B-167467, SEP 8, 1969

B-167467, SEP 8, 1969

MILITARY - TRANSPORTATION OF EFFECTS - PRIOR TO ORDERS DECISION TO OFFICER OF MARYLAND AIR NATIONAL GUARD SUSTAINING DISALLOWANCE OF CLAIM FOR REIMBURSEMENT OF EXPENSES OF PACKING, AND HAULING HOUSEHOLD EFFECTS TO COMMERCIAL STORAGE. MILITARY MEMBER WHO MOVED EFFECTS PRIOR TO ACTIVE DUTY ORDERS ON BASIS OF AN ALERT TO CALL UP FOR ACTIVE DUTY IN THE AREA OF THE HOME MAY HAVE SUCH ORDERS REGARDED AS AUTHORIZATION FOR SHIPMENT OF EFFECTS FROM HOME TO NEARBY STORAGE. THEREFORE DISALLOWANCE OF CLAIM IS SUSTAINED.

TO MAJOR ARTHUR D. HAWKSWORTH:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JUNE 30 AND AUGUST 5, 1969, REQUESTING REVIEW OF THE SETTLEMENT OF JUNE 23, 1969, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES INCURRED FOR PACKING, HAULING AND STORAGE OF YOUR HOUSEHOLD GOODS PRIOR TO ORDERS TO ACTIVE DUTY.

BY SPECIAL ORDER A-48 DATED MAY 13, 1968, THE 175TH TACTICAL FIGHTER GROUP, MARYLAND AIR NATIONAL GUARD, OF WHICH YOU WERE A MEMBER, WAS CALLED UP FOR ACTIVE DUTY ON THAT DATE FOR 24 MONTHS UNLESS SOONER RELEASED. THE ORDERS WERE ADDRESSED TO YOUR HOME OF RECORD, 911 JAMIESON ROAD, LUTHERVILLE, MARYLAND. ON APRIL 24, 1968, PRIOR TO THOSE ORDERS, YOU HAD YOUR HOUSEHOLD EFFECTS PACKED AND HAULED TO COMMERCIAL STORAGE IN TOWSON, MARYLAND, WHERE THEY REMAINED UNTIL JUNE 10, 1968. BOTH LUTHERVILLE AND TOWSON ARE IN THE BALTIMORE AREA.

IN PRESENTING YOUR CLAIM FOR REIMBURSEMENT OF THE EXPENSES INCURRED IN PACKING, HAULING AND STORAGE OF YOUR HOUSEHOLD EFFECTS YOU FURNISHED THE FOLLOWING INFORMATION:

"ON 1 MARCH 1968, I BEGAN WORKING IN SAN JUAN, PUERTO RICO WITH INTENTIONS OF TRANSFERRING FROM THE MARYLAND ANG TO THE PUERTO RICO ANG AT A LATER DATE.

"ON 26 MARCH 1969, MY RESIDENCE IN BALTIMORE WAS SOLD WITH SETTLEMENT ON 26 APRIL 1968.

"ON 25 MARCH 1968, I CONTRACTED TO PURCHASE A HOME IN SAN JUAN, PUERTO RICO.

"ON 13 APRIL 1968, THE 175 TFG WAS ALERTED TO ACTIVE DUTY.

"ON 24 APRIL 1968, HOUSEHOLD GOODS WERE PLACED IN STORAGE WITH ADVANCE STORAGE COMPANY, INC., BALTIMORE, MD. UNDER THE PROVISIONS OF THE SOLDIERS AND SAILORS RELIEF ACT, THE PURCHASE OF THE HOME IN SAN JUAN WAS STOPPED.

"ON 13 MAY 1968, I REPORTED ON ACTIVE DUTY AND TOOK UP RESIDENCE IN THE COMMUNITY ON 5 MAY 1968."

WHILE THE RECORD DOES NOT INCLUDE THE CITED ALERT NOTICE DATED APRIL 13, 1968, YOU HAVE FURNISHED A COPY OF A NOTICE TO YOUR EMPLOYER DATED APRIL 19, 1968, ADVISING HIM THAT THE 175TH TACTICAL FIGHTER GROUP, MARYLAND AIR NATIONAL GUARD, HAD BEEN ALERTED FOR A CALL TO ACTIVE DUTY ON MAY 13, 1968.

YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE IN WHICH IT WAS STATED THAT THE MOVEMENT OF YOUR HOUSEHOLD GOODS WAS PRIOR TO ORDERS TO ACTIVE DUTY AND WAS NECESSITATED BECAUSE OF YOUR CONTEMPLATED TRANSFER FROM MARYLAND TO PUERTO RICO. IN YOUR LETTER OF JUNE 30, 1969, YOU SAY YOU DO NOT QUARREL WITH THE FACT THAT YOU MOVED YOUR HOUSEHOLD GOODS PRIOR TO ORDERS BUT CONTEND THAT WHEN YOU WERE CALLED UP THE GOVERNMENT WOULD HAVE MOVED YOUR HOUSEHOLD GOODS WHETHER YOU RESIDED IN MARYLAND OR PUERTO RICO AND, THEREFORE, THAT THE EXPENSES SHOULD BE PAID. ALSO, YOU REQUEST ADVICE AS TO WHAT REVIEW PROCESSES ARE AVAILABLE TO YOU.

SECTION 406(B) OF TITLE 37, U.S. CODE, PROVIDES THAT "IN CONNECTION WITH A CHANGE OF TEMPORARY OR PERMANENT STATION, A MEMBER IS ENTITLED TO TRANSPORTATION (INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE, AND UNPACKING)" OF HOUSEHOLD EFFECTS OR REIMBURSEMENT THEREFOR.

PARAGRAPH M8015-1 OF THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO THAT AUTHORITY OF LAW SPECIFICALLY PROVIDES THAT TRANSPORTATION OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE IS NOT AUTHORIZED PRIOR TO ISSUANCE OF ORDERS EXCEPT IN CASE OF EMERGENCY, EXIGENCY OF THE SERVICE, OR WHEN REQUIRED BY SERVICE NECESSITY, AS DETERMINED BY THE APPROPRIATE AUTHORITY OF THE UNIFORMED SERVICE CONCERNED. PARAGRAPH M8307 OF THE SAME REGULATIONS PROVIDES THAT A MEMBER OF A UNIT LOCATED WITHIN THE UNITED STATES WHICH HAS BEEN OFFICIALLY ALERTED FOR MOVEMENT TO A RESTRICTED PERMANENT DUTY STATION OUTSIDE THE UNITED STATES CONTEMPLATED TO COMMENCE WITHIN 90 DAYS AFTER SUCH ALERT NOTICE, IS ENTITLED TO SHIPMENT AND/OR STORAGE OF HOUSEHOLD GOODS TO THE SAME EXTENT AS FOR ASSIGNMENT TO A RESTRICTED AREA.

IN YOUR CASE THE ALERT WAS SIMPLY THAT YOU WERE BEING CALLED UP FOR ACTIVE DUTY ON MAY 13, 1968, AND THE ORDERS OF THAT DATE ASSIGNED YOU TO A SQUADRON AT THE HEADQUARTERS OF YOUR UNIT. THIS ALSO WAS IN THE BALTIMORE AREA. THERE IS NO INDICATION THAT THE ALERT WAS FOR MOVEMENT TO A RESTRICTED STATION OUTSIDE THE UNITED STATES CONTEMPLATED TO COMMENCE WITHIN 90 DAYS. AND, WITH RESPECT TO THE MOVEMENT OF YOUR HOUSEHOLD GOODS PRIOR TO ORDERS, THERE WAS NO DETERMINATION BY THE AIR FORCE THAT SUCH MOVEMENT WAS DUE TO AN EMERGENCY, EXIGENCY OF THE SERVICE OR REQUIRED BY SERVICE NECESSITY AS IS REQUIRED BY THE REGULATIONS. IN THE CIRCUMSTANCES, THERE WOULD APPEAR TO BE NO BASIS FOR SUCH A DETERMINATION IN YOUR CASE.

PARAGRAPH M8252 OF THE JOINT TRAVEL REGULATIONS PROVIDES (WITH CERTAIN EXCEPTIONS NOT APPLICABLE HERE) THAT A MEMBER ORDERED TO ACTIVE DUTY WILL BE ENTITLED TO SHIPMENT OF HOUSEHOLD GOODS FROM HIS HOME OF RECORD, OR THE PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY, TO HIS FIRST OR ANY SUBSEQUENT DUTY STATION. NO SHIPPING ENTITLEMENT EXISTS, HOWEVER, WHEN THE HOME AND FIRST STATION ARE AT THE SAME PLACE. ALSO, PARAGRAPH M8101-6 OF THE REGULATIONS RELATING TO NON-TEMPORARY STORAGE DOES NOT PROVIDE FOR SUCH STORAGE ON ORDERS TO ACTIVE DUTY IN THE UNITED STATES. SINCE THE ORDERS OF MAY 13, 1968, PLACED YOU ON ACTIVE DUTY IN THE SAME AREA AS YOUR HOME, THOSE ORDERS, EVEN IF ISSUED BEFORE THE MOVE, APPARENTLY WOULD NOT HAVE SERVED AS AUTHORIZATION FOR PACKING AND HAULING YOUR EFFECTS FROM YOUR HOME TO NEARBY STORAGE.

ACCORDINGLY, SINCE THERE IS NO BASIS FOR PAYMENT OF YOUR CLAIM, THE SETTLEMENT OF JUNE 23, 1969, WAS CORRECT AND IS SUSTAINED.

WITH RESPECT TO WHAT REVIEW PROCESSES ARE AVAILABLE TO YOU, YOU ARE ADVISED THAT UNDER THE PROVISIONS OF 31 U.S.C. 71, THE SETTLEMENT OF SUCH CLAIMS AGAINST THE GOVERNMENT IS THE RESPONSIBILITY OF THE GENERAL ACCOUNTING OFFICE AND OUR DECISIONS WITH RESPECT TO THESE CLAIMS ARE CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. SEE 31 U.S.C. 74. HOWEVER, CERTAIN CLAIMS MAY ALSO BE THE BASIS OF SUITS IN THE UNITED STATES COURT OF CLAIMS OR THE UNITED STATES DISTRICT COURTS. SEE 28 U.S.C. 1346 AND 1491. WITH CERTAIN EXCEPTIONS, PETITIONS MUST BE FILED WITHIN SIX YEARS AFTER THE CLAIM FIRST ACCRUED. 28 U.S.C. 2401 AND 2501.