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B-207950, FEB 8, 1983

B-207950 Feb 08, 1983
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DIGEST: SERVICE MEMBER CLAIMS REFUND OF THE SHIPPING CHARGES COLLECTED FROM HIM FOR THE EXCESS WEIGHT OF HIS HOUSEHOLD GOODS ON THE BASIS THAT THE ADMINISTRATIVE REGULATIONS DIRECTING THAT HIS HOUSEHOLD GOODS BE REWEIGHED WERE NOT FOLLOWED. HIS CLAIM MAY NOT BE ALLOWED IN THE ABSENCE OF SOME OTHER EVIDENCE THAT THE WEIGHT OF THE GOODS WAS IN ERROR SINCE REGULATIONS REQUIRING REWEIGH ARE PROCEDURAL IN NATURE AND DO NOT GOVERN ENTITLEMENTS. SINCE THE WEIGHT OF THE HOUSEHOLD GOODS WAS ESTABLISHED AT ORIGIN AND SINCE NO ERROR IN SUCH WEIGHT IS ALLEGED OR SHOWN. THE DENIAL IS SUSTAINED. A CAPTAIN AT THE TIME HE WAS TRANSFERRED. WAS AUTHORIZED A WEIGHT ALLOWANCE OF 11. THE RECORD INDICATES THAT MAJOR EIFF WAS AWARE OF A POSSIBLE OVERWEIGHT IN HIS SHIPMENT OF HOUSEHOLD GOODS AND THAT HE INFORMED THE TRAFFIC MANAGEMENT OFFICE IN TEHRAN.

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B-207950, FEB 8, 1983

DIGEST: SERVICE MEMBER CLAIMS REFUND OF THE SHIPPING CHARGES COLLECTED FROM HIM FOR THE EXCESS WEIGHT OF HIS HOUSEHOLD GOODS ON THE BASIS THAT THE ADMINISTRATIVE REGULATIONS DIRECTING THAT HIS HOUSEHOLD GOODS BE REWEIGHED WERE NOT FOLLOWED. HIS CLAIM MAY NOT BE ALLOWED IN THE ABSENCE OF SOME OTHER EVIDENCE THAT THE WEIGHT OF THE GOODS WAS IN ERROR SINCE REGULATIONS REQUIRING REWEIGH ARE PROCEDURAL IN NATURE AND DO NOT GOVERN ENTITLEMENTS. SINCE THE WEIGHT OF THE HOUSEHOLD GOODS WAS ESTABLISHED AT ORIGIN AND SINCE NO ERROR IN SUCH WEIGHT IS ALLEGED OR SHOWN, THAT WEIGHT MUST BE USED IN DETERMINING THE MEMBER'S LIABILITY.

MAJOR ARTHUR D. EIFF, USAF:

MAJOR ARTHUR D. EIFF, USAF, REQUESTS RECONSIDERATION OF OUR CLAIMS GROUP'S NOVEMBER 23, 1981 DENIAL OF HIS CLAIM FOR REFUND OF EXCESS TRANSPORTATION CHARGES IN THE AMOUNT OF $768.60 PAID BY HIM FOR EXCEEDING HIS AUTHORIZED WEIGHT ALLOWANCE IN THE SHIPMENT OF HIS HOUSEHOLD GOODS INCIDENT TO A PERMANENT CHANGE OF STATION FROM LANGLEY AIR FORCE BASE, VIRGINIA, TO IRAN IN 1976. THE DENIAL IS SUSTAINED.

MAJOR EIFF, A CAPTAIN AT THE TIME HE WAS TRANSFERRED, WAS AUTHORIZED A WEIGHT ALLOWANCE OF 11,000 POUNDS FOR SHIPMENT OF HOUSEHOLD GOODS AND UNACCOMPANIED BAGGAGE AND 1,000 POUNDS OF PROFESSIONAL BOOKS, PAPERS AND EQUIPMENT ON HIS PERMANENT CHANGE OF STATION FROM LANGLEY AIR FORCE BASE, VIRGINIA, TO IRAN. THE AIR FORCE DETERMINED THAT HE HAD SHIPPED A NET WEIGHT OF 14,110 POUNDS AND COLLECTED $768.60 FROM HIM FOR COSTS OF THE EXCESS WEIGHT.

THE RECORD INDICATES THAT MAJOR EIFF WAS AWARE OF A POSSIBLE OVERWEIGHT IN HIS SHIPMENT OF HOUSEHOLD GOODS AND THAT HE INFORMED THE TRAFFIC MANAGEMENT OFFICE IN TEHRAN. HE STATES THAT HE REQUESTED REWEIGH ON TWO SEPARATE OCCASIONS AND WAS REFUSED. A STATEMENT OF THE TRANSPORTATION OFFICER DATED NOVEMBER 21, 1976, SHOWS THAT HIS OFFICE FAILED TO REWEIGH THE HOUSEHOLD GOODS AS REQUESTED, BUT THAT A MESSAGE WAS SENT TO NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA, REQUESTING INFORMATION ON PACKING AT ORIGIN AND A REPLY WAS RECEIVED STATING THAT A QUALITY CONTROL INSPECTION WAS CONDUCTED AND THAT NO EXCEPTIONS WERE NOTED ON PACKING OR LOADING AT ORIGIN. IT SEEMS TO BE MAJOR EIFF'S CONTENTION THAT SINCE HIS GOODS WERE NOT REWEIGHED ON HIS REQUEST AS PROVIDED IN REGULATIONS, HE HAS NO LIABILITY FOR THE COST OF THE EXCESS WEIGHT.

SECTIONS 406(B) AND (C) OF TITLE 37, U.S.C. (1976), PROVIDE FOR THE SHIPMENT OF HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES AT GOVERNMENT EXPENSE TO AND FROM SUCH PLACES AND WITHIN SUCH WEIGHT ALLOWANCES AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED. IMPLEMENTING REGULATIONS ARE CONTAINED IN VOLUME 1, JOINT TRAVEL REGULATIONS (1 JTR). THE TABLE OF WEIGHT ALLOWANCE SET OUT UNDER PARAGRAPH M8003-1, 1 JTR, PROVIDES A WEIGHT LIMITATION FOR A CAPTAIN OF 11,000 POUNDS. THE PROFESSIONAL BOOKS, PAPERS, AND EQUIPMENT ARE NOT CHARGEABLE TO THE SERVICE MEMBER'S AUTHORIZED WEIGHT ALLOWANCE UNDER PARAGRAPH M8004. PARAGRAPH M8007-2 PROVIDES THAT WEIGHT WHICH EXCEEDS THE AMOUNTS PRESCRIBED BY REGULATIONS WILL BE TRANSPORTED AT THE MEMBER'S EXPENSE.

ORDINARILY THE WEIGHT OF HOUSEHOLD GOODS SHIPMENTS IS DETERMINED BY THE CARRIER HAVING THE SHIPMENT WEIGHED NEAR THE POINT OF ORIGIN OF THE SHIPMENT. HOWEVER, THE DEPARTMENT OF DEFENSE PERSONAL PROPERTY TRAFFIC MANAGEMENT REGULATION (DOD REG. 4500.34R, IN EFFECT AT THE TIME), PARAGRAPH 6007C DIRECTS INSTALLATION TRANSPORTATION OFFICERS TO ORDER REWEIGHS UNDER CERTAIN CONDITIONS. APPARENTLY, IT IS THE PROVISIONS OF PARAGRAPH 6007C(2) TO WHICH THE MEMBER REFERS IN STATING THAT HIS GOODS WERE NOT REWEIGHED. PARAGRAPH 6007C(2) PROVIDES AS FOLLOWS:

"(2) THE ITO (INSTALLATION TRANSPORTATION OFFICER) WILL ORDER REWEIGH OF SHIPMENTS PRIOR TO DELIVERY WHEN -

"(A) REQUESTED BY MEMBER.

"(B) DOUBT EXISTS AS TO THE CORRECT WEIGHT OF SHIPMENT.

"(C) IT IS KNOWN BY THE ITO THAT THE WEIGHT OF A SHIPMENT OR TOTAL NET WEIGHT OF ALL SHIPMENTS MADE UNDER THE SAME ORDERS EXCEEDS THE PRESCRIBED WEIGHT ALLOWANCE OF THE MEMBER."

THE PERSONAL PROPERTY TRAFFIC MANAGEMENT REGULATION ESTABLISHED STANDARDS AND SPECIAL PROCEDURES CONCERNING THE MOVEMENT AND STORAGE OF PERSONAL PROPERTY FOR ALL DEPARTMENT OF DEFENSE PERSONNEL, MILITARY AND CIVILIAN. HOWEVER, ITS PROVISIONS DO NOT APPLY TO ADMINISTRATION OR INTERPRETATION OF ENTITLEMENTS. SEE PARAGRAPHS 1000 AND 1001 PERSONAL PROPERTY TRAFFIC MANAGEMENT REGULATION DOD 4500.34R. PROCEDURES GOVERNING ENTITLEMENTS ARE SET FORTH IN THE JOINT TRAVEL REGULATIONS (VOLUME 1 - MILITARY, VOLUME 2 - CIVILIANS). THUS, WHILE THE PERSONAL PROPERTY TRAFFIC MANAGEMENT REGULATION MAY BE SPECIFIC IN NATURE, IT DOES NOT PROVIDE ADDITIONAL ENTITLEMENTS NOR DOES IT CONFER BENEFITS NOT SPECIFICALLY AUTHORIZED BY THE STATUTE ITSELF OR THE JOINT TRAVEL REGULATIONS. IN THIS CASE WHEN THE WEIGHT OF THE HOUSEHOLD GOODS IS CLEARLY ESTABLISHED BY THE WEIGHT CERTIFICATE AND NO SUBSTANTIAL EVIDENCE IS PRESENTED TO INDICATE THAT SUCH CERTIFICATE IS IN ERROR, A CHARGE AGAINST THE MEMBER FOR EXCESS WEIGHT MUST BE SUSTAINED. A FAILURE TO FULLY FOLLOW PROCEDURAL OR INSTRUCTIONAL REGULATIONS STANDING ALONE IS NOT SUFFICIENT TO RELIEVE THE MEMBER OF THE CHARGES FOR EXCESS WEIGHT.

WHETHER AND TO WHAT EXTENT AUTHORIZED WEIGHTS HAVE BEEN EXCEEDED IN THE SHIPMENT OF HOUSEHOLD EFFECTS, ARE QUESTIONS OF FACT CONSIDERED TO BE MATTERS PRIMARILY FOR ADMINISTRATIVE DETERMINATION WHICH WE ORDINARILY WILL NOT QUESTION IN THE ABSENCE OF EVIDENCE SHOWING THEM TO BE CLEARLY IN ERROR. SEE MATTER OF SHULL, B-171877.03, DECEMBER 15, 1976; AND MATTER OF BURTON, B-190541, NOVEMBER 28, 1977. SINCE NO SUCH ERROR HAS BEEN SHOWN, THE EXCESS WEIGHT AS DETERMINED BY THE AIR FORCE WILL NOT BE QUESTIONED. COMPARE MATTER OF BRUNTON, B-190687, MARCH 22, 1978.

MAJOR EIFF FURTHER CONTENDS IN ESSENCE THAT COSTS OF HIS MOVE WERE PAID BY THE GOVERNMENT OF IRAN AND THAT IF ANY REPAYMENT WAS DUE, HE SHOULD HAVE BEEN REQUIRED TO REIMBURSE THAT GOVERNMENT. REGARDLESS OF ANY ARRANGEMENT BETWEEN IRAN AND THE UNITED STATES CONCERNING THE COST OF THIS MOVE, MAJOR EIFF TRAVELED AS A MEMBER OF THE AIR FORCE AND IS SUBJECT TO THE LAW AND REGULATIONS APPLICABLE TO MOVE IN THAT STATUS. HE WAS REQUIRED BY PARAGRAPH M8007-2, 1 JTR, TO PAY THE EXPENSE OF TRANSPORTING THE EXCESS WEIGHT.

ACCORDINGLY, THE ACTION OF OUR CLAIMS GROUP DISALLOWING MAJOR EIFF'S CLAIM IS SUSTAINED.

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