B-198268.OM, JUN 11, 1980

B-198268.OM, JUN 11, 1980

SUBJECT: JOSEPH A. ALBICOCCO, USN - CLAIM FOR REIMBURSEMENT OF COST FOR COMMERCIALLY SHIPPING A PRIVATELY OWNED VEHICLE - Z-2817365 - B-198268 O.M.

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

RETURNED IS CLAIM FILE Z-2817365. THE RECORD DISCLOSES THAT ON SEPTEMBER 18, 1978, THE NAVY MEMBER, JOSEPH A. ALBICOCCO, RECEIVED ORDERS FOR A PERMANENT CHANGE OF STATION FROM VALLEJO, CALIFORNIA, TO PEARL HARBOR, HAWAII. SUBSEQUENTLY, ON OCTOBER 2, 1978, HE RECEIVED A LETTER OF GREETING FROM HIS NEW COMMANDER AT PEARL HARBOR WHICH INFORMED HIM, AMONG OTHER THINGS, THAT GENERALLY AN AUTOMOBILE WAS ESSENTIAL FOR TRANSPORTATION ON THE ISLAND OF HAWAII. THE LETTER FURTHER ADVISED HIM THAT IF HE INTENDED TO SHIP A VEHICLE, HE SHOULD DO SO PROMPTLY AS SHIPPING TIME WOULD BE 3 WEEKS OR MORE.

MR. ALBICOCCO INDICATES THAT UPON DISCUSSING HIS TRANSFER WITH A FELLOW NAVY MEMBER, HE WAS INFORMED THAT A BILL WAS TO BE SIGNED ON OCTOBER 17, 1978, WHICH WOULD ENTITLE HIM TO SHIP HIS PRIVATELY OWNED VEHICLE (POV) AT GOVERNMENT EXPENSE. HE THEN CALLED APPROPRIATE NAVY PERSONNEL TO VERIFY THIS AND WAS TOLD THAT NO ONE HAD KNOWLEDGE OF SUCH A BILL. BASED ON THIS INFORMATION, THE CLAIMANT SHIPPED HIS POV AT HIS OWN EXPENSE TO HAWAII ON OCTOBER 18, 1978, APPROXIMATELY 4 WEEKS PRIOR TO HIS REPORTING DATE.

MR. ALBICOCCO'S TRANSFER WAS CANCELLED IN NOVEMBER 1978 AND THE NAVY SHIPPED HIS POV BACK AT GOVERNMENT EXPENSE. SUBSEQUENTLY, THE MEMBER SOUGHT REIMBURSEMENT OF HIS COSTS OF SHIPPING HIS POV TO HAWAII ON THE BASIS OF A CHANGE TO 1 JOINT TRAVEL REGULATIONS (1 JTR), PARA. M11002 (CHANGE 311, JANUARY 1, 1979) EFFECTIVE OCTOBER 17, 1978.

PURSUANT TO 10 U.S.C. 2634 (1976) PARA. M11002 ENTITLES CERTAIN MEMBERS WHO ARE TRANSFERRED TO PLACES OUTSIDE THE CONTERMINOUS UNITED STATES TO SHIPMENT OF A POV AT GOVERNMENT EXPENSE. THE REGULATIONS REQUIRE THAT THE SHIPMENT OF THE POV BE ON A GOVERNMENT-OWNED CARRIER OR ON A GOVERNMENT- PROCURED CARRIER. IF, HOWEVER, A MEMBER SHIPS A POV ON A COMMERCIAL CARRIER AT HIS OWN EXPENSE BECAUSE OF ERRONEOUS ADVICE FURNISHED BY A GOVERNMENT REPRESENTATIVE, HE IS ENTITLED TO RECEIVE REIMBURSEMENT UP TO THE COST WHICH THE NAVY WOULD HAVE INCURRED HAD THE GOVERNMENT ARRANGED THE SHIPMENT. 1 JTR, PARA. M11007-1 (CHANGE 305, JULY 1, 1978), AND 51 COMP.GEN. 838 (1972). MR. ALBICOCCO, THEREFORE, ALLEGES THAT HE IS ENTITLED TO REIMBURSEMENT AS CHANGE 311 WAS MADE RETROACTIVELY EFFECTIVE AND GAVE HIM AN ENTITLEMENT AND ERRONEOUS INFORMATION CAUSED HIM TO BE DENIED THIS ENTITLEMENT.

MR. ALBICOCCO IS CORRECT THAT 1 JTR, PARA. M11002 WAS AMENDED BY CHANGE 311, JANUARY 1, 1979, SO AS TO ENTITLE A MEMBER IN HIS STATUS (I.E., PAY GRADE E-4 WITH LESS THAN 2 YEARS' SERVICE) TO A SHIPMENT OF HIS POV WHEREAS THE PREDECESSOR REGULATION PRECLUDED THIS IN 1 JTR, PARA. M11001 (CHANGE 283, SEPTEMBER 1, 1976). MR. ALBICOCCO IS ALSO CORRECT THAT THIS CHANGE WAS BROUGHT ABOUT BY THE PASSAGE OF A BILL, THE DEPARTMENT OF DEFENSE APPROPRIATION ACT FOR FISCAL YEAR 1979, PUBLIC LAW 95-457, 92 STAT. 1231, WHICH BECAME LAW ON OCTOBER 13, 1978. THIS ACT INCREASED FUNDING FOR RELOCATION TRAVEL SO THAT THE SERVICES COULD EXTEND THE ENTITLEMENT TO SHIP A POV TO LOWER GRADE MEMBERS. SEE B-193879, OCTOBER 18, 1979.

IT APPEARS THAT MR. ALBICOCCO'S INQUIRY TO THE NAVY ABOUT HIS ENTITLEMENT TO SHIPMENT OF HIS POV WAS MADE SOMETIME BETWEEN OCTOBER 2, 1978, WHEN HE RECEIVED THE LETTER FROM HIS NEW COMMANDING OFFICER, AND OCTOBER 18, 1978, WHEN HE SHIPPED HIS POV. THE APPROPRIATTION ACT WAS SIGNED ON OCTOBER 13, 1978, AND THE REGULATION WAS CHANGED EFFECTIVE OCTOBER 17, 1978. WHILE THE ADVICE MR. ALBICOCCO RECEIVED CONCERNING HIS ENTITLEMENT TECHNICALLY MAY NOT HAVE BEEN ERRONEOUS, IN VIEW OF THE PUBLICITY THE MATTER OF EXTENDING THIS ENTITLEMENT TO JUNIOR ENLISTED MEMBERS RECEIVED AT THAT TIME, IT SEEMS INCONGRUOUS THAT THE NAVY OFFICIALS HE CONTACTED WERE UNAWARE OF THE IMPENDING CHANGE IN ENTITLEMENT. IT WOULD APPEAR THAT THEY SHOULD HAVE AT LEAST ADVISED HIM THAT THE CHANGE IN ENTITLEMENT WAS IMMINENT AND TO WAIT AND NOT SHIP HIS POV HIMSELF. APPARENTLY HE DID NOT RECEIVE SUCH ADVICE, AND HE SHIPPED HIS POV AT HIS OWN EXPENSE THE DAY AFTER THE ENTITLEMENT BECAME EFFECTIVE.

THUS, CONSIDERING THE NOTICE HE RECEIVED FROM HIS NEW COMMANDING OFFICER AS TO THE NECESSITY OF HAVING A POV IN HAWAII AND THE ESTIMATED LENGTH OF TIME IT TAKES TO SHIP A POV TO HAWAII, IT WOULD APPEAR THAT MR. ALBICOCCO TOOK ALL REASONABLE STEPS TO A CERTAIN HIS ENTITLEMENT; AND BECAUSE OF LACK OF INFORMATION ON THE PART OF NAVY PERSONNEL, HE INCURRED THE COMMERCIAL COSTS FOR SHIPMENT OF HIS POV. ACCORDINGLY, UNDER THE PROVISIONS OF 1 JTR, PARA. M11007-1, MR. ALBICOCCO IS ENTITLED TO BE REIMBURSED UP TO THE COSTS THE NAVY WOULD HAVE INCURRED HAD THE GOVERNMENT ARRANGED THE SHIPMENT.

IN REACHING THIS CONCLUSION, WE NOTE THAT THE ALLOWANCE OF THIS CLAIM DOES NOT VIOLATE THE RULE THAT AN AMENDMENT TO A REGULATION MAY NOT BE APPLIED RETROACTIVELY EXCEPT TO CORRECT OBVIOUS ERROR. SEE GENERALLY 56 COMP.GEN. 1015, 1016-1017 (1977), AND CITATIONS THEREIN; AND B-193171, FEBRUARY 28, 1979. ALTHOUGH CHANGE 311 WAS NOT ISSUED UNTIL JANUARY 1, 1979, THE CHANGE IT MADE IN PARAGRAPH M11002 WAS EFFECTIVE AS OF OCTOBER 17, 1978, BECAUSE THE DEPARTMENT OF DEFENSE ISSUED A BULLETIN SPECIFYING THE CHANGE IN PARA. M11002 ON OCTOBER 17, 1978. SEE 33 COMP.GEN. 505 (1954).