B-165761, FEB. 13, 1969

B-165761, FEB. 13, 1969

TO MRS. MARIE A. SCHUSTER:

FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES INCIDENT TO MOVEMENT OF A PRIVATELY OWNED AUTOMOBILE FROM TUCSON, ARIZONA, TO WILMINGTON, DELAWARE, UPON THE DEATH OF YOUR HUSBAND, MASTER SERGEANT STEPHEN R. SCHUSTER, AF 3311 8625, WHILE IN THE MILITARY SERVICE.

YOUR HUSBAND DIED AT U.S. AIR FORCE HOSPITAL, DAVIS-MONTHAN AIR FORCE BASE, ARIZONA, ON JULY 12, 1966. HIS DEATH WAS REPORTED AS "NON BATTLE" RESULTING FROM A DISEASE. AT THE TIME OF DEATH, YOU, YOUR SON AND THE FAMILY AUTOMOBILE WERE NEARBY IN TUCSON, ARIZONA.

BY SPECIAL ORDER T-1647, DATED JULY 13, 1966, YOU AND YOUR SON WERE AUTHORIZED TO PROCEED FROM DAVIS-MONTHAN AIR FORCE BASE, ARIZONA, TO WILMINGTON, DELAWARE. THE ORDERS ALSO AUTHORIZED SHIPMENT OF HOUSEHOLD EFFECTS BUT DID NOT AUTHORIZE SHIPMENT OF AN AUTOMOBILE. ON JULY 14, 1966, YOU ARRANGED TO HAVE THE AUTOMOBILE DRIVEN FROM TUCSON TO WILMINGTON AT A COST TO YOU OF $125. THE CAR WAS DELIVERED TO WILMINGTON ON JULY 21, 1966. TO WILMINGTON ON JULY 21, 1966.

YOUR CLAIM FOR REIMBURSEMENT WAS FORWARDED BY THE AIR FORCE ACCOUNTING AND FINANCE CENTER TO OUR CLAIMS DIVISION FOR SETTLEMENT. THE CENTER RECOMMENDED CONSIDERATION OF THE CLAIM UNDER THE PROVISIONS OF THE MISSING PERSONS ACT WHICH, IN JULY 1966, WERE CONTAINED IN 50 U.S.C. APP. 1001- 1018; ALSO, THAT WE CONSIDER IT UNDER THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 45 STAT. 413, 37 U.S.C. 236.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT OF OUR CLAIMS DIVISION DATED NOVEMBER 20, 1967, FOR THE REASON STATED THEREIN. BY LETTER DATED NOVEMBER 18, 1966 (1968), THE AIR FORCE ACCOUNTING AND FINANCE CENTER REQUESTED THAT, IF SETTLEMENT OF THE CLAIM HAD NOT BEEN MADE, CONSIDERATION BE GIVEN IT UNDER OUR DECISION B-163823, OF APRIL 29, 1968. THAT REQUEST APPARENTLY IS BASED ON THE BELIEF THAT YOUR CLAIM IS SIMILAR TO THE CLAIM CONSIDERED IN THAT DECISION.

IN THE DECISION OF APRIL 29, 1968, THE MEMBER WAS REPORTED MISSING IN ACTION ON OCTOBER 22, 1967, WHILE ON A COMBAT MISSION OVER VIETNAM. HAD LEFT HIS AUTOMOBILE IN STORAGE IN SAN FRANCISCO, CALIFORNIA, UPON HAD LEFT HIS AUTOMOBILE IN STORAGE IN SAN FRANCISCO, CALIFORNIA, UPON DEPARTING THE UNITED STATES FOR DUTY OVERSEAS. HIS FATHER, UPON RECEIPT OF AN OFFICIAL NOTICE THAT HIS SON WAS MISSING, TRAVELED FROM MANCHESTER, VERMONT, TO SAN FRANCISCO, CALIFORNIA, AND DROVE HIS SON'S AUTOMOBILE TO HIS HOME IN VERMONT FOR SAFEKEEPING PENDING FINAL DETERMINATION OF HIS SON'S STATUS.

AT THAT TIME THE PROVISIONS OF THE MISSING PERSONS ACT, CITED ABOVE, HAD BEEN REPEALED AND NEW PROVISIONS WERE CONTAINED IN 37 U.S.C. 551 558. SINCE THE MEMBER WAS IN A MISSING STATUS HIS PAY AND ALLOWANCES WERE AS PROVIDED IN 37 U.S.C. 552 AND SHIPMENT OF HIS AUTOMOBILE BY THE GOVERNMENT, INCLUDING OVERLAND SHIPMENT WAS AUTHORIZED BY 37 U.S.C. 554. SINCE THAT LAW DOES NOT PROVIDE FOR REIMBURSEMENT WHERE AN AUTOMOBILE IS MOVED AT PERSONAL EXPENSE, THE CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION.

UNDER THAT STATUTORY AUTHORITY, HOWEVER, SHIPMENT OF THE AUTOMOBILE COULD HAVE BEEN REQUESTED AND PRESUMABLY WOULD HAVE BEEN PROVIDED BY THE GOVERNMENT PURSUANT TO PARAGRAPH M11005 OF THE JOINT TRAVEL REGULATIONS. SHIPMENT BY THE GOVERNMENT WOULD HAVE BEEN AT A COST CONSIDERABLY IN EXCESS OF THE AMOUNT OF THE CLAIM. UNDER THOSE CIRCUMSTANCES WE REPORTED THE CLAIM TO THE CONGRESS FOR CONSIDERATION AS A MERITORIOUS CLAIM UNDER THE ACT OF APRIL 10, 1928. THIS IS THE TYPE OF ACTION THE AIR FORCE HAS SUGGESTED IN YOUR CASE.

SECTION 406 (F) OF TITLE 37, U.S. CODE, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, TRANSPORTATION FOR DEPENDENTS, BAGGAGE AND HOUSEHOLD EFFECTS OF A MEMBER IS AUTHORIZED IF HE DIES WHILE ENTITLED TO BASIC PAY UNDER CHAPTER 3 OF THAT TITLE. AT THE TIME OF HIS DEATH YOUR HUSBAND WAS ENTITLED TO BASIC PAY UNDER THAT CHAPTER. SECTION 406 (F), HOWEVER, DOES NOT PROVIDE FOR TRANSPORTATION OF A MEMBER'S AUTOMOBILE UPON HIS DEATH AND THE AIR FORCE DID NOT AUTHORIZE SHIPMENT OF YOUR HUSBAND'S AUTOMOBILE. WHILE THE AIR FORCE SUBSEQUENTLY RECOMMENDED THAT YOUR CLAIM BE CONSIDERED UNDER THE MISSING PERSONS ACT, THAT ACT DOES NOT PROVIDE FOR REIMBURSEMENT WHEN THE AUTOMOBILE IS MOVED AT PERSONAL EXPENSE UPON THE MEMBER'S DEATH.

SINCE THERE IS NO BASIS FOR PAYMENT OF YOUR CLAIM UNDER EITHER SECTION 554 OR SECTION 406 (F), TITLE 37, THE SETTLEMENT OF NOVEMBER 20, 1967, IS SUSTAINED.

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 THE 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 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.

THE RECORD INDICATES THAT ON JULY 18, 1966, WHILE THE CAR WAS BEING DRIVEN TO WILMINGTON, YOU AND YOUR SON TRAVELED BY AIR FROM TUCSON TO WILMINGTON AND IT IS ASSUMED THE GOVERNMENT PROVIDED SUCH TRANSPORTATION OR PAID YOU A MONETARY ALLOWANCE FOR THE DISTANCE INVOLVED. THUS, YOU AND YOUR SON APPARENTLY COULD HAVE TRAVELED BY AUTOMOBILE INCIDENT TO ITS MOVEMENT TO WILMINGTON AND BEEN PAID A MONETARY ALLOWANCE OF 9 CENTS A MILE FOR SUCH DISTANCE. IT IS NOT UNUSUAL FOR A MEMBER TO DIE AT HIS DUTY STATION IN THE UNITED STATES FOLLOWING WHICH HIS DEPENDENTS TRAVEL IN THE FAMILY CAR FROM SUCH STATION TO AN AUTHORIZED LOCATION AND RECEIVE THE PRESCRIBED MONETARY ALLOWANCE FOR SUCH TRAVEL.

FOR THE ABOVE REASONS WE FIND NO BASIS FOR CONSIDERING YOUR CLAIM AS CONTAINING ELEMENTS OF EQUITY OF AN UNUSUAL NATURE. CONSEQUENTLY, WE DO 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.