B-167330, JUL. 17, 1969

B-167330, JUL. 17, 1969

MILITARY - TRANSPORTATION - NONDEPENDENTS DECISION SUSTAINING DISALLOWANCE OF CLAIM OF AIR FORCE MEMBER WHOSE DIVORCED DAUGHTER AND HER TWO CHILDREN WERE ERRONEOUSLY FURNISHED TRANSPORTATION ON COMMERCIAL AIRLINE ALONG WITH MEMBER'S WIFE AND MINOR SON ON RETURN FROM JAPAN. SINCE THREE PERSONS WERE NONDEPENDENTS UNDER 37 U.S.C. 406 (E) THERE IS NO BASIS FOR PAYMENT.

TO CWO-4 ALLAN A. SAMSON, USAF (RET.):

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 17, 1969, REQUESTING REVIEW OF THE SETTLEMENT OF MAY 13, 1969, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE AMOUNT COLLECTED FROM YOU FOR TRANSPORTATION FURNISHED YOUR DAUGHTER AND HER TWO CHILDREN FROM TACHIKAWA AIR FORCE BASE, JAPAN, TO TRAVIS AIR FORCE BASE, CALIFORNIA, ON JULY 2, 1968. WE ARE ALSO IN RECEIPT OF AN INQUIRY FROM HONORABLE HOWARD H. BAKER, JR., UNITED STATES SENATE, CONCERNING YOUR CLAIM.

IT APPEARS THAT YOUR DEPENDENTS (WIFE AND SON) AND THREE NON DEPENDENT MEMBERS OF YOUR HOUSEHOLD (DIVORCED DAUGHTER, MRS. LINDA L. HOPKINS (AGE 22) AND HER TWO CHILDREN) WERE RESIDING AT MISAWA AIR BASE, JAPAN. YOU SAY THAT YOUR WIFE AND SON CAME TO MISAWA AIR BASE IN JUNE 1967, AND THAT YOUR THEN PREGNANT DAUGHTER AND HER FIRST CHILD JOINED YOU AT YOUR EXPENSE BECAUSE HER HUSBAND HAD DESERTED HER. AS THE RESULT OF AN EARTHQUAKE ON MAY 16, 1968, THE AIR FORCE AUTHORIZED EARLY RETURN OF YOUR FAMILY TO THE UNITED STATES. THE AUTHORIZATION, SPECIAL ORDER T-1265, DATED JUNE 24, 1968, AUTHORIZED YOUR WIFE AND SON TO PROCEED ON OR ABOUT JULY 28, 1968, FROM MISAWA AIR BASE, JAPAN, TO MILAN, TENNESSEE, AND ALSO AUTHORIZED OCEAN TRAVEL ON A "SPACE AVAILABLE ONLY" BASIS FOR LINDA HOPKINS, AND HER TWO CHILDREN, ROBERT HOPKINS AND DEBORAH HOPKINS. THE ORDERS STATED THAT TRAVEL WAS AUTHORIZED BY MILITARY AIRCRAFT, COMMERCIAL AIRCRAFT, SURFACE VESSEL, RAIL OR BUS, AND REQUIRED DEPENDENTS TO OBTAIN A MILITARY TRANSPORTATION AUTHORIZATION FROM THE TRAFFIC MANAGEMENT OFFICE PRIOR TO DEPARTURE.

YOU SAY THAT ON JUNE 27, YOU WERE NOTIFIED THAT YOUR WIFE, SON, DAUGHTER AND GRANDCHILDREN WERE SCHEDULED TO LEAVE TACHIKAWA AIR BASE ON JULY 2, 1968, AND THAT YOU WERE GIVEN A MILITARY TRANSPORTATION AUTHORIZATION FOR YOUR WIFE AND SON ONLY; HOWEVER, ALL FIVE DEPARTED MISAWA ON JUNE 30 AND ARRIVED AT TACHIKAWA AIR BASE ON JULY 1, WHERE YOUR WIFE WAS INFORMED THAT HER FLIGHT, G284, HAD BEEN FORCED DOWN OVER RUSSIAN TERRITORY AND THAT THERE WOULD BE SOME DELAY. YOU SAY THAT AFTER WAITING FOR SOME TIME ALL PASSENGERS (INCLUDING THE FIVE MEMBERS OF YOUR HOUSEHOLD) WERE TRANSPORTED BY BUS TO TOKYO WHERE THEY WERE QUARTERED IN A HOTEL FOR THE NIGHT. JULY 2, 1968, THEY DEPARTED TOKYO INTERNATIONAL AIRPORT BY PAN AMERICAN WORLD AIRWAYS.

THE RECORD SHOWS THAT YOUR WIFE WAS ISSUED MILITARY TRANSPORTATION AUTHORIZATION NO. A4432337 FOR HERSELF AND YOUR SON ON JUNE 28, 1969, BUT THAT NO SUCH AUTHORIZATION WAS ISSUED FOR THE THREE NON-DEPENDENTS PRIOR TO THE FLIGHT ALTHOUGH ALL WERE FURNISHED CATEGORY "A" TRANSPORTATION ON THE SAME COMMERCIAL PLANE. IN THIS REGARD THE RECORD SHOWS THAT BY LETTER OF JULY 10, 1968, THE COMMANDER, DETACHMENT 6, 61ST MILITARY AIRLIFT WING (MAC) ADVISED THE 475TH COMBAT SUPPORT GROUP (TMO), APO 96519, IN PART, AS FOLLOWS:

"3. AT FLIGHT CHECK IN TIME, ALICE SAMSON AND RICHARD SAMSON PRESENTED THEMSELVES FOR TRAVEL. THE THREE DEPENDENTS NAMED HOPKINS DID NOT CHECK IN. BECAUSE OF A CARRIER DELAY ON THE G284/184, THE PASSENGERS WERE BILLETED BY THE CARRIER IN DOWNTOWN TOKYO HOTELS. ON 3 JUNE, AUTHORIZATION WAS RECEIVED TO MOVE THE DELAYED PASSENGERS CATEGORY -A- ON PAN AMERICAN FROM TIA ON A FLIGHT DEPARTING TOO SOON TO PERMIT THE PASSENGERS RETURN TO TACHIKAWA AB FOR MANIFESTING.

"4. PAN AMERICAN REPRESENTATIVES AT TIA, IN CONJUNCTION WITH SEABOARD- WORLD PERSONNEL, PREPARED THE BOARDING MANIFEST. WHEN THE PAN AMERICAN REPRESENTATIVE PROVIDED THIS OFFICE WITH THE PASSENGERS' NAMES -- AFTER FLIGHT DEPARTURE--- IT WAS DISCOVERED THAT FIVE PERSONS BY THE NAME OF SAMSON HAD DEPARTED. THERE WERE NO OTHER PERSONNEL BESIDES THE DEPENDENTS OF CWO SAMSON BY THAT NAME PORT CALLED FOR THE G284/184.

"5. IT WOULD APPEAR FROM THE ABOVE THAT THE THREE HOPKINS ACCOMPANIED THE WIFE AND SON OF CWO SAMSON TO THE HOTEL AND, IN THE CONFUSION SURROUNDING THE MANIFESTING AND BOARDING OF THE FLIGHT, WERE ERRONEOUSLY LISTED AS SAMSON ON THE MANIFEST PREPARED BY PAN AMERICAN.

"6. PLEASE PROVIDE MTA'S COVERING THE TRAVEL OF LINDA L. HOPKINS, ROBERT H. HOPKINS, AND DEBORAH L. HOPKINS FROM TACHIKAWA AIR BASE, JAPAN TO TRAVIS AIR FORCE BASE, CALIFORNIA, SO THAT OUR RECORDS AND SETTLEMENT WITH THE CARRIER CAN BE COMPLETED.'

AS A RESULT OF THAT REQUEST, MILITARY TRANSPORTATION AUTHORIZATION NO. A- 4432471 WAS ISSUED ON JULY 12, 1968, TO COVER THE CATEGORY "A" TRANSPORTATION FURNISHED LINDA HOPKINS AND HER CHILDREN ON A SPACE REQUIRED BASIS. PAYMENT FOR THEIR TRANSPORTATION WAS MADE TO PAN AMERICAN AIRWAYS, INC., AND YOU WERE REQUIRED TO REMIT $333, THE COMMON USER FARE (RATE TABLE IV, AIR FORCE REGULATION NO. 76-11, DATED JANUARY 18, 1968), FOR THE TRANSPORTATION, WHICH IS CONSIDERABLY LESS THAN WAS ACTUALLY PAID TO THE CARRIER BY THE GOVERNMENT UNDER THE TERMS OF THE CONTRACT.

YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT OF MAY 13, 1969, FOR THE REASON THAT SINCE YOUR DAUGHTER AND HER CHILDREN WERE NOT YOUR DEPENDENTS FOR TRANSPORTATION PURPOSES THEY WERE NOT ENTITLED TO THE TRANSPORTATION FURNISHED AT PUBLIC EXPENSE. IN YOUR PRESENT LETTER YOU SAY YOU UNDERSTAND YOUR DAUGHTER AND HER CHILDREN WERE NOT YOUR DEPENDENTS FOR TRANSPORTATION PURPOSES AND SHOULD NOT HAVE BEEN FURNISHED TRANSPORTATION ON A SPACE REQUIRED BASIS, BUT THAT YOUR CLAIM IS BASED ON THE ERROR BY AIR FORCE PERSONNEL. YOU SAY THAT YOUR CLAIM WAS INVESTIGATED AND APPROVED BY THE OFFICE OF THE INSPECTOR GENERAL, HEADQUARTERS UNITED STATES AIR FORCE, AND THAT IT ALSO WAS APPROVED BY THE AIR FORCE ACCOUNTING AND FINANCE CENTER. APPARENTLY, YOU ARE UNDER THE IMPRESSION THAT SUCH APPROVAL AFFORDS A BASIS FOR PAYMENT OF YOUR CLAIM.

SECTION 406 (E) OF TITLE 37, U.S. CODE, AUTHORIZES THE RETURN AT GOVERNMENT EXPENSE OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES FROM OVERSEAS STATIONS TO THE UNITED STATES UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES PRIOR TO ORDERS DIRECTING A PERMANENT CHANGE OF STATION FOR THE MEMBER. SO FAR AS HERE CONCERNED, SECTION 401 OF TITLE 37, U.S. CODE, DEFINES THE TERM "DEPENDENT" TO MEAN THE MEMBER'S SPOUSE AND HIS UNMARRIED LEGITIMATE CHILD WHO IS EITHER UNDER 21 YEARS OF AGE OR IS INCAPABLE OF SELF-SUPPORT BECAUSE OF MENTAL OR PHYSICAL INCAPACITY AND IS IN FACT DEPENDENT ON THE MEMBER FOR OVER ONE-HALF OF HIS SUPPORT.

YOUR DAUGHTER WAS OVER 21 YEARS OF AGE WHEN SHE JOINED YOUR HOUSEHOLD AND THE RECORD DOES NOT SHOW THAT DEPENDENCY HAS BEEN ESTABLISHED ON THE GROUNDS PROVIDED IN THE STATUTE. THE LAW DOES NOT INCLUDE GRANDCHILDREN AS DEPENDENTS UNDER ANY CIRCUMSTANCES. THUS, YOUR DAUGHTER AND HER CHILDREN WERE NOT ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE.

IT IS REPORTED BY THE AIR FORCE THAT CLOSE BLOOD OR AFFINITIVE RELATIVES WHO ARE MEMBERS OF THE HOUSEHOLD AND DEPENDENT UPON THE MEMBER, ALTHOUGH NOT RECOGNIZED AS LEGAL DEPENDENTS, ARE FURNISHED OCEAN TRANSPORTATION ON A SPACE AVAILABLE BASIS (AT NO EXPENSE TO THE GOVERNMENT), BUT THAT THE TRAVEL MUST BE PERFORMED AT THE TIME OF THE MOVEMENT OF THE MEMBER OR HIS LEGAL DEPENDENTS. IN THE PRESENT CASE, IT EVIDENTLY WAS INTENDED TO FURNISH SPACE REQUIRED TRAVEL FOR YOUR DEPENDENTS ON FLIGHT G-284 AND SPACE AVAILABLE TRANSPORTATION AT NO ADDITIONAL COST TO THE GOVERNMENT FOR THE OTHER THREE ON THE SAME PLANE. THAT FLIGHT WAS DELAYED AND, PRESUMABLY DUE TO AN ERROR BY THE PERSONNEL HANDLING ARRANGEMENTS FOR THE SUBSTITUTED FLIGHT, ALL FIVE MEMBERS OF YOUR FAMILY WERE PLACED ABOARD A PAN AMERICAN PLANE ON A SPACE REQUIRED BASIS AND LISTED ON THE MANIFEST UNDER YOUR NAME.

UNDER A CONTRACT FOR CATEGORY "A" TRANSPORTATION THE GOVERNMENT IS REQUIRED TO PAY FOR EACH SEAT USED. THERE ARE NO SPACE AVAILABLE SEATS WHEN CATEGORY "A" PASSENGER SERVICE IS FURNISHED. ALL SUCH TRANSPORTATION IS SPACE REQUIRED. CONSEQUENTLY, SINCE YOUR DAUGHTER AND HER CHILDREN ACTUALLY WERE FURNISHED SPACE REQUIRED TRANSPORTATION, THE AIR FORCE WAS OBLIGED TO ISSUE A MILITARY TRANSPORTATION AUTHORIZATION TO PAY THE AIRLINE FOR THE TRAVEL.

BY LETTER OF DECEMBER 11, 1968, THE OFFICE OF THE INSPECTOR GENERAL, HEADQUARTERS, UNITED STATES AIR FORCE, ADVISED YOU THAT AFTER A REVIEW OF ALL THE FACTS AND CIRCUMSTANCES IT BELIEVED THE PAYMENT WAS ERRONEOUS AND SUGGESTED THAT YOU SUBMIT A CLAIM TO THE AIR FORCE FINANCE AND ACCOUNTING CENTER. THE FINANCE CENTER IN TRANSMITTING THE CLAIM TO THIS OFFICE RECOMMENDED PAYMENT FOR THE REASON THAT "THE ERROR WAS BEYOND CONTROL OF THE INDIVIDUAL.' SUCH REASON, HOWEVER, DOES NOT CONSTITUTE A LEGAL REASON FOR PAYMENT OF A CLAIM AGAINST THE UNITED STATES, AND WHILE THIS OFFICE CONSIDERS ADMINISTRATIVE RECOMMENDATIONS ON CLAIMS SUBMITTED HERE FOR SETTLEMENT, WE ARE NOT BOUND BY SUCH RECOMMENDATIONS.

AS TO YOUR CONTENTION THAT A BASIS FOR THE ALLOWANCE OF YOUR CLAIM EXISTS BECAUSE THE TRANSPORTATION FURNISHED YOUR DAUGHTER AND GRANDCHILDREN RESULTED FROM ERRONEOUS ACTIONS OF AIR FORCE PERSONNEL, YOU ARE ADVISED THAT IT HAS LONG BEEN HELD THAT IN THE ABSENCE OF A STATUTE SO PROVIDING, THE GOVERNMENT IS NOT LIABLE FOR THE NONFEASANCE, MISFEASANCE OR NEGLIGENCE OF ITS OFFICERS, EMPLOYEES OR AGENTS. SEE GERMAN BANK V UNITED STATES, 148 U.S. 573; ROBERTSON V SICHEL, 127 U.S. 507.

SINCE THE LAW AFFORDS NO BASIS FOR PAYMENT OF TRANSPORTATION FURNISHED MEMBERS OF A SERVICEMAN'S FAMILY WHO ARE NOT HIS DEPENDENTS AS DEFINED IN 37 U.S.C. 401, THERE IS NO BASIS FOR PAYMENT OF YOUR CLAIM NOTWITHSTANDING THAT YOU WERE NOT AT FAULT IN THE MATTER.

ACCORDINGLY, THE SETTLEMENT OF MAY 13, 1969, WAS CORRECT AND IS SUSTAINED.