B-153007, FEB 16, 1971, 50 COMP GEN 556

B-153007, FEB 16, 1971, 50 COMP GEN 556

TRANSPORTATION - HOUSEHOLD EFFECTS - MILITARY PERSONNEL - REPLACEMENT FOR EFFECTS DAMAGED OR DESTROYED REPLACEMENT ITEMS FOR THE HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES ASSIGNED IN EUROPE, WHICH WERE DESTROYED BY FIRE BEFORE DELIVERY WAS EFFECTED, MAY NOT BE SHIPPED AT GOVERNMENT EXPENSE, THE AUTHORITY IN 37 U.S.C. 406(B) TO SHIP HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE INCIDENT TO A CHANGE OF STATION RELATING TO EFFECTS POSSESSED BY A MEMBER ON THE EFFECTIVE DATE OF HIS ORDERS, OR THE EFFECTS ACQUIRED SHORTLY THEREAFTER IN EXCEPTIONAL CIRCUMSTANCES, AND BEFORE THEY ARE TURNED OVER TO A TRANSPORTATION OFFICER OR CARRIER FOR SHIPMENT, AT WHICH TIME THE MEMBER'S SHIPPING RIGHTS ARE EXHAUSTED, EVEN THOUGH THE ORIGINAL SHIPMENT IS DAMAGED OR DESTROYED IN TRANSIT. MOREOVER, TO AUTHORIZE REPLACEMENT SHIPMENTS UNDER 37 U.S.C. 406 WOULD PROVIDE DUPLICATE TRANSPORTATION BENEFITS, SINCE THE COMPENSATION PAID PURSUANT TO 31 U.S.C. 241 FOR DESTROYED PROPERTY INCLUDES THE COST OF TRANSPORTATION.

TO THE SECRETARY OF THE NAVY, FEBRUARY 16, 1971:

FURTHER REFERENCE IS MADE TO LETTER OF MAY 22, 1970, FROM THE ASSISTANT SECRETARY OF THE NAVY, IN WHICH HE REQUESTS A DECISION WHETHER SHIPMENT OF HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE TO A DUTY STATION OUTSIDE CONTINENTAL UNITED STATES TO REPLACE THOSE WHICH HAVE BEEN DESTROYED BY FIRE PRIOR TO FINAL DELIVERY IS AUTHORIZED UNDER THE PROVISIONS OF PARAGRAPH M8000-2, ITEM 9, JOINT TRAVEL REGULATIONS. IF NOT, HE ASKS WHETHER THE REGULATIONS MAY BE AMENDED TO AUTHORIZE SUCH SHIPMENT. THE REQUEST HAS BEEN ASSIGNED CONTROL NO. 70-13 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE FILE TRANSMITTED WITH THE REQUEST CONTAINS CORRESPONDENCE FROM THE DIRECTORATE OF ARMY TRANSPORTATION, DEPUTY CHIEF OF STAFF FOR LOGISTICS, DEPARTMENT OF THE ARMY, DATED DECEMBER 6, 1969, WITH ENCLOSURES, CONCERNING A SITUATION IN WHICH ALL OF THE HOUSEHOLD GOODS BELONGING TO SOME 15 MILITARY MEMBERS ASSIGNED IN EUROPE WERE DESTROYED IN A WAREHOUSE FIRE IN EUROPE BEFORE FINAL DELIVERY UNDER GOVERNMENT BILL OF LADING WAS MADE TO THE PROPER OWNERS. IT WAS STATED THAT THE MEMBERS WILL RECEIVE FULL COMPENSATION FOR THEIR LOSS, BUT THE PROBLEM IS THAT THEY ARE UNABLE TO BUY REPLACEMENT ITEMS IN EUROPE. ON THAT BASIS, THE ASSISTANT SECRETARY REQUESTS A DECISION WHETHER PARAGRAPH M8000-2, ITEM 9, JOINT TRAVEL REGULATIONS, MAY BE USED BY THE MEMBERS CONCERNED AS AUTHORITY TO SHIP TO EUROPE AT GOVERNMENT EXPENSE REPLACEMENT ITEMS OF HOUSEHOLD GOODS IN AN AMOUNT:

A. NOT TO EXCEED THE WEIGHT OF THE ORIGINAL SHIPMENT OF HOUSEHOLD GOODS WHICH WAS DESTROYED IN THE FIRE, OR;

B. NOT TO EXCEED THE WEIGHT OF THE UNUSED PORTION OF THE MEMBER'S AUTHORIZED WEIGHT ALLOWANCE REMAINING AFTER SHIPMENT OF THE HOUSEHOLD GOODS THAT WERE DESTROYED BY FIRE.

IF THE ANSWERS TO THOSE QUESTIONS ARE IN THE NEGATIVE, THE ASSISTANT SECRETARY ASKS WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO AUTHORIZE SHIPMENT IN FUTURE SIMILAR CASES?

PARAGRAPH M8000-2, ITEM 9, JOINT TRAVEL REGULATIONS, IMPLEMENTING SECTION 406 OF TITLE 37, UNITED STATES CODE, PROVIDES THAT THE TERM "HOUSEHOLD GOODS" THAT MAY BE TRANSPORTED AT GOVERNMENT EXPENSE DOES NOT INCLUDE -

9. ARTICLES OF HOUSEHOLD GOODS ACQUIRED SUBSEQUENT TO THE EFFECTIVE DATE OF PERMANENT CHANGE-OF-STATION ORDERS EXCEPT WHEN PURCHASED IN THE UNITED STATES FOR SHIPMENT TO A DUTY STATION OUTSIDE THE UNITED STATES WITH THE APPROVAL OF THE APPROPRIATE AUTHORITY OF THE SERVICE CONCERNED, OR WHEN THEY ARE BONA FIDE REPLACEMENTS OF ARTICLES WHICH HAVE BECOME INADEQUATE, WORN OUT, BROKEN, OR UNSERVICEABLE ON OR AFTER THE EFFECTIVE DATE OF ORDERS BUT PRIOR TO THE DATE OF RELEASE OF THE BULK OF HOUSEHOLD GOODS TO THE TRANSPORTATION OFFICER OR CARRIER FOR SHIPMENT.

UNDER THE PROVISIONS OF 37 U.S.C. 406(B), THE RIGHT OF MEMBERS OF THE UNIFORMED SERVICES TO SHIPMENT OF HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE INCIDENT TO CHANGE OF STATION ACCRUES TO SUCH MEMBERS UPON THE ISSUANCE OF ORDERS AND BECOMES DEFINITE ON THE EFFECTIVE DATE OF SUCH ORDERS. THEREFORE, ENTITLEMENT TO SHIPMENT GENERALLY RELATES ONLY TO THOSE EFFECTS POSSESSED BY A MEMBER AT THAT TIME. 43 COMP. GEN. 514 (1964) AND DECISIONS THEREIN CITED.

IN 24 COMP. GEN. 69 (1944), WE HELD THAT THERE WAS NO AUTHORITY FOR A CIVILIAN EMPLOYEE TO SHIP AT GOVERNMENT EXPENSE HOUSEHOLD EFFECTS PURCHASED AFTER THE EFFECTIVE DATE OF ORDERS TO REPLACE THOSE DESTROYED BY FIRE AT THE OLD STATION PRIOR TO THE DATE SUCH ORDERS WERE ISSUED. IN 44 COMP. GEN. 290 (1964), WE SAID THAT THIS PRINCIPLE WAS APPLICABLE TO MILITARY PERSONNEL AS WELL; AND SINCE NONTEMPORARY STORAGE IS IN LIEU OF SHIPMENT, THERE WAS NO AUTHORITY FOR THE PAYMENT OF NONTEMPORARY STORAGE CHARGES FOR EFFECTS PURCHASED TO REPLACE GOODS DESTROYED BY FIRE AT THE STORAGE FACILITY.

IN THAT DECISION, WE EXPRESSED THE VIEW THAT AFTER A MEMBER HAS PLACED HIS HOUSEHOLD EFFECTS IN NONTEMPORARY STORAGE, HE HAS LEGALLY EXHAUSTED HIS SHIPPING ENTITLEMENT TO THE WEIGHT STORED; AND THE LAW DOES NOT CONTEMPLATE THAT NONTEMPORARY STORAGE WILL BE FURNISHED AT GOVERNMENT EXPENSE FOR ANY ADDITIONAL WEIGHT OF HOUSEHOLD EFFECTS SUBSEQUENTLY ACQUIRED, EVEN THOUGH SUCH WEIGHT IS ACQUIRED TO REPLACE THE WEIGHT DESTROYED WHILE IN NONTEMPORARY STORAGE.

AS POINTED OUT BY THE ASSISTANT SECRETARY, AN EXCEPTION TO THE RULE AGAINST THE SHIPMENT OF EFFECTS ACQUIRED AFTER THE EFFECTIVE DATE OF PERMANENT CHANGE-OF-STATION ORDERS WAS RECOGNIZED IN 27 COMP. GEN. 171 (1947). THIS EXCEPTION PERMITTED THE SHIPMENT UNDER CONTROLLED CIRCUMSTANCES OF AFTER-ACQUIRED HOUSEHOLD GOODS FROM THE UNITED STATES TO AN OVERSEAS STATION BECAUSE OF CERTAIN ABNORMAL HOUSING CONDITIONS THEN EXISTING. A FURTHER EXCEPTION WAS AUTHORIZED IN 43 COMP. GEN. 514 (1964) TO PERMIT SHIPMENT OF REPLACEMENT ITEMS OF EQUIPMENT WHICH HAD BEEN SERVICEABLE ON THE EFFECTIVE DATE OF ORDERS BUT HAD TO BE REPLACED BECAUSE OF A BREAKDOWN, WEARING OUT, ETC., AFTER SUCH DATE BUT BEFORE THE DATE THE GOODS WERE TURNED OVER TO A TRANSPORTATION OFFICER OR CARRIER FOR SHIPMENT. PARAGRAPH M8000-2, ITEM 9, IS BASED ON THESE DECISIONS.

THE GENERAL RULE CITED ABOVE, INCLUDING THE EXCEPTIONS MENTIONED, COMES WITHIN THE CONCEPT LONG HELD BY THE ACCOUNTING OFFICERS THAT THE RIGHT TO SHIP HOUSEHOLD EFFECTS UNDER 37 U.S.C. 406(B), AND THE PRIOR STATUTES FROM WHICH IT STEMS, IS A CHANGE-OF-STATION ALLOWANCE AND RELATES TO THE EFFECTS IN THE POSSESSION OF THE MEMBER ON THE EFFECTIVE DATE OF HIS ORDERS, OR EFFECTS WHICH WERE ACQUIRED SHORTLY THEREAFTER IN THE EXCEPTIONAL CIRCUMSTANCES SPECIFIED, AND BEFORE THE HOUSEHOLD EFFECTS ARE TURNED OVER TO A TRANSPORTATION OFFICER OR CARRIER FOR SHIPMENT.

ONCE A MEMBER HAS TURNED OVER HIS GOODS TO A TRANSPORTATION OFFICER OR CARRIER AND SHIPMENT HAS COMMENCED, HOWEVER, IT WOULD APPEAR THAT HE HAS EXERCISED HIS SHIPPING RIGHTS; AND WE ARE OF THE OPINION THAT THERE IS NO AUTHORITY UNDER THE STATUTE FOR AN ADDITIONAL SHIPMENT CONSISTING OF ITEMS REQUIRED TO REPLACE THOSE EFFECTS THAT HAVE BEEN DAMAGED OR DESTROYED, EVEN THOUGH THE DAMAGE OR DESTRUCTION MAY HAVE OCCURRED WHILE THE ORIGINAL SHIPMENT WAS IN TRANSIT INCIDENT TO A CHANGE OF STATION. CF. 44 COMP. GEN. 290.

ACCORDINGLY, THE ANSWERS TO QUESTIONS A AND B MUST BE IN THE NEGATIVE. FURTHERMORE, IT IS OUR VIEW THAT THERE IS NO LEGAL BASIS FOR A CHANGE IN THE APPLICABLE REGULATIONS TO PROVIDE FOR SHIPMENT OF AFTER ACQUIRED HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE UNDER THE CIRCUMSTANCES INDICATED.

AS STATED ABOVE, CORRESPONDENCE IN THE FILE SHOWS THAT THE MEMBERS WILL BE FULLY COMPENSATED FOR THE DESTROYED PROPERTY. PRESUMABLY SUCH ACTION WILL BE TAKEN UNDER THE PROVISIONS OF 31 U.S.C. 241 (FORMERLY 10 U.S.C. 2732). THE REGULATIONS IMPLEMENTING THOSE STATUTORY PROVISIONS ARE CONTAINED IN CHAPTER 11 OF ARMY REGULATION 27-20, DATED SEPTEMBER 18, 1970, AND PARAGRAPH 11-15 OF THE REGULATIONS, "FACTORS IN DETERMINATION OF LOSS," AUTHORIZES COMPENSATION EQUAL TO THE VALUE OF THE ARTICLE AT THE TIME OF ITS DESTRUCTION.

AS A BASIS FOR DETERMINING SUCH VALUE, PARAGRAPH 11-15 PROVIDES THAT:

IN MOST CASES, THE VALUE AT THE TIME OF*** DESTRUCTION SHOULD BE PREDICATED UPON THE REPLACEMENT COST, AT THE TIME OF THE INCIDENT AND AT THE PLACE OF CLAIMANT'S GEOGRAPHIC LOCATION AT THE TIME OF ADJUDICATION OF THE CLAIM. REPLACEMENT COST SHOULD BE COMPUTED ON THE BASIS OF A NEW ITEM WHICH IS IDENTICAL OR SUBSTANTIALLY SIMILAR TO THE ITEM WHICH IS *** DESTROYED, LESS THE APPROPRIATE PERCENTAGE OF DEPRECIATION *** .

WE UNDERSTAND THAT UNDER THOSE PROVISIONS THE COMPENSATION PAID TO THE MEMBERS HERE CONCERNED FOR THE DESTRUCTION OF THEIR PROPERTY WILL INCLUDE ANY NECESSARY COST OF TRANSPORTING LIKE REPLACEMENT PROPERTY FROM THE UNITED STATES TO THEIR GEOGRAPHIC LOCATION AT THE TIME OF ADJUDICATION OF THEIR CLAIMS, PRESUMABLY EUROPE IN THIS CASE. THEREFORE, THE PROMULGATION OF A REGULATION PURSUANT TO 37 U.S.C. 406 WHICH WOULD AUTHORIZE TRANSPORTATION OF THE REPLACEMENT ARTICLES AT GOVERNMENT EXPENSE WOULD CONFER ON THE MEMBERS CONCERNED DUPLICATE TRANSPORTATION BENEFITS. FIND NO JUSTIFICATION FOR SUCH A RESULT ON EITHER LEGAL OR EQUITABLE GROUNDS.