B-197048.OM, APR 1, 1980

B-197048.OM, APR 1, 1980

SUBJECT: RONALD N. ALIG - CLAIM FOR REIMBURSEMENT OF THE COST OF COMMERCIAL AIR FARE WHILE ON EMERGENCY LEAVE - B-197048-O.M.

ASSOCIATE DIRECTOR, FGMSD - CLAIMS GROUP (ROOM 5858):

RETURNED IS FILE Z-2804785, TOGETHER WITH RELATED PAPERS WHICH COMPRISE THE CLAIM OF MR. RONALD N. ALIG. MR. ALIG CLAIMS REIMBURSEMENT FOR THE COST OF COMMERCIAL AIR FARE TO THE UNITED STATES AND RETURN TO HIS DUTY STATION IN JAPAN IN CONNECTION WITH THE DEATH OF HIS FATHER IN JANUARY 1977.

MR. ALIG'S CLAIM WAS DENIED BY CLAIMS DIVISION SETTLEMENT DATED AUGUST 28, 1979, ON THE BASIS THAT, WHILE HE AND HIS DEPENDENTS WERE ELIGIBLE FOR SPACE-AVAILABLE TRAVEL AND HE WAS IMPROPERLY DENIED THAT CATEGORY OF TRAVEL BY RESPONSIBLE GOVERNMENT OFFICIALS, SUCH CIRCUMSTANCES DO NOT AFFORD A BASIS FOR THE PAYMENT OF HIS CLAIM. IT WAS THEN POINTED OUT THAT, IN THE ABSENCE OF A SPECIFIC STATUTE SO PROVIDING, THE GOVERNMENT IS NOT RESPONSIBLE FOR NEGLIGENT OR ERRONEOUS ACTS OR OMISSIONS OF DUTY ON THE PART OF ITS OFFICERS AND EMPLOYEES.

THE RECORD SHOWS THAT MR. ALIG RECEIVED NOTICE OF HIS FATHER'S DEATH ON JANUARY 4, 1977, AND IMMEDIATELY MADE PREPARATIONS TO ENTER ON EMERGENCY LEAVE STATUS FOR PURPOSES OF RETURNING WITH HIS FAMILY TO THE UNITED STATES. CONSISTENT WITH THE PROVISIONS OF CHAPTER 4 OF DEPARTMENT OF DEFENSE REGULATION DOD 4515.13-R (6 FEBRUARY 1975), MR. ALIG CONTACTED THE CIVILIAN PERSONNEL OFFICE IN IWAKUNI, JAPAN, WHERE HE WAS ASSIGNED AND ATTEMPTED TO SECURE SPACE-AVAILABLE TRAVEL FOR HIMSELF AND HIS FAMILY. CIVILIAN PERSONNEL OFFICIALS INFORMED MR. ALIG THAT, IN ACCORDANCE WITH OPNAV INST 4630.25A (16 DECEMBER 1976), HE AND HIS FAMILY WERE AUTHORIZED TO UTILIZE SPACE-AVAILABLE TRAVEL IN THE EMERGENCY SITUATION. THIS REGULATORY INTERPRETATION WAS CONCURRED IN BY THE BASE EXECUTIVE OFFICER AND THE INSTALLATION'S TRANSPORTATION OFFICER. IN ADDITION, MR. ALIG WAS INFORMED THAT AT THE TIME HE WAS TO DEPART JAPAN THERE WAS SEATING IN A SPACE AVAILABLE STATUS ABOARD A MILITARY FLIGHT RETURNING TO THE UNITED STATES WHICH MR. ALIG AND HIS FAMILY COULD HAVE UTILIZED.

MR. ALIG NEXT ATTEMPTED TO SECURE THE AUTHORIZATION OF HIS IMMEDIATE SUPERVISOR WHO WAS IN YOKOSUKA, JAPAN. FOR REASONS NOT TOTALLY CLEAR IN THE RECORD, THE SUPERVISOR DENIED MR. ALIG AND HIS FAMILY AUTHORIZATION FOR SPACE-AVAILABLE TRAVEL ON THE ABOVE NOTED FLIGHT IN CONTRAVENTION OF APPLICABLE REGULATORY PROVISIONS. IN VIEW OF THE EMERGENCY SITUATION AND THE SEVERE TIME RESTRAINT IN REGARD TO EFFECTING ANY ADMINISTRATIVE APPEAL, MR. ALIG WAS FORCED AT HIS EXPENSE TO USE COMMERCIAL AIR TRANSPORTATION FOR THE ROUND TRIP TRAVEL BETWEEN THE OVERSEAS DUTY STATION AND THE UNITED STATES.

AT THE TIME OF HIS EMERGENCY TRAVEL MR. ALIG'S ENTITLEMENT TO SPACE AVAILABLE TRAVEL ABOARD DEPARTMENT OF DEFENSE OWNED OR CONTROLLED AIRCRAFT WAS SET OUT IN DEPARTMENT OF THE NAVY REGULATION OPNAV INST 4630.25A (DECEMBER 16, 1976). THESE PROVISIONS WERE A RESTATEMENT OF DEPARTMENT OF DEFENSE REGULATIONS CONTAINED IN CHAPTER 4, DOD 4515.13-R (NOVEMBER 19, 1976) WHICH ESTABLISHED THE FOLLOWING POLICY IN REGARD TO THE ELIGIBILITY OF PASSENGERS FOR SPACE-AVAILABLE TRANSPORTATION:

"SECTION A - SPACE AVAILABLE POLICY

"4-3. ELIGIBILITY. THE CATEGORIES OF PASSENGERS LISTED IN SECTIONS B THROUGH D MAY BE PERMITTED SPACE-AVAILABLE TRANSPORTATION. THE ORDER IN WHICH THESE CATEGORIES ARE LISTED WILL BE THE NORMAL PRECEDENCE OF MOVEMENT. ***

"SECTION B - TRANSPORTATION OF PASSENGERS BETWEEN THE CONUS AND OVERSEAS AREAS BY DOD-OWNED OR CONTROLLED AIRCRAFT

"4-5. ELIGIBLE PASSENGERS:

"A. CATEGORY 1. EXCEPT AS INDICATED IN (5) BELOW, TRANSPORTATION FROM THE OVERSEAS APOE TO THE CONUS APOD AND RETURN FOR BONA FIDE IMMEDIATE FAMILY EMERGENCIES, AS DETERMINED BY THE SERVICE REGULATIONS, OF A MEMBER OF THE IMMEDIATE FAMILY OF

"(1) US CITIZEN CIVILIAN EMPLOYEES OF THE DOD STATIONED OVERSEAS. OPTION TO UTILIZE SPACE REQUIRED TRAVEL IS AUTHORIZED IN PARAGRAPH 3 3B(3).

"(3) COMMAND-SPONSORED DEPENDENTS OF MEMBERS OF THE MILITARY DEPARTMENTS AND THE COAST GUARD OR OF US CITIZEN CIVILIAN EMPLOYEES OF THE DOD PAID FROM EITHER APPROPRIATED OR NONAPPROPRIATED FUNDS. OPTION TO UTILIZE SPACE REQUIRED TRAVEL IS AUTHORIZED IN PARAGRAPH 3-3B(3). ***"

IN VIEW OF THE CLEAR AUTHORIZING PROVISIONS OF THE GOVERNING REGULATIONS NOTED ABOVE, MR. ALIG AND HIS DEPENDENTS WERE ELIGIBLE FOR SPACE-AVAILABLE TRAVEL AND SUCH TRAVEL WAS AVAILABLE AT THE TIME IN QUESTION. HOWEVER, MR. ALIG'S IMMEDIATE SUPERVISOR DID NOT APPROVE HIS TRAVEL ORDERS, APPARENTLY BASED ON UNFAMILIARITY WITH THE RECENT CHANGE IN THE APPLICABLE REGULATIONS AND IN APPARENT DISREGARD FOR THE AVAILABLE ADVICE OF THE CIVILIAN PERSONNEL OFFICE AT IWAKUNI. HENCE, MR. ALIG WAS DENIED A BENEFIT FOR WHICH HE WAS ELIGIBLE UNDER AGENCY REGULATIONS, AND HE WAS REQUIRED TO PROCEED WITH COMMERCIAL TRANSPORTATION.

WE RECOGNIZE IN THE MAJORITY OF CASES INVOLVING ERRONEOUS ADVICE OR INFORMATION GIVEN BY EMPLOYEES OF THE GOVERNMENT, THAT THE GOVERNMENT IS NOT BOUND BY NOR RESPONSIBLE FOR SUCH ERRONEOUS ADVICE. HOWEVER, PERFUNCTORY APPLICATION OF SUCH A RULE IS INAPPROPRIATE IN MR. ALIG'S CASE. HAVING PROVIDED A BENEFIT FOR A CLASS OF INDIVIDUALS, NAMELY, SPACE -AVAILABLE TRAVEL FOR QUALIFYING EMPLOYEES IN AN EMERGENCY STATUS, AND RECOGNIZING THE EXTREME MENTAL HARDSHIP ATTENDANT UPON SUCH INDIVIDUALS WHO NEITHER ANTICIPATE NOR WELCOME SUCH SUDDEN AND UNCOMFORTABLE STATUS, WE DO NOT PERCEIVE ANY CIRCUMSTANCES UNDER WHICH THE GOVERNMENT WOULD BENEFIT FROM HAVING SUCH REGULATORY PROVISIONS SELECTIVELY ENFORCED.

WE BELIEVE THAT THE WITHHOLDING OF THE BENEFIT OF SPACE-AVAILABLE TRANSPORTATION THROUGH THE ERRONEOUS REFUSAL TO GRANT TRAVEL ORDERS AS CONTEMPLATED BY THE GOVERNING REGULATIONS, AMOUNTED IN THIS CASE TO ARBITRARY AND CAPRICIOUS CONDUCT ALBEIT PERHAPS UNINTENTIONALLY SO ON THE PART OF THE AUTHORIZING OFFICIAL.

ACCORDINGLY, IN THE CIRCUMSTANCES OF MR. ALIG'S CLAIM, HE MAY BE REIMBURSED FOR THE CONSTRUCTIVE COST OF 1977 SPACE-AVAILABLE TRANSPORTATION BY DOD-OWNED OR CONTROLLED AIRCRAFT PURSUANT TO DOD 4515.13 -R, FOR HIS TRAVEL AND THAT OF HIS QUALIFYING DEPENDENTS FROM TOKYO TO SAN FRANCISCO AND THAT RETURN TRANSPORTATION, NOT TO EXCEED THE APPLICABLE COMMERCIAL RATE ACTUALLY INCURRED.