B-170611, SEP. 17, 1970

B-170611, SEP. 17, 1970

TRANSPORTATION EXPENSES - HOUSEHOLD EFFECTS - STORAGE SUSTAINING SETTLEMENT OF JUNE 25, 1970, THAT DISALLOWED CLAIM FOR REIMBURSEMENT FOR ACCESSORIAL SERVICES AND STORAGE OF HOUSEHOLD GOODS PLACED IN STORAGE PRIOR TO RECEIPT OF ORDERS TO ACTIVE DUTY AS AN OFFICER IN THE U.S. AIR FORCE RESERVES. AIR FORCE RESERVIST, WHO PRIOR TO RECEIPT OF ACTIVE DUTY ORDERS, PLACED HIS HOUSEHOLD EFFECTS IN STORAGE FOR PERSONAL REASONS AT HIS EXPENSE, IS NOT ENTITLED TO REIMBURSEMENT OF EXPENSES, SINCE THE REGULATIONS DO NOT PROVIDE FOR TEMPORARY STORAGE OF HOUSEHOLD GOODS PRIOR TO ISSUANCE OF ORDERS, UNLESS REQUIRED BY APPROPRIATE AUTHORITY BECAUSE OF A SERVICE NECESSITY.

TO DOCTOR RONALD W. GROUT:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 28, 1970, REQUESTING REVIEW OF THE SETTLEMENT OF JUNE 25, 1970, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR ACCESSORIAL SERVICES AND STORAGE OF YOUR HOUSEHOLD GOODS WHICH WERE PLACED IN STORAGE PRIOR TO RECEIPT OF YOUR ORDERS TO ACTIVE DUTY AS AN OFFICER IN THE U. S. AIR FORCE RESERVE (DC).

BY SPECIAL ORDER AB-6895, DATED JULY 23, 1969, ADDRESSED TO YOU AT MCPHERSON, KANSAS, YOU WERE ORDERED TO ACTIVE DUTY EFFECTIVE SEPTEMBER 7, 1969, ON WHICH DATE YOU WERE TO PROCEED AND REPORT AT SHEPPARD AIR FORCE BASE, TEXAS, FOR TEMPORARY DUTY UPON COMPLETION OF WHICH YOU WERE TO REPORT AT GOODFELLOW AIR FORCE BASE, TEXAS, FOR DUTY. THE ORDERS WERE AMENDED ON SEPTEMBER 5, 1969, TO SHOW YOUR HOME OF RECORD AS KANSAS CITY INSTEAD OF MCPHERSON.

ON JUNE 13, 1969, PRIOR TO ISSUANCE OF THE ORDERS TO ACTIVE DUTY, YOUR EFFECTS WERE PACKED, CRATED AND PLACED IN STORAGE IN KANSAS CITY AT PERSONAL EXPENSE. ON SEPTEMBER 25, 1969, YOUR EFFECTS WERE REMOVED FROM STORAGE AND SHIPPED TO YOUR PERMANENT STATION AT GOVERNMENT EXPENSE. YOUR CLAIM FOR REIMBURSEMENT FOR THE ACCESSORIAL CHARGES AND STORAGE FROM JUNE 13 TO OCTOBER 13, 1969, WAS DENIED BY THE AIR FORCE AND DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASON THAT YOUR EFFECTS WERE PLACED IN STORAGE PRIOR TO THE ORDERS TO ACTIVE DUTY, CITING PARAGRAPH M8015-1 OF THE JOINT TRAVEL REGULATIONS.

IN YOUR PRESENT LETTER YOU SAY THAT WHEN THE MEDICAL CAREER DIVISION, RANDOLPH AIR FORCE BASE, TEXAS, INDICATED TO YOU THAT YOUR ORDERS TO EXTENDED ACTIVE DUTY WOULD BE ISSUED IN SEPTEMBER 1969, INSTEAD OF APRIL 1969, AS PREVIOUSLY EXPECTED, YOU CONTACTED AIR RESERVE PERSONNEL CENTER, DENVER, COLORADO, ABOUT THE DELAY. YOU EXPLAINED THAT YOU NEEDED THE ORDERS EARLIER THAN SEPTEMBER BECAUSE THE LEASE ON YOUR HOME IN KANSAS CITY WAS EXPIRING IN JUNE; AND YOU HAD TO PROVIDE AN INCOME FOR YOUR FAMILY FOR THREE MONTHS WHILE AWAITING ORDERS AND HAD AN OPPORTUNITY TO PRACTICE DENTISTRY 200 MILES AWAY FROM KANSAS CITY DURING THAT PERIOD.

IN THESE CIRCUMSTANCES, YOU SAY YOU HAD NO CHOICE BUT TO MOVE YOUR FURNITURE INTO STORAGE FOR THREE MONTHS. ALSO, YOU SAY THE MOVING AGENT ADVISED YOU THAT OTHERS HAD PLACED THEIR EFFECTS IN STORAGE AND WERE LATER REIMBURSED BY THE AIR FORCE. IN ADDITION, YOU SAY YOU REALIZE THAT TRANSPORTATION OF YOUR HOUSEHOLD GOODS WAS NOT AUTHORIZED PRIOR TO ISSUANCE OF ORDERS BUT THAT THIS WAS YOUR INITIAL TOUR OF ACTIVE DUTY AND YOU WERE UNAWARE OF THE LIMITATIONS OF PARAGRAPH M8015 1 OF THE JOINT TRAVEL REGULATIONS. ON THE BASIS THAT THE AIR FORCE WAS NEGLIGENT IN REMAINING SILENT AND FAILING TO PROPERLY ADVISE YOU OF YOUR SHIPPING RIGHTS WHEN YOUR SITUATION WAS MADE KNOWN, YOU URGE THAT YOUR CLAIM SHOULD BE ALLOWED.

THE HONORABLE BOB DOLE, UNITED STATES SENATE, HAS FORWARDED FOR OUR CONSIDERATION IN CONNECTION WITH YOUR APPEAL COPIES OF YOUR LETTERS TO HIM OF AUGUST 3 AND 24, 1970. IN THOSE LETTERS YOU SUPPLEMENT THE STATEMENT IN YOUR APPEAL WITH ADVICE THAT CAPTAIN DWAINE WAGNER WAS REIMBURSED STORAGE AND ACCESSORIAL COSTS BY THE AIR FORCE FOR STORAGE OF HOUSEHOLD EFFECTS PRIOR TO ORDERS IN CIRCUMSTANCES SIMILAR TO YOURS. ALSO, THE HONORABLE GARNER E. SHRIVER, HOUSE OF REPRESENTATIVES, HAS WRITTEN US REGARDING YOUR CLAIM.

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. UNDER THE PROVISIONS OF SUBSECTION (C) OF SECTION 406, HOWEVER, THESE ALLOWANCES ARE SUBJECT TO SUCH CONDITIONS AND LIMITATIONS AS THE SECRETARIES MAY PRESCRIBE.

PARAGRAPH M8015-1 OF THE JOINT TRAVEL REGULATIONS PROMULGATED BY THE SECRETARIES PURSUANT TO THAT AUTHORITY SPECIFICALLY PROVIDES THAT TRANSPORTATION OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE IS NOT AUTHORIZED PRIOR TO ISSUANCE OF ORDERS EXCEPT IN CASES OF EMERGENCY, EXIGENCY OF THE SERVICE, OR WHEN REQUIRED BY SERVICE NECESSITY, AS DETERMINED BY THE APPROPRIATE AUTHORITY OF THE UNIFORMED SERVICE CONCERNED.

TEMPORARY STORAGE OF HOUSEHOLD GOODS, AS IN YOUR CASE, IS AN ELEMENT OF TRANSPORTATION FOR THE PURPOSES OF PARAGRAPH M8015-1 OF THE REGULATIONS AND THERE HAS BEEN NO DETERMINATION BY APPROPRIATE AIR FORCE AUTHORITY THAT THE TEMPORARY STORAGE OF YOUR HOUSEHOLD GOODS WAS REQUIRED BY EMERGENCY, EXIGENCY OF THE SERVICE, OR SERVICE NECESSITY. SINCE THE RECORD SHOWS THAT YOUR HOUSEHOLD EFFECTS WERE PACKED, CRATED, AND HAULED TO STORAGE PRIOR TO THE ISSUANCE OF THE ORDERS FOR PERSONAL REASONS NO SUCH DETERMINATION REASONABLY COULD BE MADE.

IT IS UNFORTUNATE THAT AIR FORCE PERSONNEL DID NOT ADVISE YOU THAT YOUR EFFECTS COULD NOT BE PLACED IN STORAGE AT PUBLIC EXPENSE PRIOR TO ORDERS. IN CLAIMS AGAINST THE GOVERNMENT, HOWEVER, WHERE THERE IS NO ENTITLEMENT UNDER THE LAW BUT WHERE THE CLAIMANT URGES THAT HIS CLAIM SHOULD BE PAID BECAUSE OF ERRONEOUS ADVICE OR ACTIONS BY GOVERNMENT PERSONNEL, IT LONG HAS BEEN HELD THAT IN THE ABSENCE OF SOME STATUTORY PROVISION AUTHORIZING SUCH PAYMENT THE ERRONEOUS ADVICE OR ACTIONS DO NOT AFFORD A BASIS FOR PAYMENT OF THE CLAIM. SEE GERMAN BANK V UNITED STATES, 148 U.S. 573, AND ROBERTSON V SICHEL, 127 U.S. 507. WE ARE NOT AWARE OF ANY STATUTORY AUTHORITY FOR THE PAYMENT OF YOUR CLAIM FOR SUCH REASONS.

IN YOUR LETTER OF AUGUST 24, 1970, TO SENATOR DOLE YOU SAY THAT THE ONLY DIFFERENCE BETWEEN YOUR CASE AND THE WAGNER CASE IS THAT THE TRANSPORTATION OFFICER AT HOLLOMAN AIR FORCE BASE REQUESTED THEIR GOODS BE SHIPPED THROUGH AUTHORITY OF RICHARDS-GEBAUR AIR FORCE BASE FROM KANSAS CITY TO LAREDO ONE MONTH EARLY. YOU QUESTION WHY THE WAGNER'S BILL WAS ONLY $227.60 WHILE YOURS IS $695.35. YOU SAY THAT SINCE YOU PAID $467.75 MORE THAN THE WAGNER'S THEY EVIDENTLY WERE NOT CHARGED FOR PACKING LIKE YOU WERE AND THAT YOU MAY HAVE BEEN OVERCHARGED. YOU FURTHER SAY, HOWEVER, THAT THE WAGNER BILL MAY HAVE INCLUDED SOME PACKING AND THUS WAS PART OF THE AMOUNT REIMBURSED BY THE AIR FORCE. THEREFORE, YOU REQUEST THAT AT LEAST YOUR PACKING CHARGE BE REIMBURSED.

WE DO NOT HAVE ANY INFORMATION ON THE WAGNER CASE OTHER THAN FURNISHED BY YOUR LETTERS AND DO NOT KNOW THE WEIGHT OF THE SHIPMENT OR WHAT SERVICES ARE COVERED BY THE CHARGE OF $227.60. IT IS NOTED, HOWEVER, THAT IN YOUR CASE 5,850 POUNDS OF EFFECTS WERE PACKED AND HAULED TO STORAGE ON JULY 13, 1969, THAT THE CHARGE FOR PACKING WAS $319, AND THAT YOU PLACED AN ADDITIONAL 500 POUNDS IN STORAGE ON AUGUST 29, 1969, OR A TOTAL OF 6,350 POUNDS.

A REPORT FROM THE DIRECTOR OF TRANSPORTATION, DEPARTMENT OF THE AIR FORCE SHOWS THAT THE COST HAD THE GOVERNMENT ARRANGED FOR THE SERVICES IN YOUR CASE (BASED ON CHARGES FOR A MINIMUM WEIGHT OF 6,700 POUNDS), WOULD HAVE BEEN $687.45, INCLUDING $329 FOR PACKAGING AND APPLIANCE SERVICING. THUS, IT MAY BE THAT THE WEIGHT OF THE GOODS PACKED, HAULED AND STORED IN YOUR CASE WAS SUBSTANTIALLY GREATER THAN THE WAGNER'S.

THE ADVICE IN YOUR LETTER OF AUGUST 3, 1970, TO SENATOR DOLE REGARDING REIMBURSEMENT TO CAPTAIN DWAINE WAGNER FOR HIS STORAGE AND ACCESSORIAL CHARGES WAS CONTAINED IN YOUR LETTER TO THE FINANCE AND ACCOUNTING OFFICER AT GOODFELLOW AIR FORCE BASE, WHICH WAS RECEIVED WITH YOUR CLAIM, AND WAS CONSIDERED IN THE SETTLEMENT OF JUNE 25, 1970.

IF CAPTAIN WAGNER WAS REIMBURSED FOR SUCH CHARGES INCURRED PRIOR TO ORDERS TO ACTIVE DUTY IN CIRCUMSTANCES SIMILAR TO YOURS, SUCH REIMBURSEMENT WAS NOT AUTHORIZED AND THE PAYMENT WILL BE CONSIDERED IN THE AUDIT OF THE ACCOUNTS OF THE DISBURSING OFFICER CONCERNED. SUCH ERRONEOUS REIMBURSEMENT, HOWEVER, WOULD NOT AFFORD A BASIS FOR THE PAYMENT OF YOUR CLAIM.

ACCORDINGLY, SINCE THERE IS NO AUTHORITY FOR ALLOWANCE OF YOUR CLAIM, THE SETTLEMENT OF JUNE 25, 1970, WAS CORRECT AND IS SUSTAINED.