B-176114, NOV 9, 1972

B-176114, NOV 9, 1972

MILITARY PERSONNEL - MOVING EXPENSES DECISION DENYING THE CLAIM OF MAJOR JAMES S. PROWELL FOR REIMBURSEMENT OF EXPENSES INCURRED IN THE MOVEMENT OF PRIVATELY-OWNED AND GOVERNMENT-OWNED HOUSEHOLD EFFECTS FROM ONE ECONOMY HOUSING UNIT TO ANOTHER IN WIESBADEN, GERMANY, BECAUSE OF TERMINATION OF AN ECONOMY HOUSING RENTAL CONTRACT. A MEMBER'S RIGHT TO TRANSPORTATION OF HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE ACCRUES ONLY WHEN THE MOVEMENT IS INCIDENT TO A CHANGE OF RESIDENCE RESULTING FROM AN ORDERED CHANGE OF STATION. B-155539, JANUARY 7, 1965. ACCORDINGLY, THE CLAIM MUST BE DENIED.

TO MAJOR JAMES S. PROWELL:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 6, 1972, REQUESTING RECONSIDERATION OF THE ACTION TAKEN BY OUR TRANSPORTATION AND CLAIMS DIVISION IN SETTLEMENT DATED AUGUST 10, 1971, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES INCURRED IN THE MOVEMENT OF PRIVATELY OWNED AND GOVERNMENT OWNED HOUSEHOLD EFFECTS FROM ONE ECONOMY HOUSING UNIT TO ANOTHER IN WIESBADEN, GERMANY, BECAUSE OF TERMINATION OF AN ECONOMY HOUSING RENTAL CONTRACT.

THE RECORD BEFORE THIS OFFICE SHOWS THAT BY ORDERS DATED MAY 13, 1968, YOU WERE TRANSFERRED FROM WRIGHT-PATTERSON AIR FORCE BASE, OHIO, TO DET 34, 7260 SUPPORT SQUADRON (USAF), WIESBADEN, GERMANY. YOU WERE ACCOMPANIED BY YOUR DEPENDENTS AND YOU HAD AN APPROVED ECONOMY QUARTERS CONTRACT. UNDER THE TERMS OF THE RENTAL CONTRACT, THERE WAS A 15 DAY WRITTEN NOTICE TERMINATION CLAUSE THAT COULD BE INVOKED BY EITHER THE LANDLORD OR YOURSELF. ON FEBRUARY 10, 1969, YOU WERE NOTIFIED BY THE LANDLORD THAT THE LEASE WAS TO BE TERMINATED ON MARCH 31, 1969. AS A RESULT OF THIS ACTION, IT WAS NECESSARY FOR YOU TO OBTAIN ANOTHER ECONOMY HOUSING UNIT IN THE SAME LOCALITY AND YOU INCURRED MOVING EXPENSES OF $175.45 FOR WHICH YOU MADE CLAIM.

OUR TRANSPORTATION AND CLAIMS DIVISION DENIED YOUR CLAIM ON THE BASIS THAT SUCH MOVE WAS NOT CAUSED BY PERMANENT CHANGE-OF-STATION ORDERS WHICH IS THE ONLY AUTHORITY FOR THE GOVERNMENT TO PAY FOR THE SHIPMENT OF HOUSEHOLD EFFECTS AND ANY SHIPMENT OR MOVEMENT OF YOUR HOUSEHOLD EFFECTS UNDER THE ORDERS OF MAY 13, 1968, EXHAUSTED YOUR RIGHTS UNDER THOSE CHANGE OF STATION ORDERS.

IN YOUR CORRESPONDENCE OF APRIL 6, 1972, YOU CONTEND THAT CONSIDERATION WAS NOT GIVEN TO THE FACT THAT NOT ONLY WERE YOU REQUIRED TO MOVE FURNITURE WHICH YOU SAY YOU HAD TO OBTAIN BECAUSE THE GOVERNMENT DID NOT PROVIDE WHAT HAD BEEN PROMISED, BUT YOU ALSO HAD TO MOVE GOVERNMENT PROPERTY AT YOUR EXPENSE. YOU ADMIT THAT YOU COULD HAVE SENT GOVERNMENT FURNITURE BACK TO THE HOUSING SUPPLY OFFICE. YOU ALSO CONTEND THAT THE GOVERNMENT WAS A PARTY TO THE LEASE AGREEMENT AND THAT NO ACTION UNDER THE LEASE COULD BE TAKEN WITHOUT ITS CONSENT AND THEREFORE THE GOVERNMENT SHOULD REIMBURSE YOU THE COST OF MOVING YOUR HOUSEHOLD EFFECTS.

IT IS WELL SETTLED THAT A MEMBER'S RIGHT TO TRANSPORTATION OF HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE ACCRUES ONLY WHEN THE MOVEMENT IS INCIDENT TO A CHANGE OF RESIDENCE RESULTING FROM AN ORDERED CHANGE OF STATION. SEE B-155539, JANUARY 7, 1965, AND B-166739, JULY 11, 1969, COPIES ENCLOSED.

CONCERNING YOUR CONTENTION THAT THE GOVERNMENT DID NOT FURNISH, AS PROMISED, CERTAIN ITEMS OF HOUSEHOLD GOODS FOR YOUR ECONOMY QUARTERS WHICH YOU SAY YOU HAD TO OBTAIN AND LATER MOVE AT YOUR EXPENSE, THE RECORD CONTAINS A COPY OF A MESSAGE DATED MAY 7, 1968, FROM WIESBADEN AIR FORCE BASE TO WRIGHT-PATTERSON AIR FORCE BASE, OHIO, ADVISING YOU THAT MANY ITEMS OF HOUSEHOLD GOODS AND APPLIANCES THAT WERE FORMERLY AVAILABLE TO OCCUPANTS OF ECONOMY HOUSING IN THE WIESBADEN AREA ARE NO LONGER AVAILABLE AND THAT YOU SHOULD CONTACT YOUR SPONSOR PRIOR TO DEPARTING FOR GERMANY TO DETERMINE SPECIFIC ITEMS TO BRING WITH YOU.

YOUR CLAIM WAS ADMINISTRATIVELY DENIED ON THE BASIS OF AN OPINION OF THE STAFF JUDGE ADVOCATE, DEPARTMENT OF THE AIR FORCE, HEADQUARTERS AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, HOLDING IN SUBSTANCE, THAT YOUR CLAIM WAS FOUND TO BE LEGALLY INSUFFICIENT, AND THAT NO CONTRACTUAL RELATIONSHIP EXISTED BETWEEN THE GOVERNMENT AND THE PARTIES INVOLVED IN THE LEASE.

IT IS CLEAR FROM THE RECORD THAT THE LEASE WAS A TWO PARTY AGREEMENT BETWEEN THE LANDLORD AND YOURSELF. WHILE THE GOVERNMENT APPROVED THE LIVING CONDITIONS OF THE QUARTERS AND SUPPLIED THE LEASE FORM IT WAS NOT A PARTY TO THE CONTRACT. IT SHOULD BE NOTED THAT A PORTION OF THE CONTROLLING REGULATIONS (7101 AB WG. REGULATION NO. 30-5), SECTION 1A(2) READS AS FOLLOWS:

(2) A STANDARD LEASE CONTRACT (7101 ABWG FORM 60). THE STANDARD CONTRACT MAY BE CHANGED TO SUIT THE SPONSORS' NEEDS.

UNDER THE ABOVE CITED REGULATIONS, YOU COULD HAVE CHANGED ANY PORTION OF THE LEASE AS WAS AGREEABLE BETWEEN YOURSELF AND THE LANDLORD. MOREOVER, THERE IS NOTHING IN THE RECORD TO INDICATE THAT AIR FORCE TRANSPORTATION OFFICIALS AT WIESBADEN REFUSED TO MOVE GOVERNMENT-OWNED PROPERTY FROM THE PREMISES OCCUPIED BY YOU AT THE TIME YOUR LEASE WAS TERMINATED. AS YOU ADMIT, YOU COULD HAVE RETURNED GOVERNMENT-OWNED PROPERTY BACK TO THE HOUSING SUPPLY OFFICE.

ACCORDINGLY, ON THE RECORD BEFORE US, THERE IS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM AND THE SETTLEMENT OF AUGUST 10, 1971, DISALLOWING THAT CLAIM IS SUSTAINED.

CONCERNING YOUR REQUEST AS TO WHAT OTHER COURSES OF ACTION ARE AVAILABLE TO YOU, YOU ARE ADVISED THAT DECISIONS OF THE COMPTROLLER GENERAL OF THE UNITED STATES RENDERED ON CLAIMS SETTLED BY THE GENERAL ACCOUNTING OFFICE ARE CONCLUSIVE UPON THE EXECUTIVE BRANCH OF GOVERNMENT. SEE 31 U.S.C. 74. INDEPENDENTLY OF THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE, HOWEVER, THE UNITED STATES COURT OF CLAIMS AND THE UNITED STATES DISTRICT COURTS HAVE JURISDICTION TO CONSIDER CERTAIN CLAIMS AGAINST THE GOVERNMENT IF SUIT IS FILED WITHIN 6 YEARS AFTER THE CLAIM FIRST ACCRUED. SEE 28 U.S.C. 1346(A)(2), 1591, 2401 AND 2501.