B-185387, MAR 24, 1976

B-185387, MAR 24, 1976

1. A MEMBER WHO RECEIVES PERMANENT CHANGE OF STATION ORDERS IS ENTITLED, PURSUANT TO SUCH ORDERS, TO TRANSPORT HIS PERSONAL BAGGAGE AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE TO THE LIMIT AUTHORIZED FOR HIS GRADE, EVEN THOUGH HE IS NOT ENTITLED TO AN ALLOWANCE FOR TRAVEL AND TRANSPORTATION OF HIS DEPENDENTS AND THEIR HOUSEHOLD GOODS. 37 U.S.C. 406(B). 2. A MEMBER WHO RECEIVES PERMANENT CHANGE OF STATION ORDERS IS ENTITLED, PURSUANT TO SUCH ORDERS, TO TRANSPORT HIS PERSONAL BAGGAGE AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE TO THE LIMIT AUTHORIZED FOR HIS GRADE, FOR RETURN TO HIS OLD STATION WHERE HIS PERMANENT CHANGE OF STATION ORDERS HAVE BEEN CANCELLED AND HIS BAGGAGE AND HOUSEHOLD GOODS WERE TRANSPORTED INITIALLY AS A RESULT OF THE ORIGINAL PCS ORDERS. 37 U.S.C. 406A.

A1/C MICHAEL JOSEPH WILLIAMS:

THIS IS IN RESPONSE TO A REQUEST BY AIRMAN FIRST CLASS MICHAEL J. WILLIAMS, SSAN XXX-XX-XXXX, FOR CONSIDERATION OF HIS CLAIM FOR REIMBURSEMENT OF EXPENSES INCURRED WHEN HE RELOCATED HIS FAMILY AND TRANSPORTED HOUSEHOLD GOODS INCIDENT TO AN ORDERED PERMANENT CHANGE OF STATION (PCS) ASSIGNMENT FROM LORING AIR FORCE BASE, MAINE, TO APO 96287 (WOOMERA, AUSTRALIA).

THE RECORD INDICATES THAT THE MEMBER, FOLLOWING RECEIPT OF PCS ORDERS, MOVED HIS WIFE AND CHILD FROM BASE HOUSING AT LORING AIR FORCE BASE, MAINE, TO BETHEL, CONNECTICUT, AND REPORTED, AS DIRECTED, TO TRAVIS AIR FORCE BASE, CALIFORNIA, FOR TRANSPORTATION TO HIS NEW STATION IN AUSTRALIA. WHILE AWAITING TRANSPORTATION AT TRAVIS AIR FORCE BASE, HIS ORDERS WERE CANCELLED AND HE WAS ORDERED BACK TO LORING AIR FORCE BASE. THE MEMBER, UPON HIS RETURN TO LORING AIR FORCE BASE, FILED A CLAIM IN THE AMOUNT OF $866.52 WHICH REPRESENTED HIS COSTS FOR DEPENDENT TRAVEL AND SHIPMENT OF HOUSEHOLD GOODS DUE TO THE CANCELLATION OF HIS PCS ORDERS.

THE MATTER OF HIS CLAIM WAS THE SUBJECT OF A SETTLEMENT BY OUR TRANSPORTATION AND CLAIMS DIVISION (NOW CLAIMS DIVISION) DATED JUNE 11, 1975, WHICH DISALLOWED HIS CLAIM FOR THE REASON THAT UNDER THE PROVISIONS OF THE JOINT TRAVEL REGULATIONS (JTR) HE WAS NOT AN ELIGIBLE GRADE TO ENTITLE HIM TO DEPENDENT TRAVEL OR SHIPMENT OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE IN EXCESS OF 225 POUNDS FOR HIS PERSONAL GOODS. THE MEMBER ALSO ASKED FOR CONSIDERATION OF HIS CLAIM UNDER THE PROVISIONS OF THE MERITORIOUS CLAIMS ACT OF 1928 SINCE IT APPEARED THAT THERE WAS NO LEGAL AUTHORITY UNDER WHICH HIS CLAIM COULD BE ALLOWED.

STATUTORY AUTHORITY FOR PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES FOR DEPENDENTS AND FOR SHIPMENT OF HOUSEHOLD GOODS FOR ALL MEMBERS OF THE UNIFORMED SERVICES WHO ARE ORDERED TO MAKE A CHANGE OF PERMANENT STATION IS CONTAINED IN SECTION 406 OF TITLE 37, UNITED STATES CODE. HOWEVER, SUBSECTION (C) OF THAT SECTION AUTHORIZES THE SECRETARY CONCERNED TO PRESCRIBE REGULATIONS TO LIMIT SUCH ALLOWANCES UNDER CERTAIN CONDITIONS AND LIMITATIONS; FOR SUCH GRADES, RANKS AND RATINGS; AND TO AND FROM SUCH PLACES AS HE MAY PRESCRIBE. PURSUANT TO THAT AUTHORITY, PARAGRAPH M7000 OF THE JTR PROVIDES GENERALLY THAT DEPENDENTS OF MEMBERS ON PCS ASSIGNMENT MAY BE TRANSPORTED AT GOVERNMENT EXPENSE, BUT SUBPARAGRAPH M7000-1 HAS EXCLUDED FROM SUCH ENTITLEMENT, DEPENDENTS OF ENLISTED MEMBERS IN PAY GRADE E-4 (WITH 2 YEARS' SERVICE OR LESS), E-3, E-2, AND E-1.

WHILE AS A MATTER OF LAW, THERE IS NO AUTHORITY TO AUTHORIZE TRAVEL AND TRANSPORTATION OF THE MEMBER'S DEPENDENTS AND HOUSEHOLD GOODS BECAUSE THE MEMBER WAS NOT OF AN ELIGIBLE GRADE, IT APPEARS THAT THE MEMBER SHOULD HAVE BEEN AUTHORIZED TRANSPORTATION OF HIS OWN HOUSEHOLD GOODS AND BAGGAGE FOR SHIPMENT FROM LORING AIR FORCE BASE, MAINE, TO BETHEL, CONNECTICUT, AND RETURN.

SUBSECTION (B) OF SECTION 406 OF TITLE 37, U.S.C. AUTHORIZES TRANSPORTATION OF BAGGAGE AND HOUSEHOLD EFFECTS, OR REIMBURSEMENT THEREFORE, WITHIN SUCH WEIGHT ALLOWANCES AS PRESCRIBED BY THE SECRETARY CONCERNED FOR A MEMBER OF THE UNIFORMED SERVICES IN CONNECTION WITH A CHANGE OF TEMPORARY OR PERMANENT STATION. SECTION 406A OF TITLE 37, U.S.C. AUTHORIZES TRAVEL AND TRANSPORTATION ALLOWANCES FOR MEMBERS OF A UNIFORMED SERVICE UNDER SECTION 406 FOR TRANSPORTATION OF BAGGAGE AND HOUSEHOLD EFFECTS, IF OTHERWISE QUALIFIED, WHEN ORDERS ARE CANCELLED, REVOKED OR MODIFIED. SEE IN THIS CONNECTION, PARAGRAPH M8014 OF THE JTR'S.

THE WEIGHT ALLOWANCE AUTHORIZED FOR AN E-3, AS SET FORTH IN PARAGRAPH M8003 OF THE JTR IS 225 POUNDS. THE WEIGHT ALLOWANCES SPECIFIED IN PARAGRAPH M8003 ARE EXCLUSIVE OF BAGGAGE THAT IS TRANSPORTED FREE OF CHARGE ON A COMMERCIAL TICKET. SEE JTR PARAGRAPH M-8002.

IT DOES NOT APPEAR FROM THE RECORD THAT THE MEMBER RECEIVED ANY ALLOWANCE FOR TRANSPORTATION OF HIS OWN HOUSEHOLD GOODS UPON RECEIVING HIS ORIGINAL PCS ORDERS OR UPON CANCELLATION OF THOSE ORDERS. THE RECORD INDICATES THAT HE TRAVELED BY PRIVATE AUTOMOBILE FROM LORING AIR FORCE BASE, MAINE, TO BETHEL, CONNECTICUT, AND BY COMMERCIAL AIRLINE FROM BETHEL, CONNECTICUT, TO TRAVIS AIR FORCE BASE, CALIFORNIA. UPON HIS RETURN WHEN THE PCS ORDERS WERE CANCELLED, HE AGAIN TRAVELED BY COMMERCIAL AIRLINE FROM TRAVIS AIR FORCE BASE, CALIFORNIA, TO BETHEL, CONNECTICUT, AND BY PRIVATE AUTOMOBILE FROM BETHEL, CONNECTICUT, TO LORING AIR FORCE BASE, MAINE. THE RECORD INDICATES THAT THE ONLY ITEMS FOR WHICH THE MEMBER WAS REIMBURSED WERE FOR HIS PERSONAL TRANSPORTATION EXPENSES FROM LORING AIR FORCE BASE, MAINE, TO TRAVIS AIR FORCE BASE, CALIFORNIA, AND RETURN, A TOTAL OF $535.52. THERE IS NO INDICATION THAT ANY OF THIS REIMBURSEMENT INCLUDED ANY EXPENSE FOR MOVEMENT OF HIS OWN BAGGAGE AND HOUSEHOLD EFFECTS MOVED TO BETHEL, CONNECTICUT.

ACCORDINGLY, THE MEMBER MAY BE REIMBURSED FOR THE TRANSPORTATION OF HIS OWN BAGGAGE AND HOUSEHOLD EFFECTS FROM LORING AIR FORCE BASE, MAINE, TO BETHEL, CONNECTICUT, AND RETURN, NOT TO EXCEED 225 POUNDS.

THE MERITORIOUS CLAIMS ACT PROVIDES THAT WHEN A CLAIM 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 COINSIDERATION OF 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.

THE CASES REPORTED FOR THE CONSIDERATION OF THE CONGRESS GENERALLY INVOLVE EQUITABLE CIRCUMSTANCES OF AN UNUSUAL NATURE AND WHICH ARE UNLIKELY TO CONSTITUTE A RECURRING PROBLEM, SINCE TO REPORT TO THE CONGRESS A PARTICULAR CASE WHEN SIMILAR EQUITIES EXIST OR ARE LIKELY TO ARISE WITH RESPECT TO OTHER CLAIMANTS WOULD CONSTITUTE PREFERENTIAL TREATMENT OVER OTHERS IN SIMILAR CIRCUMSTANCES.

UNDOUBTEDLY OTHER JUNIOR ENLISTED MEMBERS (E-4 WITH LESS THAN 2 YEARS' SERVICE AND BELOW), HAVE FOUND THEMSELVES IN SIMILAR SITUATIONS. SO LONG AS THE MILITARY SERVICES RETAIN SUCH JUNIOR ENLISTED MEMBERS WITH DEPENDENTS, OR ALLOW MEMBERS WITH DEPENDENTS TO ENLIST, SUCH SITUATIONS WILL CONTINUE TO ARISE. THEREFORE, WE FIND THE CLAIM TO BE NEITHER UNUSUAL NOR A NONRECURRING SITUATION.

FOR THE REASONS STATED ABOVE, WE FIND NO ELEMENT OF UNUSUAL LEGAL LIABILITY OR EQUITY WHICH WOULD JUSTIFY US REPORTING IT TO THE CONGRESS FOR ITS CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT.

A SETTLEMENT WILL ISSUE TO PAY AIRMAN WILLIAMS THE TRAVEL AND TRANSPORTATION ALLOWANCE FOUND DUE UNDER THIS DECISION.