B-135269, MAR. 19, 1958

B-135269: Mar 19, 1958

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CASWELL: FURTHER REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 7 AND FEBRUARY 13. THE FIRST SHIPMENT WAS MADE INCIDENT TO ORDERS DATED NOVEMBER 3 AND DECEMBER 3. THE SHIPMENT WAS MADE IN TWO PARTS. A PORTION OF YOUR EFFECTS WAS SHIPPED FROM JAPAN TO OAKLAND. THE BALANCE WAS SHIPPED FROM GOVERNMENT STORAGE AT MIRA LOMA. THE TOTAL NET WEIGHT OF THE SHIPMENTS WAS 13. SINCE THE SHIPMENTS EXCEEDED YOUR WEIGHT ALLOWANCE YOU WERE REQUIRED TO PAY $42.68 REPRESENTING THE EXCESS COST OF THE SHIPMENT FROM MIRA LOMA TO SAN LUIS OBISPO. THE ALLOWANCE FOR THE RANK OF MAJOR IS 9. WHEN THE FIRST SHIPMENT WAS MADE. THERE WAS IN EFFECT SECTION 632 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT. PROVIDES THAT ANY MEMBER OF THE ARMED FORCES WHO WAS TRANSFERRED TO A DUTY STATION OUTSIDE THE CONTINENTAL UNITED STATES UNDER ORDERS WHICH RELIEVED HIM FROM A DUTY STATION WITHIN THE UNITED STATES BEFORE JULY 10.

B-135269, MAR. 19, 1958

TO MAJOR RALPH A. CASWELL:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 7 AND FEBRUARY 13, 1958, REQUESTING REVIEW OF THE SETTLEMENT OF SEPTEMBER 26, 1956, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $1,062.42, REPRESENTING THE AMOUNT COLLECTED FROM YOU AS THE EXCESS COST OF THREE SHIPMENTS OF YOUR HOUSEHOLD EFFECTS.

THE FIRST SHIPMENT WAS MADE INCIDENT TO ORDERS DATED NOVEMBER 3 AND DECEMBER 3, 1952, WHICH RETURNED YOU TO THE UNITED STATES FROM DUTY IN JAPAN AND ASSIGNED YOU TO DUTY AT CAMP SAN LUIS OBISPO, CALIFORNIA. THE SHIPMENT WAS MADE IN TWO PARTS. A PORTION OF YOUR EFFECTS WAS SHIPPED FROM JAPAN TO OAKLAND, CALIFORNIA, AND THEN TO SAN LUIS OBISPO. THE BALANCE WAS SHIPPED FROM GOVERNMENT STORAGE AT MIRA LOMA, CALIFORNIA, TO SAN LUIS OBISPO. THE TOTAL NET WEIGHT OF THE SHIPMENTS WAS 13,647 POUNDS. SINCE THE SHIPMENTS EXCEEDED YOUR WEIGHT ALLOWANCE YOU WERE REQUIRED TO PAY $42.68 REPRESENTING THE EXCESS COST OF THE SHIPMENT FROM MIRA LOMA TO SAN LUIS OBISPO.

THE JOINT TRAVEL REGULATIONS ESTABLISH FOR MILITARY PERSONNEL GRADUATED WEIGHT LIMITATIONS (BASED ON RANK) ON HOUSEHOLD EFFECTS SHIPPED AT GOVERNMENT EXPENSE. THE ALLOWANCE FOR THE RANK OF MAJOR IS 9,500 POUNDS. WHEN THE FIRST SHIPMENT WAS MADE, HOWEVER, THERE WAS IN EFFECT SECTION 632 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1953, 66 STAT. 537, PLACING A WEIGHT LIMITATION OF 9,000 POUNDS ON ANY ONE SHIPMENT OF HOUSEHOLD EFFECTS. FOR THAT REASON THE DEPARTMENT OF THE ARMY USED A WEIGHT ALLOWANCE OF 9,000 POUNDS IN COMPUTING THE EXCESS COST OF THAT SHIPMENT. THE ACT OF JULY 27, 1956, 70 STAT. 700, 701, PROVIDES THAT ANY MEMBER OF THE ARMED FORCES WHO WAS TRANSFERRED TO A DUTY STATION OUTSIDE THE CONTINENTAL UNITED STATES UNDER ORDERS WHICH RELIEVED HIM FROM A DUTY STATION WITHIN THE UNITED STATES BEFORE JULY 10, 1952, AND WHO WAS TRANSFERRED BACK TO THE UNITED STATES UNDER AN ORDER WHICH RELIEVED HIM FROM A DUTY STATION OUTSIDE THE CONTINENTAL UNITED STATES AFTER JULY 9, 1952, AND BEFORE JULY 1, 1953, IS ENTITLED TO TRANSPORTATION OF HIS HOUSEHOLD EFFECTS WITHOUT REGARD TO THE WEIGHT LIMITATION OF SECTION 632 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1953. IT FURTHER PROVIDES THAT ANY MEMBER WHO HAS MADE A REPAYMENT TO THE UNITED STATES BECAUSE THE NET WEIGHT OF HIS HOUSEHOLD EFFECTS IN SUCH TRANSFER EXCEEDED THE WEIGHT LIMITATION OF SECTION 632, MAY BE PAID THE AMOUNT INVOLVED, IF OTHERWISE PROPER. SINCE YOU WERE ENTITLED UNDER THE JOINT TRAVEL REGULATIONS, TO SHIP HOUSEHOLD EFFECTS WITHIN A WEIGHT ALLOWANCE OF 9,500 POUNDS, THE EXCESS COST OF THE FIRST SHIPMENT WILL BE RECOMPUTED ON THE BASIS OF THAT WEIGHT ALLOWANCE.

UNDER AUTHORITY OF ORDERS DATED SEPTEMBER 1, 1953, TRANSFERRING YOU FROM CAMP SAN LUIS OBISPO, CALIFORNIA, TO FORT HOOD, TEXAS, 15,240 POUNDS OF HOUSEHOLD EFFECTS WERE SHIPPED TO YOUR NEW STATION BY VAN. SINCE THE WEIGHT OF THE SHIPMENT EXCEEDED YOUR AUTHORIZED WEIGHT ALLOWANCE, YOU WERE REQUIRED TO PAY THE EXCESS COST OF $681.64. AS TO THIS SHIPMENT, YOU EXPRESS THE BELIEF THAT THE WEIGHT SHOWN ON THE BILL OF LADING IS ERRONEOUS. YOU STATED THAT, AT THE TIME THE SHIPMENT WAS MADE, CAMP SAN LUIS OBISPO WAS BEING INACTIVATED AND NUMEROUS SHIPMENTS WERE BEING MADE LEADING TO CONFUSION AND ERROR; THAT YOUR PERSONAL BAGGAGE AND PROFESSIONAL BOOKS AND EQUIPMENT WERE NOT SEPARATED FROM YOUR HOUSEHOLD EFFECTS BUT WERE INCLUDED IN THE WEIGHT OF THE SHIPMENT; AND THAT WHEN THE VAN ARRIVED AT YOUR RESIDENCE TO PICK UP YOUR FURNITURE, SOME HOUSEHOLD EFFECTS OF ANOTHER PERSON WERE FOUND IN IT.

THE THIRD SHIPMENT WAS FROM KILLEEN, TEXAS, TO SAN LUIS OBISPO, CALIFORNIA, INCIDENT TO ORDERS DATED AUGUST 20, 1954, TRANSFERRING YOU FROM FORT HOOD, TEXAS, TO FORT HUACHUCA, ARIZONA. SINCE THE SHIPMENT INVOLVED GREATER EXPENSE THAN SHIPMENT FROM THE OLD STATION TO THE NEW, YOU WERE REQUIRED TO PAY THE EXCESS COST OF $338.10. YOU STATE THAT THIS SHIPMENT WAS MOTIVATED BY THE LACK OF DESIRABLE HOUSING FOR YOUR DEPENDENTS AT YOUR NEW STATION, AND CONTEND THAT A SAVINGS WAS SUBSEQUENTLY REALIZED BY THE GOVERNMENT FROM THE SHIPMENT AS MADE INASMUCH AS YOUR NEXT CHANGE OF STATION WAS TO TAIWAN, FREE CHINA.

THE STATUTORY AUTHORITY FOR TRANSPORTATION OF HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES IS CONTAINED IN SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C). THAT SECTION PROVIDES THAT UNDER SUCH CONDITIONS AND LIMITATIONS AND FOR SUCH RANKS, GRADES OR RATINGS, TO AND FROM SUCH LOCATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO TRANSPORTATION OF HOUSEHOLD EFFECTS IN CONNECTION WITH A CHANGE OF STATION. PARAGRAPH 8000-2 OF THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO AUTHORITY CONTAINED IN THAT ACT, DEFINES HOUSEHOLD EFFECTS AS INCLUDING PERSONAL EFFECTS AND PROFESSIONAL BOOKS. PARAGRAPH 8002 OF THE REGULATIONS PRESCRIBES THE CONDITIONS UNDER WHICH PROFESSIONAL BOOKS MAY BE INCLUDED IN A SHIPMENT OF HOUSEHOLD EFFECTS WITHOUT A CHARGE AGAINST THE WEIGHT ALLOWANCE OF THE OWNER. THOSE CONDITIONS MAKE IT MANDATORY THAT THE WEIGHT OF THE BOOKS BE SEPARATELY ESTABLISHED AND THAT DOCUMENTARY EVIDENCE OF SUCH WEIGHT BE FURNISHED. WITH RESPECT TO THE SECOND SHIPMENT, THE RECORD SHOWS THAT THE GOVERNMENT PAID FOR SHIPMENT OF 15,240 POUNDS OF YOUR HOUSEHOLD EFFECTS. THAT IS THE WEIGHT SHOWN ON THE BILL OF LADING. IT IS SUPPORTED BY A WEIGHT CERTIFICATE ISSUED BY A PUBLIC WEIGH MASTER AT PASO ROBLES, CALIFORNIA, SHOWING A GROSS WEIGHT OF 42,170 POUNDS AND A TARE WEIGHT OF 26,930 POUNDS. THERE IS NO INDICATION ON THE BILL OF LADING OR OTHERWISE THAT PROFESSIONAL BOOKS WERE INCLUDED IN THE SHIPMENT. IN THE ABSENCE OF SOME EVIDENCE FROM AN OFFICIAL SOURCE ESTABLISHING THAT PROFESSIONAL BOOKS WERE SHIPPED AND THE EXACT WEIGHT OF THOSE BOOKS, THERE IS NO LEGAL BASIS ON WHICH THE EXCESS COST OF THAT SHIPMENT MAY BE REDUCED BY REASON OF THE INCLUSION OF PROFESSIONAL BOOKS. ALSO, THERE APPEARS NO BASIS ON WHICH IT REASONABLY MAY BE CONCLUDED THAT THE WEIGHT OF YOUR HOUSEHOLD EFFECTS AS SHIPPED FROM SAN LUIS OBISPO WAS LESS THAN SHOWN ON THE BILL OF LADING OR THAT SUCH WEIGHT INCLUDED HOUSEHOLD EFFECTS OTHER THAN YOUR OWN. THIS WOULD BE TRUE EVEN IF IT WERE ESTABLISHED THAT ADDITIONAL MATERIAL WAS IN THE VAN WHEN IT ARRIVED AT YOUR RESIDENCE IN SAN LUIS OBISPO. PRESUMABLY, THE WEIGHT OF ANY MATERIAL THEN IN THE VAN WAS INCLUDED IN THE TARE WEIGHT OF 26,930 POUNDS.

AS TO THE THIRD SHIPMENT, THE LAW AND REGULATIONS AUTHORIZE THE SHIPMENT OF HOUSEHOLD EFFECTS, UPON CHANGE OF STATION WITHIN THE UNITED STATES, FROM THE OLD STATION TO THE NEW OR BETWEEN OTHER POINTS AT NO GREATER COST. WHEN SHIPMENT IS MADE TO A POINT INVOLVING GREATER COST, IT IS DONE AS A MATTER OF CONVENIENCE TO THE MEMBER, IT BEING AGREED UNDER THE TERMS OF THE APPLICATION FOR SHIPMENT THAT HE WILL PAY THE EXCESS COST INCURRED. THE FACT THAT SHIPMENT IS MADE TO A PLACE WHICH TURNS OUT TO BE NEARER TO A STATION SUBSEQUENTLY ASSIGNED, THAN IS THE FIRST NEW STATION, HAS NOT BEEN REGARDED AS FURNISHING A PROPER BASIS FOR REFUNDING ANY OF THE EXCESS COST COLLECTED FROM THE MEMBER. ACCORDINGLY, AS TO THE SECOND AND THIRD SHIPMENTS THE SETTLEMENT OF SEPTEMBER 26, 1956, IS SUSTAINED.

A SETTLEMENT FOR THE AMOUNT FOUND DUE IN CONNECTION WITH THE FIRST SHIPMENT, WILL ISSUE IN DUE COURSE.