B-135185, FEB. 25, 1958

B-135185, FEB. 25, 1958

TO STAFF SERGEANT SAM G. PALERMO, USAF:

THERE HAS BEEN REFERRED TO THIS OFFICE A LETTER DATED OCTOBER 17, 1957, FROM YOUR WIFE ADDRESSED TO THE PRESIDENT OF THE UNITED STATES RELATIVE TO YOUR CLAIM FOR REFUND OF THE AMOUNT COLLECTED FROM YOU AS THE EXCESS COST OF SHIPPING YOUR HOUSEHOLD EFFECTS. SINCE YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT DATED JANUARY 8, 1953, THE LETTER WILL BE CONSIDERED AS A REQUEST IN YOUR BEHALF FOR REVIEW OF THAT SETTLEMENT.

BY ORDERS DATED APRIL 13, 1949, YOU WERE TRANSFERRED FROM MITCHEL AIR FORCE BASE, NEW YORK, TO ALASKAN AIR COMMAND FOR DUTY. ON AUGUST 1, 1949, YOUR HOUSEHOLD EFFECTS WERE PICKED UP FROM YOUR RESIDENCE IN BROOKLYN, NEW YORK, AND WERE PACKED, CRATED AND SHIPPED IN TWO LOTS AS REQUESTED BY YOU UPON YOUR AGREEMENT TO PAY ANY EXCESS COST INCURRED. THE FIRST LOT, APPARENTLY WEIGHING 1,400 POUNDS, WAS SHIPPED TO FAIRBANKS, ALASKA, BY RAIL AND WATER. THE SECOND, WEIGHING 7,316 POUNDS, WAS SHIPPED TO GOVERNMENT STORAGE AT BELLBLUFF, VIRGINIA, BY RAIL. SINCE THE SHIPMENTS EXCEEDED YOUR AUTHORIZED WEIGHT ALLOWANCE, YOU WERE REQUIRED BY PAY $207.94 REPRESENTING THE EXCESS COST OF THE LATTER SHIPMENT. UPON YOUR SUBSEQUENT ASSIGNMENT TO DUTY AT BIGGS AIR FORCE BASE, TEXAS, UNDER ORDERS DATED JUNE 30, 1951, 421 POUNDS OF YOUR HOUSEHOLD EFFECTS WERE SHIPPED FROM ALASKA AND THOSE IN STORAGE AT BELLBLUFF WERE SHIPPED TO YOUR NEW STATION. SINCE EXCESS COST AGAIN WAS INCURRED, YOU WERE CHARGED $152.18 IN CONNECTION WITH THE LATTER SHIPMENT. WHILE YOU WERE NOT ADVISED OF THE LATTER CHARGE UNTIL AFTER THE SETTLEMENT OF JANUARY 8, 1953, IT SEEMS CLEAR THAT IT IS YOUR INTENTION TO INCLUDE THAT AMOUNT IN YOUR CLAIM MAKING A TOTAL OF $360.12. IT APPEARS THAT WHEN THE EFFECTS SHIPPED FROM BELLBLUFF WERE UNPACKED AT BIGGS AIR FORCE BASE YOU ARRANGED FOR THE SEPARATE WEIGHTING OF YOUR FURNITURE AND THE PACKING MATERIALS. ON THE BASIS OF SUCH WEIGHTS IT IS YOUR CONTENTION THAT YOUR HOUSEHOLD EFFECTS, IF PROPERLY PACKED, WOULD NOT HAVE EXCEEDED YOUR AUTHORIZED WEIGHT ALLOWANCE AND THAT THE EXCESS WEIGHT WAS CAUSED BY THE USE OF EXCESSIVE PACKING MATERIALS BY THE COMMERCIAL FIRM ENGAGED BY THE DEPARTMENT OF THE AIR FORCE TO PACK YOUR EFFECTS.

WHEN YOUR EFFECTS WERE SHIPPED INCIDENT TO THE ORDERS TO ALASKA, THE PACKING, CRATING AND SHIPMENT OF HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES WERE GOVERNED BY EXECUTIVE ORDER 10053, DATED APRIL 20, 1949, ISSUED PURSUANT TO SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, AS AMENDED BY SECTION 205 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 860. WHEN YOUR EFFECTS WERE MOVED INCIDENT TO THE ORDERS ASSIGNING YOU TO DUTY AT BIGGS AIR FORCE BASE, THE STATUTORY AUTHORITY FOR SHIPPING HOUSEHOLD EFFECTS WAS CONTAINED IN SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814. THAT SECTION PROVIDES THAT UNDER SUCH CONDITIONS AND CIRCUMSTANCES AS THE SECRETARIES MAY PRESCRIBE, MEMBERS OF THE UNIFORMED SERVICES UPON CHANGE OF STATION SHALL BE ENTITLED TO TRANSPORTATION (INCLUDING PACKING AND CRATING) OF HOUSEHOLD EFFECTS TO AND FROM SUCH LOCATIONS, AND WITHIN SUCH WEIGHT ALLOWANCES AS THE SECRETARIES PRESCRIBE. JOINT TRAVEL REGULATIONS WERE PROMULGATED PURSUANT TO THAT AUTHORITY OF LAW. UNDER THE PROVISIONS OF BOTH THE EXECUTIVE ORDER AND THE JOINT TRAVEL REGULATIONS YOU WERE ENTITLED TO SHIP A NET WEIGHT OF 4,500 POUNDS OF HOUSEHOLD EFFECTS UPON PERMANENT CHANGE OF STATION WITH THE FURTHER PROVISION THAT SUCH ALLOWANCE WOULD BE INCREASED BY 40 PERCENT FOR SHIPMENT BY WATER AND BY 25 PERCENT FOR SHIPMENT BY RAIL TO ALLOW FOR THE WEIGHT OF THE MATERIALS USED IN PACKING AND CRATING.

THE EXECUTIVE ORDER AND THE REGULATIONS CONTEMPLATE THE SHIPMENT AT GOVERNMENT EXPENSE OF HOUSEHOLD GOODS, AS PACKED FOR SHIPMENT, AT NOT TO EXCEED AN OVER-ALL WEIGHT ALLOWANCE OF WHICH THE NET WEIGHT OF THE HOUSEHOLD GOODS IS BUT ONE COMPONENT PART. THE COST OF SHIPPING WEIGHTS IN EXCESS OF THE MAXIMUM OVER-ALL WEIGHT FIXED BY THE REGULATIONS IS CHARGEABLE TO THE SHIPPER. THE EXECUTIVE ORDER AND REGULATIONS IN EFFECT AT THE TIME HERE INVOLVED MADE NO PROVISION FOR AN ADJUSTMENT ON THE BASIS THAT THE PACKING AND CRATING USED EXCEEDED THE REQUIREMENTS OF THE PARTICULAR SHIPMENT. UNDER SUCH CIRCUMSTANCES, THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF ANY PART OF YOUR CLAIM AND, THEREFORE, THE SETTLEMENT OF JANUARY 8, 1953, MUST BE SUSTAINED.