B-177043, FEB 27, 1973, 52 COMP GEN 552

B-177043, FEB 27, 1973, 52 COMP GEN 552

TRANSPORTATION - HOUSEHOLD EFFECTS - MILITARY PERSONNEL - WEIGHT LIMITATION - OVERSEAS ASSIGNMENT SINCE UNDER 37 U.S.C. 406, THE DEFENSE DEPARTMENT SECRETARIES HAVE BROAD AUTHORITY TO RESTRICT THE ENTITLEMENT OF MEMBERS OF THE UNIFORMED SERVICES TO SHIPMENT OF HOUSEHOLD GOODS BETWEEN A DUTY STATION IN THE UNITED STATES AND AN OVERSEAS DUTY STATION, INCLUDING THAT PORTION OF THE SHIPMENT WITHIN THE CONTINENTAL UNITED STATES, THEY HAVE THE AUTHORITY TO AMEND PARAGRAPH M8003-2 OF THE JOINT TRAVEL REGULATIONS TO PRESCRIBE THAT EXCESS CHARGES FOR SHIPMENT OF HOUSEHOLD GOODS TO AND FROM AN OVERSEAS AREA THAT PROVIDES GOVERNMENT-OWNED FURNITURE SHOULD BE BASED FOR THE PORTION OF THE SHIPMENT WITHIN THE UNITED STATES ONLY ON THE WEIGHT ABOVE THAT PRESCRIBED FOR A MEMBER'S RANK OR GRADE, A PROVISION WHICH WILL BE IN ADDITION TO THE WEIGHT LIMITATION APPLICABLE TO THE OVERSEAS PORTION. HOWEVER, ANY PROPOSED REVISION SHOULD BE PROSPECTIVE AND SHOULD CONSIDER THE CONGRESSIONAL EXPRESSION OF POLICY IN THE LEGISLATIVE HISTORY OF THE DEFENSE DEPARTMENT APPROPRIATION ACT, 1973, RESPECTING THE COST OF SHIPPING MEMBERS' POSSESSIONS OVERSEAS.

TO THE SECRETARY OF THE AIR FORCE, FEBRUARY 27, 1973:

WE REFER FURTHER TO LETTER DATED AUGUST 24, 1972, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE (MANPOWER AND RESERVE AFFAIRS), FORWARDED HERE BY LETTER OF SEPTEMBER 1, 1972, FROM THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE (CONTROL NO. 72-42), REQUESTING A DECISION REGARDING A PROPOSED REVISION OF PARAGRAPH M8003-2 OF THE JOINT TRAVEL REGULATIONS.

IN HIS LETTER THE ASSISTANT SECRETARY OF THE AIR FORCE REFERS TO DEPARTMENT OF DEFENSE (DOD) INSTRUCTION 4165.43 WHICH RESTRICTS THE WEIGHT OF HOUSEHOLD GOODS THAT MAY BE SHIPPED AT GOVERNMENT EXPENSE TO 2,000 POUNDS NET WEIGHT (EXCLUSIVE OF HOLD BAGGAGE) OR 25% OF A MEMBER'S AUTHORIZED WEIGHT ALLOWANCE, WHICHEVER IS GREATER, WHEN SHIPMENT IS TO AN AREA WHERE GOVERNMENT-OWNED FURNITURE IS PROVIDED. EFFECTIVE JULY 1, 1972, THE INSTRUCTION WAS REVISED TO PERMIT SHIPMENT OF A MEMBER'S FULL HOUSEHOLD GOODS WEIGHT ALLOWANCE, LESS THE WEIGHT OF HOUSEHOLD GOODS ALREADY PLACED IN NONTEMPORARY STORAGE IN THE UNITED STATES, FROM OVERSEAS AREAS HAVING AN ADMINISTRATIVE WEIGHT RESTRICTION.

THE ASSISTANT SECRETARY INDICATES THAT QUESTION HAS ARISEN AS TO WHETHER EXCESS CHARGES ON THE WEIGHT OF HOUSEHOLD GOODS EXCEEDING THE ADMINISTRATIVE WEIGHT LIMITATION SHOULD BE COMPUTED ON THE BASIS OF THE THROUGH RATE FROM A MEMBER'S OLD PERMANENT DUTY STATION IN THE UNITED STATES TO HIS NEW PERMANENT DUTY STATION OUTSIDE THE UNITED STATES, OR WHETHER THE EXCESS CHARGES SHOULD BE APPLIED ONLY TO THAT PORTION OF THE DISTANCE FROM THE PORT OF EMBARKATION TO THE OVERSEAS DUTY STATION. ADDITIONALLY, THE QUESTION OF WHETHER TO APPLY THE EXCESS CHARGES TO THE "WITHIN UNITED STATES" PORTION OF SHIPMENTS FROM OVERSEAS AREAS WHERE THE ADMINISTRATIVE RESTRICTION APPLIED PRIOR TO JULY 1, 1972, ALSO IS RAISED.

IT APPEARS TO BE THE VIEW OF THE ASSISTANT SECRETARY THAT THE 2,000 POUND OR 25% ADMINISTRATIVE WEIGHT LIMITATION DOES NOT APPLY TO THE MOVEMENT OF HOUSEHOLD GOODS WITHIN THE UNITED STATES, SINCE THERE IS NO BASIS TO DENY A MEMBER HIS LAWFUL ENTITLEMENT TO SHIPMENT OF ANY OF HIS PRESCRIBED WEIGHT ALLOWANCE WITHIN THE UNITED STATES, INCIDENT TO AN ORDERED CHANGE OF PERMANENT STATION BETWEEN THE UNITED STATES AND AN OVERSEAS DUTY STATION WHERE AN ADMINISTRATIVE WEIGHT LIMITATION IS IN EFFECT. THEREFORE, IT APPEARS TO HIM THAT EXCESS COSTS ARE CHARGEABLE TO A MEMBER FOR MOVEMENT OF HIS HOUSEHOLD GOODS WITHIN THE UNITED STATES ONLY WHEN HE EXCEEDS THE PRESCRIBED WEIGHT ALLOWANCE FOR HIS RANK OR GRADE.

CONSEQUENTLY, IT IS PROPOSED TO REVISE PARAGRAPH M8003-2 OF THE JOINT TRAVEL REGULATIONS TO PROVIDE THAT EXCESS CHARGES WILL BE BASED ONLY ON THE WEIGHT ABOVE THAT PRESCRIBED FOR THE MEMBER'S RANK OR GRADE ON THAT PORTION OF THE SHIPMENT INSIDE THE UNITED STATES. HOWEVER, BEFORE THIS REVISION IS INITIATED, OUR OPINION REGARDING THIS MATTER IS REQUESTED.

SECTION 406, TITLE 37, U.S. CODE, PROVIDES IN PART AS FOLLOWS:

(B) IN CONNECTION WITH A CHANGE OF TEMPORARY OR PERMANENT STATION, A MEMBER IS ENTITLED TO TRANSPORTATION (INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE, AND UNPACKING) OF BAGGAGE AND HOUSEHOLD EFFECTS, OR REIMBURSEMENT THEREFOR, WITHIN SUCH WEIGHT ALLOWANCES PRESCRIBED BY THE SECRETARIES CONCERNED, WITHOUT REGARD TO THE COMPARATIVE COSTS OF THE VARIOUS MODES OF TRANSPORTATION.

(C) THE ALLOWANCES AND TRANSPORTATION AUTHORIZED BY SUBSECTIONS (A) AND (B) OF THIS SECTION ARE IN ADDITION TO THOSE AUTHORIZED BY SECTIONS 404 AND 405 OF THIS TITLE AND ARE -

(1) SUBJECT TO SUCH CONDITIONS AND LIMITATIONS;

(2) FOR SUCH GRADES, RANKS, AND RATINGS; AND

(3) TO AND FROM SUCH PLACES; PRESCRIBED BY THE SECRETARIES CONCERNED.***

(D) THE NONTEMPORARY STORAGE OF BAGGAGE AND HOUSEHOLD EFFECTS MAY BE AUTHORIZED ***. HOWEVER, THE WEIGHT OF BAGGAGE AND HOUSEHOLD EFFECTS STORED, PLUS THE WEIGHT OF THE BAGGAGE AND HOUSEHOLD EFFECTS TRANSPORTED, IN CONNECTION WITH A CHANGE OF STATION MAY NOT BE MORE THAN THE MAXIMUM WEIGHT LIMITATIONS IN REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED WHEN IT IS NOT OTHERWISE FIXED BY LAW.***

DOD INSTRUCTION 4165.43IV.D., AUGUST 7, 1970(CHANGE 1, MAY 14, 1971), PROVIDES AS FOLLOWS:

7. WEIGHT LIMITATIONS TO AREAS WHERE GOVERNMENT FURNISHINGS ARE PROVIDED, IN WHOLE OR IN PART, ARE AS FOLLOWS:

A. RESTRICTIONS OR LIMITATIONS APPLIED TO THE SHIPMENT OF PERSONAL HOUSEHOLD GOODS IN CONTEMPLATION OF THE PROVISION OF GOVERNMENT-OWNED FURNISHINGS IN EITHER PUBLIC OR PRIVATE QUARTERS WILL IN ALL INSTANCES BE CONSTRUED AS A REDUCTION IN THE MAXIMUM NET WEIGHT TO BE SHIPPED BY ALL PERSONNEL BEING TRANSPORTED TO THE SELECTED AREA. UNDER THESE CONDITIONS THE MAXIMUM ENTITLEMENT OF INDIVIDUAL PERSONNEL WILL BE TWO THOUSAND NET POUNDS (2,000 LBS.) OR TWENTY FIVE PERCENT (25%) OF THE PRESCRIBED JTR WEIGHT ALLOWANCE, WHICHEVER IS GREATER, EXCLUSIVE OF UNACCOMPANIED BAGGAGE, WHENEVER FULL FURNISHINGS ARE PROVIDED. INCREASES IN THIS ALLOWANCE ARE AUTHORIZED IN DIRECT PROPORTION TO THE AMOUNT (WEIGHT) OF PERSONALLY OWNED FURNISHINGS REQUIRED, IN LIEU OF UNAVAILABLE GOVERNMENT FURNISHINGS, PROVIDED THAT IN NO EVENT SHALL THE WEIGHT OF HOUSEHOLD FURNISHINGS STORED PLUS THE WEIGHT OF HOUSEHOLD FURNISHINGS TRANSPORTED BE MORE THAN THE MAXIMUM WEIGHT CURRENTLY ENTITLED BY LAW.

B. HOUSEHOLD GOODS WEIGHT LIMITATIONS IN CONNECTION WITH RETURN SHIPMENTS FROM OVERSEAS AREAS TO THE UNITED STATES OR TO OTHER UNRESTRICTED AREAS AT GOVERNMENT EXPENSE BY GOVERNMENT BILL OF LADING, SHALL NOT EXCEED THE FULL HOUSEHOLD GOODS LIMITATION LESS THE AMOUNT (WEIGHT) OF HOUSEHOLD GOODS ALREADY PLACED IN NONTEMPORARY STORAGE IN THE UNITED STATES.

(D) THE PROVISION OF SUBPARAGRAPH 7.B., ABOVE, IS EFFECTIVE JULY 1, 1972. PRIOR TO THAT DATE HOUSEHOLD GOODS WEIGHT LIMITATIONS IN CONNECTION WITH RETURN SHIPMENTS FROM OVERSEAS AREAS TO THE UNITED STATES, OR TO OTHER UNRESTRICTED AREAS, AT GOVERNMENT EXPENSE, SHALL NOT EXCEED THE WEIGHT LIMITATIONS APPLICABLE TO THE OVERSEAS SHIPMENT.

PARAGRAPH M8003-1, JOINT TRAVEL REGULATIONS, PRESCRIBES THE WEIGHT ALLOWANCES AUTHORIZED FOR EACH GRADE OR RATING INCIDENT TO TEMPORARY AND PERMANENT CHANGE OF STATION ORDERS FOR MEMBERS OF THE UNIFORMED SERVICES. PARAGRAPH M8003-2 OF THE REGULATIONS (CHANGE 233, EFFECTIVE JULY 1, 1972) IMPLEMENTS THE ABOVE-QUOTED DOD INSTRUCTION AND PROVIDES AS FOLLOWS:

ADMINISTRATIVE WEIGHT RESTRICTIONS. FOR SHIPMENTS OF HOUSEHOLD GOODS AND PERSONAL EFFECTS AT GOVERNMENT EXPENSE INCIDENT TO PERMANENT CHANGE OF- STATION ORDERS TO OVERSEAS STATIONS DESIGNATED BY THE SERVICE CONCERNED WHERE EITHER PUBLIC QUARTERS OR PRIVATE HOUSING IS FURNISHED WITH GOVERNMENT-OWNED FURNISHINGS, THE AUTHORIZED WEIGHT ALLOWANCE FOR ALL MEMBERS EXCEPT MEMBERS ON DUTY WITH UNITED STATES DEFENSE ATTACHES WILL BE LIMITED TO 2,000 POUNDS (NET WEIGHT) OR 25% (NET WEIGHT) OF THE MAXIMUM PERMANENT CHANGE-OF-STATION WEIGHT ALLOWANCE PRESCRIBED IN SUBPAR. WHICHEVER IS GREATER, EXCLUSIVE OF THE WEIGHT OF UNACCOMPANIED BAGGAGE, WHENEVER FULL FURNISHINGS ARE PROVIDED.*** THE PROVISIONS OF THIS SUBPARAGRAPH WILL NOT APPLY TO SHIPMENTS MADE TO OTHER UNRESTRICTED OVERSEAS AREAS OR RETURN SHIPMENTS MADE TO THE UNITED STATES ON PERMANENT CHANGE-OF-STATION ORDERS WITH AN EFFECTIVE DATE ON OR AFTER 1 JULY 1972, UNDER WHICH CONDITIONS THE HOUSEHOLD GOODS SHIPMENT WEIGHT ALLOWANCE WILL BE THE MAXIMUM PERMANENT CHANGE-OF STATION WEIGHT ALLOWANCE PRESCRIBED IN SUBPAR. 1, LESS THE WEIGHT OF HOUSEHOLD GOODS IN NONTEMPORARY STORAGE.***

UNDER THE AUTHORITY VESTED IN THE SECRETARIES BY THE PROVISIONS OF 37 U.S.C. 406, THEY MAY ESTABLISH CONDITIONS AND LIMITATIONS, MAKE DISTINCTIONS BY GRADE OR RANK, AND MAY PRESCRIBE THE PLACES TO AND FROM WHICH THE TRANSPORTATION OF HOUSEHOLD EFFECTS, INCLUDING REIMBURSEMENT THEREFOR, MAY BE AUTHORIZED TO MEMBERS IN CONNECTION WITH THEIR CHANGES OF STATION. CONSEQUENTLY, WEIGHT ALLOWANCES HAVE BEEN ESTABLISHED BY GRADE OR RANK FOR TEMPORARY AND PERMANENT CHANGES OF STATION (PAR. M8003-1, JTR), SUBJECT TO FURTHER RESTRICTION WHERE INCIDENT TO PERMANENT CHANGES OF STATION TO CERTAIN OVERSEAS LOCATIONS GOVERNMENT FURNISHINGS ARE PROVIDED FOR USE IN GOVERNMENT OR PRIVATE HOUSING (PAR. M8003-2, JTR).

SUBSEQUENT TO THE RECEIPT OF THE ASSISTANT SECRETARY'S LETTER OF AUGUST 24, 1972, THE AUTHORITY PROVIDED IN PARAGRAPH M8003-2 OF THE REGULATIONS TO PERMIT SHIPMENT OF A MEMBER'S FULL HOUSEHOLD GOODS WEIGHT ALLOWANCE FROM OVERSEAS AREAS HAVING THE ADMINISTRATIVE WEIGHT RESTRICTION HAS BEEN RESCINDED. SEE JOINT DETERMINATION NO. 119-72 DATED DECEMBER 8, 1972, OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, WHICH REVISED THAT PORTION OF PARAGRAPH M8003-2, EFFECTIVE JANUARY 1, 1973(CHANGE NO. 240 OF THE JOINT TRAVEL REGULATIONS). THUS, THE AUTHORITY TO SHIP HOUSEHOLD GOODS AT GOVERNMENT EXPENSE AT THE MEMBER'S MAXIMUM WEIGHT ALLOWANCE FROM AN OVERSEAS AREA, AS DESCRIBED IN PARAGRAPH M8003-2, REMAINED IN EFFECT ONLY FOR THE PERIOD JULY 1, 1972, TO DECEMBER 31, 1972.

IT APPEARS THAT THIS CHANGE IN POLICY BY THE DEPARTMENT OF DEFENSE STEMMED FROM THE INSISTENCE OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, AS INDICATED ON PAGES 76 AND 77 OF HOUSE REPORT NO. 92- 1389 DATED SEPTEMBER 11, 1972, TO ACCOMPANY H.R. 16593 WHICH BECAME THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1973. (86 STAT. 1184.) IT IS REPORTED IN PERTINENT PART ON PAGES 76 AND 77 AS FOLLOWS:

ON JULY 1, 1972, DESPITE A REQUEST BY THE COMMITTEE TO REFRAIN, THE DOD IMPLEMENTED NEW POLICIES WITH RESPECT TO THE SHIPMENT OF HOUSEHOLD GOODS. PRIOR TO JULY 1, A MEMBER WAS LIMITED TO 2,000 POUNDS OR 25 PERCENT OF THE PRESCRIBED PERMANENT CHANGE OF STATION (PCS) ALLOWANCE ON HOUSEHOLD GOODS SHIPPED FROM OVERSEAS AREAS WHERE GOVERNMENT FURNISHINGS ARE PROVIDED IN QUARTERS. IN MOST CASES (E-7 AND ABOVE) THE LIMITATION WAS MORE THAN 2,000 POUNDS, I.E. 2,500 FOR A FIRST LIEUTENANT, 3,375 FOR A COLONEL. UNDER THE NEW POLICY THE MILITARY MEMBER CAN RETURN TO THE UNITED STATES THE FULL HOUSEHOLD GOODS LIMITATION LESS THE AMOUNT OF HOUSEHOLD GOODS HE MAY HAVE IN NONTEMPORARY STORAGE IN THE UNITED STATES. THUS, THE MEMBER CAN RETURN TO THE UNITED STATES, EVEN IF HE DID NOT TAKE ANYTHING OUT OF THE COUNTRY FROM 7,000 POUNDS (FOR AN E-4) TO 24,000 POUNDS (FOR A GENERAL). THE AVERAGE WOULD PROBABLY BE ABOUT 10,000 POUNDS. THE DOD HAS ESTIMATED THE COST OF THIS POLICY CHANGE TO BE $12,000,000 IN FISCAL YEAR 1973.

THE EFFECT OF THIS INCREASED HOUSEHOLD GOODS ALLOWANCE IS, OF COURSE, AN IMMEDIATE COST INCREASE IN PCS CHARGES AND PROVIDES MILITARY PERSONNEL WITH A GOOD REASON TO BUY FOREIGN MADE FURNITURE AND OTHER POSSESSIONS FOR SHIPMENT TO THE UNITED STATES. THIS POLICY WILL FURTHER UPSET OUR POOR TRADE BALANCE AND MOST CERTAINLY COST THE UNITED STATES HEAVILY IN BALANCE OF PAYMENTS TRANSACTIONS.***.

IN ORDER TO PRECLUDE AN INJUSTICE WITH RESPECT TO INDIVIDUAL SERVICE MEMBERS, THE COMMITTEE HAS INCLUDED FUNDS IN THIS BILL TO FINANCE THIS CHANGE IN POLICY THROUGH DECEMBER 31, 1972, AT WHICH TIME THE DOD IS DIRECTED TO RETURN TO THE PREVIOUS POLICIES WITH RESPECT TO THE SHIPMENT OF FOREIGN AUTOMOBILES AND HOUSEHOLD GOODS.

WE ARE OF THE VIEW THAT UNDER THE BROAD AUTHORITY IN 37 U.S.C. 406 THE SECRETARIES HAVE AUTHORITY TO RESTRICT A MEMBER'S ENTITLEMENT BY AN ADMINISTRATIVE WEIGHT LIMITATION COVERING SHIPMENT OF HOUSEHOLD GOODS MADE BETWEEN A DUTY STATION IN THE UNITED STATES AND AN OVERSEAS DUTY STATION, INCLUDING THAT PORTION OF THE SHIPMENT WITHIN THE CONTINENTAL UNITED STATES. FURTHER, IN THE LIGHT OF SUCH BROAD AUTHORITY, WE BELIEVE THE REGULATIONS CAN BE AMENDED TO PROVIDE THAT EXCESS CHARGES FOR SHIPMENT OF HOUSEHOLD GOODS TO OR FROM AN OVERSEAS AREA TO WHICH THE ABOVE-MENTIONED ADMINISTRATIVE RESTRICTION APPLIES WOULD BE BASED ONLY ON THE WEIGHT ABOVE THAT PRESCRIBED FOR A MEMBER'S RANK OR GRADE ON THAT PORTION OF THE SHIPMENT INSIDE THE UNITED STATES.

ANY SUCH AMENDMENT TO THE REGULATIONS SHOULD BE PROSPECTIVE ONLY, SINCE IT IS WELL SETTLED THAT WHEN REGULATIONS ARE ISSUED RIGHTS THEREUNDER BECOME FIXED AND THEY MAY NOT BE AMENDED RETROACTIVELY, EXCEPT TO CORRECT OBVIOUS ERRORS. WE RECOGNIZE THAT FOR THE PERIOD JULY 1, 1972, THROUGH DECEMBER 31, 1972, THE REGULATIONS AUTHORIZED SHIPMENT FROM THE OVERSEAS DUTY STATION TO A DUTY STATION IN THE UNITED STATES BASED ON THE WEIGHT PRESCRIBED FOR A MEMBER'S RANK OR GRADE. THE REGULATIONS DURING THAT PERIOD, HOWEVER, REQUIRED EXCESS COSTS FOR SHIPMENTS TO THE OVERSEAS AREAS TO WHICH THE ADMINISTRATIVE WEIGHT LIMITATION APPLIED TO BE COMPUTED ON THE BASIS OF THE THROUGH RATE FROM THE MEMBER'S OLD PERMANENT DUTY STATION IN THE UNITED STATES.

NOTWITHSTANDING THE ABOVE, WE ARE AWARE THAT IN VIEW OF THE ABOVE STATEMENT OF THE HOUSE APPROPRIATIONS COMMITTEE IT MAY WELL BE IT HAS BEEN DETERMINED ADMINISTRATIVELY NOT TO AMEND THE REGULATIONS OTHER THAN AS ALREADY ACCOMPLISHED BY THE AMENDMENT EFFECTIVE JANUARY 1, 1973.