B-178962, FEB 4, 1974

B-178962, FEB 4, 1974

WHERE ARMY OFFICER CLAIMED REIMBURSEMENT UNDER MERITORIOUS CLAIMS ACT OF 1928, FOR TUITION COSTS PAID FOR ENROLLING HIS UNDERAGE DAUGHTER FOR REMAINDER OF SCHOOL TERM IN TEXAS PUBLIC SCHOOL AFTER HIS TRANSFER FROM MARYLAND, WHERE SHE ATTENDED PUBLIC SCHOOL, CLAIM SUBMITTED IN CONNECTION THEREWITH DOES NOT CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO WARRANT SUBMISSION TO CONGRESS AS MERITORIOUS CLAIM.

TO CAPT. JACK A. NUNN:

REFERENCE IS MADE TO YOUR CLAIM FOR REIMBURSEMENT OF SCHOOL TUITION IN THE AMOUNT OF $123.95 FOR YOUR DAUGHTER INCIDENT TO YOUR PERMANENT CHANGE OF STATION FROM ABERDEEN PROVING GROUND, MARYLAND, TO LONGHORN ARMY AMMUNITION PLANT, MARSHALL, TEXAS. YOUR CLAIM WAS FORWARDED TO THE TRANSPORTATION AND CLAIMS DIVISION OF OUR OFFICE BY THE FIELD SERVICES OFFICE, FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS, INDIANA, FOR CONSIDERATION UNDER THE PROVISIONS OF THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236.

IT IS ADMINISTRATIVELY REPORTED THAT YOU PROPERLY ENTERED YOUR DAUGHTER, TERESA NUNN, IN SCHOOL WHILE YOU WERE STATIONED AT ABERDEEN PROVING GROUND, IN ACCORD WITH SCHOOL REGULATIONS. NEAR THE END OF THE SCHOOL YEAR YOU WERE REASSIGNED TO LONGHORN ARMY AMMUNITION PLANT, TEXAS, UNDER ORDERS OF JANUARY 24, 1972, WITH A REPORTING DATE OF APRIL 3, 1972.

IT IS FURTHER REPORTED THAT UNDER THE REGULATIONS OF THE MARSHALL (TEXAS) PUBLIC SCHOOLS, YOUR DAUGHTER WAS NOT ELIGIBLE TO ENROLL IN THE PUBLIC SCHOOL SYSTEM BECAUSE HER SIXTH BIRTHDAY (SEPTEMBER 3, 1971) WAS TWO DAYS AFTER THE CUT-OFF DATE (SEPTEMBER 1) FOR ADMITTANCE ESTABLISHED BY THE SCHOOL SYSTEM'S REGULATIONS. SHE COULD, HOWEVER, BE ENROLLED AS AN "INELIGIBLE PUPIL" UPON THE PAYMENT OF TUITION AT THE RATE OF $3.35 PER DAY. YOU ENROLLED YOUR DAUGHTER ON SUCH BASIS FOR THE REMAINDER OF THE SCHOOL YEAR, APRIL 5 TO MAY 25, 1972 (37 SCHOOL DAYS), AND PAID TUITION FOR SUCH PERIOD IN THE AMOUNT OF $123.95, FOR WHICH YOU SEEK REIMBURSEMENT.

SINCE THE LAW AND REGULATIONS AFFORD NO LEGAL BASIS FOR PAYMENT OF TUITION COSTS IN SITUATIONS SUCH AS HERE INVOLVED, YOUR CLAIM WAS FORWARDED HERE FOR CONSIDERATION UNDER THE PROVISIONS OF THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236.

THE MERITORIOUS CLAIMS ACT PROVIDES THAT WHEN A CLAIM AGAINST THE UNITED STATES IS FILED IN THIS OFFICE THAT MAY NOT BE LAWFULLY ADJUSTED BY USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM IN OUR JUDGMENT CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, IT SHALL BE SUBMITTED TO THE CONGRESS WITH OUR RECOMMENDATIONS. THE REMEDY IS AN EXTRAORDINARY ONE AND ITS USE IS LIMITED TO EXTRAORDINARY CIRCUMSTANCES.

WE DO NOT CONSIDER YOUR CLAIM TO HAVE ELEMENTS OF EQUITY OF AN UNUSUAL NATURE. WHILE WE APPRECIATE THE CIRCUMSTANCES PROMPTING YOU TO ENROLL YOUR DAUGHTER IN THE TEXAS PUBLIC SCHOOL SYSTEM AS AN "INELIGIBLE PUPIL" WITH ATTENDANT TUITION COSTS, THERE ARE NUMEROUS CASES WHERE MEMBERS HAVE BEEN PUT TO ADDITIONAL PERSONAL EXPENSE INCIDENT TO CHANGES OF STATION.

SINCE WE ARE OF THE OPINION THAT YOUR CLAIM DOES NOT CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD WARRANT REPORTING IT TO THE CONGRESS UNDER THE MERITORIOUS CLAIMS ACT OF 1928, NO ACTION WILL BE TAKEN TO REPORT THE CLAIM TO THE CONGRESS FOR CONSIDERATION.