B-121745, MAR 17, 1955

B-121745, MAR 17, 1955

PRECIS-UNAVAILABLE

LIEUTENANT COMMANDER JAMES L. PENICK, SC, USN:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 10, 1954, REQUESTING REVIEW OF THE SETTLEMENT OF AUGUST 30, 1954, WHICH DISALLOWED YOUR CLAIM FOR $355.71, REPRESENTING THE AMOUNT COLLECTED FROM YOU AS THE EXCESS COST OF SHIPPING YOUR HOUSEHOLD GOODS IN OCTOBER 1952.

THE RECORD SHOWS THAT INCIDENT TO ORDERS DATED SEPTEMBER 22, 1952, TRANSFERRING YOU FROM GUAM, MARIANAS ISLANDS, TO NORFOLK, VIRGINIA, FOR DUTY, YOU REQUESTED SHIPMENT OF TWO LOTS OF HOUSEHOLD EFFECTS FROM GUAM TO NORFOLK AND A THIRD FROM NONTEMPORARY GOVERNMENT STORAGE IN STOCKTON, CALIFORNIA, TO NORFOLK. THE LATTER HAD BEEN PLACED IN STORAGE AT YOUR REQUEST INCIDENT TO ORDERS DATED MAY 16, 1951, TRANSFERRING YOU FROM STOCKTON TO GUAM FOR DUTY. SINCE YOUR NET WEIGHT ALLOWANCE WAS 9,000 POUNDS, OF WHICH YOU EXHAUSTED 3,566 POUNDS BY THE FIRST TWO LOTS, THERE REMAINED A BALANCE OF 5,434 POUNDS PLUS 25 PERCENT ADDITIONAL ALLOWANCE FOR PACKING AND CRATING FOR RAIL SHIPMENT, OR 6,793 POUNDS. INASMUCH AS THE SHIPMENT FROM STOCKTON WEIGHED 11,272 POUNDS, YOU EXCEEDED YOUR ALLOWANCE BY 4,479 POUNDS, RESULTING IN AN EXCESS COST OF $355.71. YOU CONTEND THAT THE WEIGHT ALLOWANCE FOR THE THIRD SHIPMENT SHOULD BE INCREASED BY 40 PERCENT FOR THE REASONS THAT YOUR EFFECTS HAD BEEN PACKED AND CRATED FOR OCEAN SHIPMENT WITHOUT YOUR REQUEST OR CONSENT, AND THAT YOU SHOULD BE RELIEVED OF THE RESULTING EXCESS COST UNDER THE PROVISIONS OF PARAGRAPH 8001-1, JOINT TRAVEL REGULATIONS, WHICH AUTHORIZES DEVIATION FROM THE PRESCRIBED PACKING AND CRATING ALLOWANCES UPON ADMINISTRATIVE APPROVAL IN INSTANCES WHERE THE TARE WEIGHT EXCEEDS SUCH ALLOWANCES THROUGH NO FAULT OF THE OWNER.

PARAGRAPH 303(C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 814, PROVIDES FOR THE TRANSPORTATION (INCLUDING PACKING AND CRATING) OF HOUSEHOLD EFFECTS TO AND FROM SUCH LOCATIONS AND WITHIN SUCH WEIGHT ALLOWANCES AS MAY BE PRESCRIBED BY THE SECRETARIES. AT THE TIME HERE INVOLVED, PARAGRAPH 8001-1 OF THE JOINT TRAVEL REGULATIONS PROVIDED THAT WHEN ANY PORTION OF THE SHIPMENT WAS BY WATER THE WEIGHT ALLOWANCE WOULD BE INCREASED BY 40 PERCENT TO COVER THE WEIGHT OF MATERIALS USED IN PACKING FOR WATER SHIPMENT, AND THAT WHEN SHIPMENT WAS BY RAIL OR MOTOR FREIGHT THE ALLOWANCE WOULD BE INCREASED BY 25 PERCENT. SINCE THE EFFECTS WHICH HAD BEEN PLACED IN NONTEMPORARY GOVERNMENT STORAGE AT STOCKTON WERE SHIPPED BY RAIL, THERE IS NO BASIS UNDER THE CONTROLLING REGULATIONS FOR INCREASING THE ALLOWANCE AS FOR SHIPMENT BY WATER.

AUTHORITY TO PERMIT DEVIATIONS FROM THE PRESCRIBED ALLOWANCES ON ACCOUNT OF EXCESSIVE TARE WEIGHT WAS FIRST PROMULGATED BY CHANGE 17, DATED NOVEMBER 1, 1953, TO THE JOINT TRAVEL REGULATIONS, SUBSEQUENT TO THE TIME THE SHIPMENT OF YOUR HOUSEHOLD EFFECTS WAS COMPLETED. WHILE REGULATIONS MAY BE AMENDED PROSPECTIVELY TO INCREASE OR DECREASE RIGHTS, THEY MAY NOT BE AMENDED TO DECREASE RETROACTIVELY ALLOWANCES PREVIOUSLY AUTHORIZED (COMPARE UNITED STATES V. DAVIS, 132 U.S. 334), AND NO LEGAL BASIS IS PERCEIVED FOR INCREASING RETROACTIVELY THE OBLIGATIONS OF THE GOVERNMENT. SEE 32 COMP. GEN. 315; COMPARE 21 COMP DEC. 482; 10 COMP. GEN. 242; 15 ID. 869; 17 ID. 566. HENCE, SUCH REGULATION PROVIDES NO PROPER BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

ACCORDINGLY, THE SETTLEMENT OF AUGUST 30, 1954, IS SUSTAINED.