B-164095, MAY 16, 1968

B-164095, MAY 16, 1968

TO CAPTAIN ALSTON M. BOYD:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 10, 1968, REQUESTING REVIEW OF THE SETTLEMENT OF MARCH 28, 1968, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE AMOUNT COLLECTED FROM YOU AS THE COST OF SHIPPING AN EXCESS WEIGHT OF HOUSEHOLD EFFECTS. ALSO, WE HAVE RECEIVED AN INQUIRY FROM THE HONORABLE DAN KUYKENDALL, HOUSE OF REPRESENTATIVES, WITH REGARD TO YOUR CLAIM.

YOUR HOUSEHOLD EFFECTS WERE SHIPPED INCIDENT TO BUREAU OF NAVAL PERSONNEL ORDER 026427 DATED APRIL 6, 1960, WHICH DETACHED YOU FROM DUTY IN TAIWAN, RELIEVED YOU FROM ALL ACTIVE DUTY EFFECTIVE JUNE 30, AND TRANSFERRED YOU TO THE RETIRED LIST OF THE UNITED STATES NAVY ON JULY 1, 1960. YOUR HOUSEHOLD EFFECTS WERE SHIPPED FROM TAIWAN TO NON TEMPORARY STORAGE IN OAKLAND, CALIFORNIA, IN THREE LOTS BY SEAVAN. A FOURTH LOT WAS CONTINUED IN NON-TEMPORARY STORAGE IN NEW ORLEANS, LOUISIANA.

YOUR AUTHORIZED WEIGHT ALLOWANCE UNDER PARAGRAPH M8002 OF THE JOINT TRAVEL REGULATIONS IN EFFECT AT THAT TIME WAS 11,000 POUNDS. SINCE THE FIRST SHIPMENT WAS DETERMINED TO HAVE A NET WEIGHT OF 5,880 POUNDS, THE SECOND, 3,895 POUNDS, AND THE THIRD, 3,629 POUNDS, YOU EXCEEDED YOUR AUTHORIZED WEIGTH ALLOWANCE ON THE THIRD SHIPMENT AND THE CONTINUED NON- TEMPORARY STORAGE OF THE FOURTH LOT BEYOND 12 MONTHS WAS ENTIRELY EXCESS.

THE COST OF SHIPPING AND/OR STORING HOUSEHOLD EFFECTS IN EXCESS OF YOUR AUTHORIZED WEIGHT ALLOWANCE WAS COMPUTED AS FOLLOWS:

POUNDS EXCESS COST

SHIPMENT NO. 1, 6,190 LBS. LESS 5 PERCENT (310 LBS.) 5,880

SHIPMENT NO. 2, 4,100 LBS. LESS 5 PERCENT (205 LBS.) 3,895

SHIPMENT NO. 3, 3,820 LBS. LESS 5 PERCENT (191 LBS.) 3,629

------ NET SHIPPED 13,404 NET AUTHORIZED11,000

------ NET EXCESS 2,404 PLUS 5.263 PERCENT PACKING 127

------ GROSS EXCESS2,531

TRANSPORTATION, 2,531 LBS. AT $32.75 PER CWT. $828.90

ENTIRELY EXCESS, CONTINUED

NON-TEMPORARY STORAGE 12 MONTHS,

220 LBS. AT $0.35 CWT. P/M 9.24

TOTAL EXCESS COST $838.14

YOUR EFFECTS WHICH WERE SHIPPED TO OAKLAND REMAINED IN NON-TEMPORARY STORAGE AT GOVERNMENT EXPENSE UNTIL JUNE 30, 1961. AFTER THAT THEY CONTINUED IN STORAGE AT YOUR EXPENSE AND APPARENTLY WERE NOT REMOVED AND UNPACKED UNTIL NOVEMBER 1965. AT THAT TIME YOU HAD SHIPMENTS NOS. 2 AND 3 REWEIGHED AT YOUR EXPENSE. ON MAY 11, 1966, YOU SUBMITTED TO THE NAVY WEIGHT CERTIFICATES SHOWING THAT THE NET WEIGHT OF SHIPMENT NO. 2 AFTER UNPACKING WAS 3,460 POUNDS AND THE NET WEIGHT OF SHIPMENT NO. 3 AFTER UNPACKING WAS 3,420 POUNDS. YOU DEDUCTED THE NET (UNPACKED) WEIGHT OF 6,880 POUNDS (3,460 PLUS 3,420) FROM THE GROSS (BILL OF LADING) WEIGHT OF 7,920 POUNDS (4,100 PLUS 3,820) AND CONTENDED THAT THE DIFFERENCE OR 1,040 POUNDS WAS DUE TO PACKING AND CRATING. ALSO, YOU FURNISHED A LIST OF PROFESSIONAL BOOKS AND PAPERS INCLUDED IN YOUR SHIPMENTS AND A STATEMENT DATED FEBRUARY 24, 1966, FROM A NAVY INSPECTOR AT OAKLAND SHOWING THE WEIGHT OF THE VARIOUS ITEMS DECLARED BY YOU TO BE IN THAT CATEGORY AND A TOTAL WEIGHT OF 1,112 POUNDS.

YOUR CLAIM FOR REFUND OF THE AMOUNT COLLECTED FROM YOU BY THE NAVY AS EXCESS COST IS BASED ON YOUR CONTENTION THAT THE PACKING AND CRATING WAS EXCESSIVE, AND THAT YOU HAD NOT BEEN GIVEN CREDIT FOR THE INCLUSION OF PROFESSIONAL BOOKS, PAPERS AND EQUIPMENT. YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT OF MARCH 28, 1968, FOR THE REASONS STATED THEREIN.

IN YOUR PRESENT LETTER YOU PARTICULARLY QUESTION THE STATEMENT IN THE SETTLEMENT THAT ALTHOUGH THE REWEIGHING OF YOUR EFFECTS INDICATED THAT YOUR GOODS WEIGHED 1,040 POUNDS LESS THAN SHOWN ON THE BILLS OF LADING THIS OFFICE IS NOT IN A POSITION TO DETERMINE THAT THE EXCESS WAS DUE TO THE MATERIALS USED IN PACKING AND CRATING.

THE TRANSPORTATION OF HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES IS GOVERNED BY JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO 37 U.S.C. 406. PARAGRAPHS M8001 AND M8002 OF THOSE REGULATIONS IN EFFECT AT THE TIME HERE INVOLVED PRESCRIBED THE WEIGHT ALLOWANCES, DESIGNATED AS NET WEIGHTS, FOR SHIPMENT BY MEMBERS UPON CHANGE OF PERMANENT STATION PLUS PERCENTAGE INCREASE FOR VARIOUS TYPES OF SHIPMENTS TO ALLOW FOR PACKING AND CRATING. A 5 PERCENT INCREASE WAS ALLOWED BY THE REGULATIONS FOR PACKING AND CRATING IN SHIPMENTS MADE BY SEA VAN. UNDER THE REGULATIONS THE COST OF SHIPPING NET WEIGHT (GROSS WEIGHT SHOWN ON BILL OF LADING LESS PERCENTAGE ALLOWANCE FOR PACKING) IN EXCESS OF THE AUTHORIZED ALLOWANCE IS CHARGEABLE TO THE MEMBER. THAT WAS DONE IN YOUR CASE.

PARAGRAPH M8001-3 OF THE JOINT TRAVEL REGULATIONS IN EFFECT WHEN YOUR SHIPMENTS WERE MADE PROVIDED THAT IN INSTANCES WHERE, THROUGH NO FAULT OF THE MEMBER, THE TARE WEIGHT OF A SHIPMENT IS IN EXCESS OF THE ALLOWANCES PRESCRIBED THE CASE MAY BE REFERRED TO THE PROPER AUTHORITY OF THE UNIFORMED SERVICE CONCERNED FOR AUTHORITY TO DEVIATE FROM THE ALLOWANCE. UNDER THE REGULATIONS THE PROPER AUTHORITY OF THE UNIFORMED SERVICE AND NOT THIS OFFICE MAY AUTHORIZE DEVIATIONS FROM THE ALLOWANCES. THE CLAIMS DIVISION SETTLEMENT HAD REFERENCE TO THESE PROVISIONS.

THE RECORD SHOWS THAT ALL THE EVIDENCE IN YOUR CLAIM INCLUDING THE REWEIGHING BY YOU AFTER UNPACKING WAS CONSIDERED BY THE DEPARTMENT OF THE NAVY AND THAT IT DID NOT RECOMMEND AN ADJUSTMENT IN THE PRESCRIBED ALLOWANCES. THEREFORE, THERE IS NO BASIS FOR THE ALLOWANCE BY THIS OFFICE OF ANY PORTION OF YOUR CLAIM BASED ON YOUR ALLEGATION OF OVERPACKING.

WITH RESPECT TO THE PORTION OF YOUR CLAIM THAT RELATES TO THE INCLUSION OF PROFESSIONAL BOOKS, PAPERS AND EQUIPMENT IN YOUR HOUSEHOLD EFFECTS, PARAGRAPH M8003 OF THE JOINT TRAVEL REGULATIONS IN EFFECT AT THE TIME PROVIDED THAT A MEMBER MAY SHIP PROFESSIONAL BOOKS, PAPERS AND EQUIPMENT REQUIRED IN THE PERFORMANCE OF HIS DUTY UPON CHANGE OF STATION WITHOUT CHARGE AGAINST HIS WEIGHT ALLOWANCE.

THE RECORD SHOWS THAT WHEN YOU APPLIED FOR SHIPMENT OF YOUR HOUSEHOLD EFFECTS YOU STATED THAT YOUR EFFECTS INCLUDED APPROXIMATELY 1,100 POUNDS OF PROFESSIONAL BOOKS, PAPERS AND EQUIPMENT. THE LIST PREPARED BY A NAVY INSPECTOR WHEN YOUR EFFECTS WERE UNPACKED INCLUDES 43 PICTURE FRAMES, VASES AND STATUES, CHINESE MUSICAL INSTRUMENTS, AN EASEL AND 10 DRAFTING BOARDS HAVING A TOTAL WEIGHT OF 529 POUNDS. IT APPEARS FROM YOUR MEMORANDUM OF FEBRUARY 24, 1966, THAT THESE ITEMS WERE NOT USED BY YOU IN THE PERFORMANCE OF YOUR DUTY BUT RELATE TO YOUR WIFE'S ACTIVITIES AS AN UNPAID VOLUNTARY MEMBER OF VARIOUS ART COMMITTEES ESTABLISHED BY THE UNITED STATES AND CHINESE GOVERNMENTS TO PROMOTE CULTURAL PROGRAMS.

WHILE YOUR WIFE'S ACTIVITIES MAY HAVE SERVED THE INTEREST OF THE UNITED STATES AND TO THAT EXTENT COMPLEMENTED YOUR POSITION AS CHIEF, NAVY SECTION, MILITARY ASSISTANCE ADVISORY GROUP AT TSOYING, TAIWAN, WE MAY NOT REGARD THE ITEMS ASSOCIATED WITH HER ACTIVITIES AS BEING PROFESSIONAL BOOKS, PAPERS AND EQUIPMENT REQUIRED BY YOU IN THE PERFORMANCE OF YOUR DUTY WITHIN THE MEANING OF THE REGULATIONS SO AS TO ENTITLE YOU TO SHIPMENT WITHOUT CHARGE AGAINST YOUR WEIGHT ALLOWANCE. THE OTHER 583 POUNDS OF THE ITEMS DELCARED BY YOU AND LISTED BY THE INSPECTOR AS PROFESSIONAL BOOKS, ETC., WILL BE SO ACCEPTED FOR THE PURPOSE OF THE REGULATIONS. ACCORDINGLY, YOU ARE ENTITLED TO A CREDIT FOR THAT WEIGHT. ON THAT BASIS THE NET EXCESS WEIGHT IS REDUCED TO 1,821 POUNDS (2,404 LESS 583) AND THE EXCESS COST IS RECOMPUTED AS FOLLOWS:

POUNDS EXCESS COST NET EXCESS

1,821 PLUS 5.263 PERCENT 96

------ GROSS EXCESS 1,917 TRANSPORTATION 1,917 LBS. $627.82 $32.75 PER CWT. EXCESS STORAGE

9.24

TOTAL EXCESS COST $637.06

SINCE THE EXCESS COST IS RECOMPUTED AS $637.06 AND $838.14 WAS COLLECTED FROM YOU, YOU ARE ENTITLED TO REFUND IN THE AMOUNT OF $201.08 AND A SETTLEMENT FOR THAT AMOUNT WILL ISSUE IN DUE COURSE.