B-143982, JAN. 18, 1962

B-143982, JAN. 18, 1962

TO MR. JOHN G. BLOOMFIELD:

YOUR LETTER OF NOVEMBER 21, 1961, REQUESTS FURTHER CONSIDERATION OF YOUR INDEBTEDNESS TO THE UNITED STATES FOR THE EXCESS COST OF THE PACKING AND CRATING OF YOUR HOUSEHOLD EFFECTS INCIDENT TO YOUR TRANSFER OVERSEAS IN JULY 1956 AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY; AND, YOUR CLAIM (ARISING OUT OF THE SAME TRANSACTION) FOR THE EXPENSES OF STORAGE FOR YOUR HOUSEHOLD EFFECTS INCLUDING PROFESSIONAL BOOKS.

THE RECORD SHOWS THAT YOU WERE AUTHORIZED TO TRANSPORT YOUR DEPENDENTS AND 8,750 POUNDS OF HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE IN CONNECTION WITH YOUR TRANSFER FROM FORT SAM HOUSTON, TEXAS, TO TOKYO, JAPAN, IN JULY 1956. THROUGH A MISUNDERSTANDING ALL YOUR HOUSEHOLD EFFECTS TOTALING 13,688 POUNDS WERE CRATED AND PACKED WHICH OF COURSE EXCEEDED THE LIMITATION OF 8,750 POUNDS AUTHORIZED IN YOUR ORDERS. PROTRACTED CORRESPONDENCE ENSUED BETWEEN YOU AND THE COMMANDING OFFICER OF THE FOURTH ARMY AT FORTH SAM HOUSTON IN AN ATTEMPT TO DETERMINE WHICH OF THE BOXES AND CRATES OF HOUSEHOLD EFFECTS COULD BE SHIPPED WITHIN THE MAXIMUM WEIGHT LIMITATION. HOWEVER, BEFORE THE EFFECTS TO BE SHIPPED WERE SEGREGATED YOUR RIGHT TO SHIP YOUR HOUSEHOLD EFFECTS WAS TERMINATED BY THE PROVISIONS OF ARMY CIVILIAN PAY REGULATION T 3.5-6F, WHICH REGULATION PRECLUDES THE SHIPMENT OF HOUSEHOLD EFFECTS FOR EMPLOYEES WHO HAVE LESS THAN ONE YEAR REMAINING UNDER THEIR OVERSEAS TRANSPORTATION AGREEMENT. SINCE SHIPMENT OF YOUR EFFECTS WAS NOT ACCOMPLISHED THE DEPARTMENT OF THE ARMY SUBSEQUENTLY MADE DEMAND UPON YOU FOR REFUND OF $1,151.85. THIS AMOUNT REPRESENTS THE ACTUAL COST OF THE PACKING AND CRATING EFFECTED, LESS ONE PERCENT DISCOUNT. ON JANUARY 17, 1961, B-143982, OUR OFFICE HELD THAT THE COST OF PACKING AND CRATING YOUR HOUSEHOLD EFFECTS UP TO THE AUTHORIZED WEIGHT LIMITATION PROPERLY COULD BE MADE BY THE GOVERNMENT. THEREUPON, YOUR INDEBTEDNESS WAS REDUCED TO $415.54 REPRESENTING THE EXCESS WEIGHT OF 4,938 POUNDS. ON NOVEMBER 21, 1961, OUR OFFICE ADVISED YOU OF CERTAIN OTHER ALLOWABLE EXPENSES IN THE AMOUNT OF $216.56, REPRESENTING THE HAULING, UNPACKING, AND UNCRATING OF 8,750 POUNDS OF HOUSEHOLD EFFECTS, WHICH REDUCED YOUR INDEBTEDNESS TO $198.98.

IN VIEW OF THE SUMMATION ABOVE, YOUR CLAIM FOR 17 MONTHS STORAGE IN THE AMOUNT OF $760.50 WAS DISALLOWED.

YOU NOW FEEL THAT YOU ARE ENTITLED TO THE AMOUNT CLAIMED ON THE BASIS OF EQUITY. IN THAT CONNECTION, YOU ARE ADVISED, THAT ALTHOUGH INDIVIDUALS MAY RECOGNIZE MORAL OR EQUITABLE OBLIGATIONS AND SURRENDER THEIR RIGHTS, OFFICIALS REPRESENTING THE GOVERNMENT DO NOT HAVE THAT FREEDOM OF ACTION. B-86349, FEBRUARY 16, 1950. MATTERS, SUCH AS ARE HERE INVOLVED, ARE REQUIRED BY LAW TO BE ADJUSTED IN ACCORDANCE WITH THE FACTS IN THE INDIVIDUAL CASE AND THE STATUTES AND REGULATIONS APPLICABLE THERETO.

THE STATUTORY AUTHORITY FOR THE PAYMENT OF TRANSPORTATION EXPENSES, INCLUDING THOSE ATTACHED TO THE MOVEMENT OF HOUSEHOLD EFFECTS, FOR EMPLOYEES ASSIGNED TO OVERSEAS POSTS OF DUTY IS CONTAINED IN 5 U.S.C. 73B- 3 (A). THE PROVISIONS OF EXECUTIVE ORDER NO. 9805, AS AMENDED, GOVERN THE ALLOWANCES FOR STORAGE, PACKING, UNPACKING, ETC.,OF EMPLOYEES' HOUSEHOLD EFFECTS, AND PROVIDE FOR MAXIMUM LIMITATIONS. NO BASIS EXISTS TO PERMIT AN EMPLOYEE TO EXCEED THOSE LIMITATIONS; HENCE, BECAUSE OF THOSE LIMITATIONS, YOU WERE ALLOWED ONLY THE LEGAL MAXIMUM.

WHILE THE CIRCUMSTANCES SURROUNDING THE MATTER ARE UNFORTUNATE, ANY FAULT WHICH YOU ATTRIBUTE TO OFFICERS OF THE GOVERNMENT AND THEIR AGENTS CANNOT BE THE BASIS FOR AFFORDING RELIEF BECAUSE IT IS A WELL SETTLED RULE THAT IN THE ABSENCE OF EXPRESS STATUTORY PROVISION THEREFOR THE GOVERNMENT IS NOT LIABLE FOR LOSS OR DAMAGES RESULTING FROM THE NEGLIGENCE OR WRONGFUL ACTS OF ITS OFFICERS AND EMPLOYEES. GERMAN BANK V. UNITED STATES, 148 U.S. 573.

REGARDING YOUR REQUEST THAT THE GOVERNMENT WAIVE YOUR INDEBTEDNESS, YOU ARE ADVISED THAT, IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING, NO OFFICER OF THE GOVERNMENT HAS AUTHORITY TO GIVE AWAY OR SURRENDER A RIGHT VESTED IN OR ACQUIRED BY THE GOVERNMENT. SIMPSON V. UNITED STATES, 172 U.S. 372.

IN VIEW OF THE ABOVE COMMENTS, WE FIND NO LEGAL AUTHORITY UNDER WHICH YOUR INDEBTEDNESS MAY BE FURTHER MODIFIED OR EXTINGUISHED; HENCE, NO BASIS EXISTS FOR THE ALLOWANCE OF YOUR CLAIM.