B-177545, MAR 12, 1973

B-177545, MAR 12, 1973

MILITARY PERSONNEL - TRANSPORTATION AND STORAGE OF HOUSEHOLD GOODS - TIME OF AUTHORIZATION DECISION SUSTAINING THE PRIOR SETTLEMENT WHICH DISALLOWED A CLAIM BY MAJOR JACQUES J. PALMER, MC, USAF, FOR THE COSTS OF PACKING HOUSEHOLD GOODS IN OXFORD, ENGLAND, AND TRANSPORTING THEM TO LONDON, ENGLAND, THE PLACE OF STORAGE. A REASSIGNMENT TO ACTIVE DUTY AT AN OVERSEAS STATION AFTER CANCELLATION OF ORDERS TO REPORT TO ACTIVE DUTY IN THE UNITED STATES DOES NOT ENTITLE CLAIMANT TO SHIPMENT AND STORAGE EXPENSES PRIOR TO RECEIPT OF ORDERS TO REPORT TO THE OVERSEAS STATION. FURTHER, WHILE 37 U.S.C. 406(E) PROVIDES FOR AUTHORIZATION, UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES, FOR THE MOVEMENT OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE PRIOR TO THE ISSUANCE OF ORDERS DIRECTING A PERMANENT CHANGE OF STATION, THE TERMINATION OF A LEASE BETWEEN CLAIMANT AND HIS LANDLORD IS OF A PERSONAL NATURE WITHOUT A SPECIFIC ELEMENT OF MILITARY NECESSITY AND THUS DOES NOT CONSTITUTE UNUSUAL OR EMERGENCY CIRCUMSTANCES. B-176567, NOVEMBER 27, 1972.

TO MAJ. JACQUES J. PALMER:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 10, 1972, WHICH IN EFFECT, REQUESTED REVIEW OF THE SETTLEMENT BY OUR TRANSPORTATION AND CLAIMS DIVISION DATED OCTOBER 30, 1972, DISALLOWING YOUR CLAIM FOR THE COSTS OF PACKING YOUR HOUSEHOLD GOODS IN OXFORD, ENGLAND, AND TRANSPORTING THEM TO LONDON, ENGLAND, WHERE THEY WERE STORED. WE HAVE ALSO RECEIVED A REQUEST FROM SENATOR HENRY M. JACKSON FOR A REPORT ON YOUR CLAIM.

THE RECORDS AVAILABLE TO THIS OFFICE INDICATE THAT AS A MEMBER OF THE AIR FORCE RESERVE NOT ON ACTIVE DUTY WHILE AT THE RADCLIFFE INFIRMARY, OXFORD, ENGLAND, YOU WERE ADVISED BY LETTER DATED MAY 17, 1971, THAT YOU WOULD BE CALLED TO YOUR INITIAL TOUR OF ACTIVE DUTY (24 MONTHS). YOUR ASSIGNMENT WAS TO BE AT THE USAF REGIONAL HOSPITAL, MARCH AIR FORCE BASE, RIVERSIDE, CALIFORNIA. HOWEVER, BEFORE REPORTING TO THAT BASE, YOU WERE DIRECTED TO REPORT TO THE MEDICAL SERVICE SCHOOL, SHEPPARD AIR FORCE BASE, WICHITA FALLS, TEXAS, ON SEPTEMBER 12, 1971, FOR TWO WEEKS' BASIC ORIENTATION. THE LETTER ALSO CONTAINED THE FOLLOWING STATEMENTS:

YOU MUST NOT BEGIN YOUR TRAVEL PRIOR TO THE DATE LISTED IN ITEM 12 OF YOUR INITIAL ACTIVE DUTY ORDERS. ***

ANY MILITARY TRANSPORTATION OFFICER WILL ASSIST YOU IN MOVING YOUR HOUSEHOLD GOODS.

BY SPECIAL ORDER AB-5026 DATED JUNE 17, 1971, HEADQUARTERS, AIR RESERVE PERSONNEL CENTER, YOU WERE ORDERED TO ACTIVE DUTY AS STATED IN THE MAY 17, 1971, LETTER WITH THE EFFECTIVE DATE OF DUTY SHOWN IN ITEM 12 AS SEPTEMBER 6, 1971. SUPPLEMENTAL INSTRUCTION NO. 12 ACCOMPANYING THIS ORDER PROVIDED: "NONTEMPORARY STORAGE AND/OR SHIPMENT OF HOUSEHOLD GOODS IS AUTHORIZED IMMEDIATELY UPON RECEIPT OF THIS ORDER BY THE MEMBER."

BY LETTER DATED AUGUST 4, 1971, YOU WERE ASKED IF YOU WOULD ACCEPT AN ASSIGNMENT AS NEUROSURGEON AT THE 2ND GENERAL HOSPITAL, LANDSTUHL, GERMANY. THIS OFFER WAS MADE WITH THE PROVISO THAT YOU WOULD SERVE A THREE-YEAR TOUR RATHER THAN A TOUR OF TWO YEARS.

APPARENTLY, YOU ACCEPTED THE OFFER OF THE ASSIGNMENT TO GERMANY IN A MESSAGE DATED AUGUST 18, 1971. BY A TELEGRAM DATED AUGUST 20, 1971, WHICH REFERRED TO YOUR AUGUST 18, 1971, ACCEPTANCE, THE ORDERS ASSIGNING YOU TO MARCH AIR FORCE BASE WERE CANCELLED, AND IT WAS REQUESTED THAT YOU SIGN AN AGREEMENT TO SERVE FOR A THREE-YEAR PERIOD. ALSO, YOU WERE ADVISED THAT YOU WOULD BE ASSIGNED TO THE 2ND GENERAL HOSPITAL ABOUT SEPTEMBER 15, 1971. ADDITIONALLY, INQUIRY WAS MADE AS TO WHETHER YOU HAD STORED YOUR HOUSEHOLD GOODS OR PERFORMED ANY TRAVEL UNDER THE JUNE 17, 1971, ORDER. THE RECORD DOES NOT SHOW ANY RESPONSE TO THIS REQUEST FOR INFORMATION.

BY SPECIAL ORDER AB-8298 DATED SEPTEMBER 13, 1971, HEADQUARTERS, AIR FORCE AIR RESERVE PERSONNEL CENTER, YOU WERE ORDERED TO EXTENDED ACTIVE DUTY EFFECTIVE SEPTEMBER 15, 1971.

THE RECORD INDICATES THAT YOU MADE PERSONAL ARRANGEMENTS WITH PITT AND SCOTT, LIMITED, AND THAT ON AUGUST 25, 1971, YOUR HOUSEHOLD GOODS LOCATED AT OXFORD, ENGLAND, WERE PACKED AND PUT IN STORAGE IN LONDON, ENGLAND, BY THAT FIRM. SUBSEQUENTLY, YOUR GOODS WERE RELEASED TO BULLENS, LIMITED, A GOVERNMENT CONTRACTOR, AND THEY WERE TRANSPORTED TO LANDSTUHL, GERMANY. AFTERWARDS, YOU RECEIVED A BILL FROM PITT AND SCOTT FOR 216 POUNDS, AND WERE INFORMED THAT ALTHOUGH THE BULLENS FIRM HAD RECEIVED 210.98 POUNDS ($548.55) FOR ALL SERVICES REQUIRED IN CONNECTION WITH THE SHIPMENT TO GERMANY, IT HAD REFUSED TO REIMBURSE PITT AND SCOTT, LIMITED, FOR ITS SERVICES, REPORTEDLY BECAUSE OF AN EXCESSIVE DEMAND BY THAT COMPANY.

YOU HAVE INDICATED THAT PRIOR TO AUTHORIZING PITT AND SCOTT, LIMITED, TO PACK AND STORE YOUR HOUSEHOLD GOODS YOU WERE INFORMED AT THE TRAFFIC MANAGEMENT OFFICE AT RAF STATION WEST RUISLIP, ENGLAND, THAT GOVERNMENT SHIPMENT WAS NOT AVAILABLE ON THE BASIS OF YOUR FIRST ORDERS. YOU SAY THAT ON RECEIPT OF ORDERS ASSIGNING YOU TO THE 2ND GENERAL HOSPITAL IN GERMANY YOU LEARNED THAT YOU HAD BEEN ENTITLED TO GOVERNMENT SHIPMENT PRIOR TO THAT TIME.

YOU EXPRESS THE BELIEF THAT BECAUSE OF THE EXPIRATION OF YOUR HOUSE LEASE BEFORE THE RECEIPT OF ORDERS DATED SEPTEMBER 13, 1971, THERE WAS AUTHORITY, BECAUSE OF THE URGENCY INVOLVED IN REMOVING YOUR GOODS FROM THAT LOCATION, TO PERMIT THE SHIPMENT OF YOUR HOUSEHOLD GOODS AT GOVERNMENT EXPENSE PRIOR TO THOSE ORDERS. IN SUMMARY, IT APPEARS TO YOU THAT THE GOVERNMENT SHOULD PAY PITT AND SCOTT FOR ITS SERVICES ON THE BASIS THAT YOU WERE ENTITLED TO GOVERNMENT SHIPMENT PRIOR TO RECEIPT OF ORDERS ASSIGNING YOU TO GERMANY; THAT YOU WERE ERRONEOUSLY INFORMED THAT YOU DID NOT HAVE THIS ENTITLEMENT, AND BECAUSE PITT AND SCOTT PACKED YOUR GOODS FOR SHIPMENT.

SECTION 406(B) OF TITLE 37, U.S.C. PROVIDES IN PERTINENT PART, THAT, SUBJECT TO REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE WHO IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION IS ENTITLED TO TRANSPORTATION OF HIS HOUSEHOLD GOODS (INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE, AND UNPACKING), OR REIMBURSEMENT THEREFOR.

PARAGRAPH M8000-6 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A PERMANENT CHANGE OF STATION INCLUDES THE CHANGE FROM THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY TO THE FIRST PERMANENT DUTY STATION UPON CALL TO ACTIVE DUTY FOR 20 WEEKS OR MORE.

SECTION 406(E) OF TITLE 37 FURTHER PROVIDES THAT WHEN ORDERS DIRECTING A PERMANENT CHANGE OF STATION HAVE NOT BEEN ISSUED, THE SECRETARIES CONCERNED MAY AUTHORIZE THE MOVEMENT OF HOUSEHOLD GOODS OR REIMBURSEMENT THEREFOR. HOWEVER, THIS AUTHORITY MAY BE USED ONLY UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES. PARAGRAPH M8015-1 OF THE JOINT TRAVEL REGULATIONS WHICH IMPLEMENTS THE ABOVE STATUTORY REQUIREMENTS 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.

THIS OFFICE HAS HELD THAT THE TERM "UNUSUAL OR EMERGENCY CIRCUMSTANCES" AS USED IN 37 U.S.C. 406(E) REFERS TO CONDITIONS OF A GENERAL NATURE INCIDENT TO MILITARY OPERATIONS OR MILITARY NEEDS, AND NOT TO CONDITIONS OR NEEDS OF A PERSONAL NATURE. WITHOUT SOME SPECIFIC ELEMENT OF MILITARY NECESSITY OR REQUIREMENT, SUCH AS INVOLUNTARY EXTENSION OF A MILITARY MEMBER'S TOUR OF DUTY FOR REASONS BEYOND HIS CONTROL, THE TERMINATION OF A LEASE BETWEEN HIM AND THE LANDLORD OF LOCAL ECONOMY HOUSING AT AN OVERSEAS LOCATION, IS OF A PERSONAL NATURE AND DOES NOT CONSTITUTE UNUSUAL OR EMERGENCY CIRCUMSTANCES WITHIN THE CONTEMPLATION OF 37 U.S.C. 406(E). SEE B-176567, NOVEMBER 27, 1972 (52 COMP. GEN. 3), COPY ENCLOSED.

THE RECORD CONTAINS THE STATEMENT, WHICH IS REITERATED IN YOUR NOVEMBER 10, 1972, LETTER TO THIS OFFICE, THAT YOU MOVED YOUR HOUSEHOLD GOODS BECAUSE OF THE EXPIRATION OF THE LEASE ON THE PREMISES YOU WERE OCCUPYING IN OXFORD, ENGLAND. ON AUGUST 25, 1971, WHEN YOU MADE PERSONAL ARRANGEMENTS WITH PITT AND SCOTT, LIMITED, TO HAVE YOUR HOUSEHOLD GOODS PACKED AND THEN STORED IN LONDON, ENGLAND, YOU HAD NO AIR FORCE ORDERS AUTHORIZING THE MOVEMENT OF YOUR HOUSEHOLD GOODS, THE ORDERS OF JUNE 17, 1971, HAVING BEEN CANCELLED BY MESSAGE OF AUGUST 20, 1971. SINCE THE PRIMARY PURPOSE OF THE PICKUP OF THE HOUSEHOLD GOODS ON AUGUST 25, 1971, WAS THE EXPIRATION OF YOUR LEASE, A PERSONAL MATTER, THERE IS NO AUTHORITY TO REIMBURSE YOU FOR YOUR EXPENSES WHICH MAY NOT BE CONSIDERED AS INCURRED IN UNUSUAL OR EMERGENCY CIRCUMSTANCES UNDER 37 U.S.C. 406(E). CONSISTENT WITH THIS VIEW, THE AIR FORCE HAS MADE NO DETERMINATION OF MILITARY NECESSITY IN THIS MATTER.

THEREFORE, YOU WERE CORRECTLY ADVISED BY THE TRAFFIC MANAGEMENT OFFICER AT RAF STATION WEST RUISLIP, ENGLAND, THAT YOU SHOULD ARRANGE FOR PICKUP, PACKING AND STORAGE OF THE HOUSEHOLD GOODS AT YOUR OWN EXPENSE SINCE AT THAT TIME THE ORDERS OF JUNE 17, 1971, HAD ALREADY BEEN CANCELLED BY THE MESSAGE OF AUGUST 20, 1971, SO THAT THERE WAS THEN NO AUTHORITY FOR MOVEMENT OF YOUR GOODS AS SUBSEQUENT ORDERS HAD NOT YET BEEN ISSUED. UPON THE ISSUANCE OF ORDERS ON SEPTEMBER 13, 1971, YOU THEN BECAME ENTITLED TO HAVE YOUR HOUSEHOLD GOODS SHIPPED TO YOUR PERMANENT DUTY STATION. THIS THE GOVERNMENT ACCOMPLISHED THROUGH ITS CONTRACTOR, BULLENS, LIMITED, WHICH HAS RECEIVED FULL PAYMENT FOR THE SHIPMENT. THE GOVERNMENT HAS SHIPPED YOUR HOUSEHOLD GOODS AS REQUIRED BY LAW FROM THE PLACE WHERE LOCATED (LONDON, ENGLAND) WHEN YOU BECAME ENTITLED UNDER ORDERS TO SUCH MOVEMENT TO YOUR PERMANENT STATION. UPON SETTLEMENT OF THE DISPUTE BETWEEN BULLENS, LIMITED, AND PITT AND SCOTT, LIMITED, IT APPEARS THAT THE CLAIM OF PITT AND SCOTT FOR SERVICES PERFORMED AT YOUR REQUEST WOULD BE REDUCED BY SUCH AMOUNT. HOWEVER, ANY ADDITIONAL EXPENSES INCURRED WERE OF A PERSONAL NATURE FOR YOUR OWN CONVENIENCE AND MAY NOT BE REIMBURSED BY THE GOVERNMENT.

ACCORDINGLY, THE PRIOR SETTLEMENT DISALLOWING YOUR CLAIM IS SUSTAINED.

WE ARE ADVISING SENATOR JACKSON OF OUR DECISION.