B-171327, JAN 14, 1971

B-171327, JAN 14, 1971

TRANSFERS - MISTAKE IN ORDERS DENYING CLAIM OF MEMBER FOR THE LOSS INCURRED IN SELLING HIS HOUSEHOLD EFFECTS INCIDENT TO REASSIGNMENT FROM THE U.S.S. GUNSTON HALL AT SAN DIEGO, CALIF., TO NAVAL TRAINING CENTER, GREAT LAKES, ILLINOIS. IN RELIANCE ON MISTAKEN ORDERS, AUTHORIZING 24-WEEKS TEMPORARY DUTY INSTEAD OF DUTY UNDER INSTRUCTION, CLAIMANT SOLD HIS HOUSEHOLD EFFECTS AT A LOSS OF $3,444. UNDER SUCH CIRCUMSTANCES, WHERE THE CORRECT ORDERS WOULD HAVE ALLOWED SHIPMENT OF THE GOODS, THERE IS NO RIGHT TO REIMBURSEMENT EITHER FOR THE LOSS INCURRED IN THE SALE OR ON THE BASIS OF WHAT THE GOVERNMENT WOULD HAVE PAID HAD THE GOODS BEEN SHIPPED.

TO IC1 MICHAEL F. BRUCE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 27, 1970, REQUESTING REVIEW OF THE SETTLEMENT OF OCTOBER 2, 1970, WHICH DISALLOWED YOUR CLAIM FOR THE LOSS INCURRED BY YOU IN SELLING YOUR HOUSEHOLD EFFECTS INCIDENT TO YOUR REASSIGNMENT FROM THE U.S.S. GUNSTON HALL (LSD5) AT SAN DIEGO, CALIFORNIA, TO NAVAL TRAINING CENTER, GREAT LAKES, ILLINOIS.

THE REASSIGNMENT WAS ACCOMPLISHED BY STANDARD TRANSFER ORDER NO. 165 70 DATED APRIL 10, 1970, WHICH DIRECTED YOU TO PROCEED AND REPORT NOT LATER THAN JUNE 19, 1970, TO SERVICE SCHOOL COMMAND, NAVAL TRAINING CENTER, GREAT LAKES, ILLINOIS, FOR 24 WEEKS' TEMPORARY DUTY UNDER INSTRUCTION (TEMDUINS), AT THE IC "B" SCHOOL AND FOR FURTHER ASSIGNMENT. YOU REPORTED ON JUNE 12, 1970, AND BY ENDORSEMENT DATED JUNE 15, 1970, YOUR ORDERS WERE MODIFIED TO READ 24 WEEKS' DUTY UNDER INSTRUCTION (DUINS) INSTEAD OF TEMPORARY DUTY UNDER INSTRUCTION.

IN PRESENTING YOUR CLAIM YOU SAID THAT YOU WERE ADVISED BY PERSONNEL IN THE HOUSEHOLD GOODS OFFICE AT SAN DIEGO THAT YOU COULD NOT SHIP YOUR HOUSEHOLD EFFECTS SINCE YOUR ORDERS CALLED FOR 24 WEEKS' TEMPORARY DUTY UNDER INSTRUCTION. UPON ARRIVAL AT GREAT LAKES IT WAS LEARNED THAT YOUR ORDERS WERE ERRONEOUS AND THAT SINCE THE DUTY WAS FOR MORE THAN 20 WEEKS THEY SHOULD HAVE READ "DUINS" RATHER THAN "TEMPDUINS." HAD THE ORDERS BEEN SO WRITTEN YOU WOULD HAVE BEEN ENTITLED TO SHIP YOUR EFFECTS. BASED ON THE INFORMATION GIVEN TO YOU PRIOR TO YOUR DEPARTURE FROM SAN DIEGO, HOWEVER, YOU SAY YOU SOLD YOUR EFFECTS AT A LOSS OF $3,444.

YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASON THAT THIS OFFICE IS NOT AWARE OF ANY LAW WHICH WOULD AUTHORIZE REIMBURSEMENT FOR THE LOSS YOU SUSTAINED IN SELLING YOUR HOUSEHOLD GOODS. THE SETTLEMENT STATED THAT UNDER YOUR ORDERS AS WRITTEN YOU COULD HAVE PLACED YOUR EFFECTS IN STORAGE.

IN YOUR PRESENT LETTER YOU STATE THAT YOU WERE ADVISED THAT YOU COULD NEITHER SHIP NOR STORE YOUR EFFECTS AND URGE THAT YOUR CLAIM BE RECONSIDERED ON THE GROUNDS THAT THE LOSS WAS DUE TO ACTS OF NEGLIGENCE ON THE PART OF NAVAL PERSONNEL. ALSO, YOU SAY THAT IT WOULD SEEM EQUITABLE TO ALLOW, IN THE ALTERNATIVE, AT LEAST A SUM EQUAL TO THE EXPENSE THE GOVERNMENT WOULD HAVE INCURRED HAD YOUR EFFECTS BEEN SHIPPED UNDER YOUR ORDERS AS AMENDED. AS TO THIS, YOU SAY THE HOUSEHOLD GOODS OFFICE AT YOUR PRESENT STATION HAS ESTIMATED THAT THE COST TO THE GOVERNMENT WOULD HAVE BEEN BETWEEN $820 AND $910.

SECTION 406 OF TITLE 37 U.S. CODE, PROVIDES THAT A MEMBER IS ENTITLED, IN CONNECTION WITH A TEMPORARY OR PERMANENT CHANGE OF STATION, TO TRANSPORTATION OF HIS HOUSEHOLD GOODS (INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE AND UNPACKING) WITHIN PRESCRIBED ALLOWANCES, SUBJECT TO SUCH CONDITIONS AND TO AND FROM SUCH PLACES AS PRESCRIBED BY THE SECRETARIES. IMPLEMENTING REGULATIONS ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS.

PARAGRAPH M8203 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT WHEN A MEMBER IS ORDERED FROM A PERMANENT DUTY STATION TO TEMPORARY DUTY WITHOUT RETURN TO SUCH DUTY STATION OR TO TEMPORARY DUTY FOR FURTHER ASSIGNMENT, HIS HOUSEHOLD GOODS, WITHIN THE PRESCRIBED PERMANENT CHANGE OF-STATION WEIGHT ALLOWANCE, MAY BE PLACED IN NONTEMPORARY STORAGE. PARAGRAPH M8204 OF THE REGULATIONS PROVIDES THAT HOUSEHOLD GOODS PLACED IN STORAGE UNDER THE ABOVE PROVISION MAY BE SHIPPED TO ANY SUBSEQUENT PERMANENT DUTY STATION.

IN VIEW OF THOSE PROVISIONS AND SINCE THE ORDERS OF APRIL 10, 1970, AS ISSUED, DIRECTED TEMPORARY DUTY AT GREAT LAKES AND FURTHER ASSIGNMENT TO DUTY, THE BASIS FOR THE ADVICE GIVEN YOU BY THE NAVY THAT YOUR EFFECTS COULD NOT BE PLACED IN STORAGE IS NOT APPARENT.

IN CLAIMS AGAINST THE GOVERNMENT, HOWEVER, WHERE THERE IS NO ENTITLEMENT UNDER THE LAW 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.

THE LAW AND REGULATIONS PROVIDE AUTHORITY ONLY FOR STORAGE AND/OR SHIPMENT OF HOUSEHOLD EFFECTS OF MEMBERS WITHIN PRESCRIBED LIMITATIONS UNDER VARIOUS PRESCRIBED CIRCUMSTANCES. WHERE, AS HERE, THE EFFECTS ARE NEITHER STORED NOR SHIPPED BUT ARE DISPOSED OF BY THE MEMBER, THERE IS NO AUTHORITY OF LAW UNDER WHICH WE MAY AUTHORIZE PAYMENT TO HIM OF A COMMUTED ALLOWANCE BASED ON THE COST WHICH WOULD HAVE BEEN INCURRED HAD HIS EFFECTS BEEN SHIPPED TO HIS NEW STATION.

SINCE THERE IS NO AUTHORITY FOR THE ALLOWANCE OF YOUR CLAIM, THE SETTLEMENT OF OCTOBER 2, 1970, WAS CORRECT AND IS SUSTAINED.