS CONTAINING ELEMENTS OF EQUITY OF AN UNUSUAL NATURE. THERE ARE NUMEROUS CASES IN WHICH MEMBERS THROUGH ADMINISTRATIVE ERROR ARE FURNISHED TRANSPORTATION TO WHICH THEY ARE NOT ENTITLED AND ARE REQUIRED TO PAY FOR IT. WE WOULD NOT REGARD YOUR CASE AS CONTAINING SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD WARRANT REPORTING IT TO THE CONGRESS FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF 1928.