B-143023, OCT. 20, 1960

B-143023, OCT. 20, 1960

TO CAPTAIN CARL J. BRIDGE, USA (RETIRED):

YOUR LETTER OF MAY 17, 1960, REQUESTS REVIEW OF SETTLEMENT DATED MAY 2, 1960, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF PART OF THE EXCESS COST OF SHIPMENT OF YOUR HOUSEHOLD EFFECTS FROM SAN ANTONIO, TEXAS, TO GARDNER, MASSACHUSETTS, INCIDENT TO PERMANENT CHANGE OF STATION UPON YOUR RETIREMENT.

BY SPECIAL ORDERS NO. 147, HEADQUARTERS, DEPARTMENT OF THE ARMY, WASHINGTON, D.C., DATED JULY 27, 1959, YOU WERE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OF THE ARMY ON AUGUST 4, 1959, AND RELIEVED FROM YOUR ASSIGNMENT AT BROOKE ARMY HOSPITAL, FORT SAM HOUSTON, TEXAS, ON AUGUST 3, 1959. TRAVEL TO YOUR HOME OF SELECTION WITHIN ONE YEAR WAS AUTHORIZED. PURSUANT TO THESE ORDERS YOUR HOUSEHOLD EFFECTS WEIGHING 10,420 POUNDS WERE SHIPPED FROM SAN ANTONIO, TEXAS, TO GARDNER, MASSACHUSETTS, ON GOVERNMENT BILL OF LADING NO. WY 10022449 AT A COST TO THE GOVERNMENT OF $1,430.17. THE SHIPMENT EXCEEDED YOUR AUTHORIZED WEIGHT ALLOWANCE OF 8,925 POUNDS, EXCLUSIVE OF PROFESSIONAL BOOKS, PAPERS, AND EQUIPMENT, AS PRESCRIBED BY PARAGRAPHS 8001 AND 8002, JOINT TRAVEL REGULATIONS, AND YOU WERE REQUIRED TO PAY TO THE GOVERNMENT THE EXCESS COST FOR TRANSPORTATION IN THE AMOUNT OF $188.39. YOU NOW CLAIM THAT THE SHIPMENT INCLUDED 1,000 POUNDS OF PROFESSIONAL BOOKS AND EQUIPMENT AND THAT YOU WERE, THEREFORE, ENTITLED TO A REFUND OF $126 ON THE BASIS THAT THIS WEIGHT SHOULD NOT HAVE BEEN CHARGED AGAINST YOUR AUTHORIZED WEIGHT ALLOWANCE. IT IS NOT SHOWN ON THE BILL OF LADING OR ELSEWHERE THAT THESE ITEMS WERE PACKED OR WEIGHED SEPARATELY. YOU STATE, HOWEVER, THAT YOU ITEMS WERE PACKED OR WEIGHED SEPARATELY. YOU STATE, HOWEVER, THAT YOU DECLARED 1,000 POUNDS OF PROFESSIONAL BOOKS AND EQUIPMENT ON A PRIOR SHIPMENT ON GOVERNMENT BILL OF LADING NO. AF-8532385 FOR WHICH YOU WERE GIVEN AN ALLOWANCE AND THAT THE SAME GOODS WERE INCLUDED IN THE SHIPMENT MADE ON GOVERNMENT BILL OF LADING NO. WY-10022449. YOU ALSO STATE THAT THE REPRESENTATIVE OF THE TRANSPORTATION OFFICER AT FORT SAM HOUSTON WAS ADVISED THAT THE SHIPMENT INCLUDED 1,000 POUNDS OF PROFESSIONAL BOOKS AND EQUIPMENT, AND THAT YOU WERE TOLD YOU WOULD BE ALLOWED THAT AMOUNT. IT IS YOUR CONTENTION THAT YOU SHOULD NOT BE HELD RESPONSIBLE FOR THE FAILURE OF THE TRANSPORTATION OFFICE TO CARRY OUT ITS FUNCTIONS EFFICIENTLY.

THE SHIPMENT OF PROFESSIONAL BOOKS, PAPERS, AND EQUIPMENT OF MEMBERS OF THE UNIFORMED SERVICES IS AUTHORIZED BY THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C). PARAGRAPH 8003 (CHANGE 79, DATED JULY 1, 1959) OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT WHEN CERTIFIED BY THE MEMBER AS NECESSARY IN THE PERFORMANCE OF HIS OFFICIAL DUTIES, SHIPMENT OF PROFESSIONAL BOOKS, PAPERS, AND EQUIPMENT UNDER THOSE REGULATIONS SHALL BE IN THE SAME MANNER AND UNDER THE SAME CONDITIONS AS OTHER HOUSEHOLD GOODS EXCEPT THAT THE WEIGHT THEREOF SHALL BE WITHOUT CHARGE AGAINST THE PRESCRIBED WEIGHT ALLOWANCE. ALSO, IT PROVIDES THAT SUCH BOOKS, PAPERS, AND EQUIPMENT WILL BE PACKED SEPARATELY AND THE CONTAINERS WILL BE MARKED "PROFESSIONAL BOOKS, PAPERS, AND EQUIPMENT," AND THAT THE WEIGHT OF SUCH CONTAINERS WILL BE SHOWN SEPARATELY ON THE BILLS OF LADING OR OTHER SHIPPING DOCUMENTS. THOSE REGULATIONS MAKE IT MANDATORY THAT THE WEIGHT OF THE BOOKS AND EQUIPMENT BE SEPARATELY ESTABLISHED WITH LEGAL CERTAINTY AND THAT DOCUMENTARY EVIDENCE OF SUCH WEIGHT BE FURNISHED. IN THE ABSENCE OF THE REQUIRED EVIDENCE TO ESTABLISH THAT PROFESSIONAL BOOKS AND EQUIPMENT WERE SHIPPED AND OF THEIR EXACT WEIGHT THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF A CLAIM BASED ON THEIR EXEMPTION FROM THE PRESCRIBED WEIGHT LIMITATIONS OTHERWISE IMPOSED ON HOUSEHOLD GOODS SHIPMENTS. NOTHING APPEARING IN THOSE REGULATIONS SUGGEST THAT THE OWNER'S RESPONSIBILITY WITH RESPECT TO PACKING THE BOOKS, ETC., SEPARATELY AND ESTABLISHING THEIR WEIGHT WITH CERTAINTY MAY BE SHIFTED TO THE TRANSPORTATION OFFICER.

THE WEIGHT OF THE PROFESSIONAL BOOKS AND EQUIPMENT SHIPPED BY YOU UPON YOUR RETIREMENT WAS NOT SHOWN ON GOVERNMENT BILL OF LADING NO. WY 10022449, AND IT DOES NOT APPEAR THAT THEY WERE PACKED AND WEIGHED SEPARATELY IN PREPARATION FOR THAT SHIPMENT AS REQUIRED BY THE REGULATIONS OR THAT ANY OTHER EVIDENCE IN THE RECORD COULD BE CONSIDERED TO ESTABLISH THAT THEY WERE THE SAME GOODS WEIGHING 1000 POUNDS THAT HAD BEEN INVOLVED IN THE PRIOR SHIPMENT. UNDER THOSE CIRCUMSTANCES THERE IS NO BASIS UPON WHICH WE MAY DETERMINE YOUR RIGHTS IN THE MATTER. ACCORDINGLY, ON PRESENT RECORD THE SETTLEMENT OF MAY 2, 1960, MUST BE SUSTAINED.

AS REQUESTED IN YOUR LETTER OF JULY 11, 1960, THIS DECISION HAS BEEN HELD IN ABEYANCE PENDING THE SUBMISSION OF ADDITIONAL EVIDENCE. SUCH EVIDENCE HAS NOT BEEN RECEIVED AND WE DO NOT BELIEVE WE SHOULD FURTHER DELAY OUR DECISION. OUR CONCLUSION IS, OF COURSE, BASED UPON THE EVIDENCE BEFORE US AND IS WITHOUT PREJUDICE TO YOUR RIGHT TO FURTHER CONSIDERATION UPON THE PRESENTATION OF ADDITIONAL EVIDENCE SUBSTANTIATING YOUR CLAIM.

WITH REFERENCE TO YOUR REQUEST FOR A STATEMENT AS TO YOUR RIGHT OF APPEAL AND TO WHAT AUTHORITY IT SHOULD BE SUBMITTED, YOU ARE ADVISED THAT THE DECISIONS OF THIS OFFICE ON CLAIMS AGAINST THE UNITED STATES ARE FINAL AND CONCLUSIVE ON ALL EXECUTIVE OFFICES OF THE GOVERNMENT. HOWEVER, INDEPENDENTLY OF THE AUTHORITY VESTED IN THIS OFFICE, THE COURT OF CLAIMS OF THE UNITED STATES HAS JURISDICTION TO DETERMINE CERTAIN CLAIMS AGAINST THE UNITED STATES IF FILED THERE "WITHIN SIX YEARS AFTER SUCH CLAIM FIRST ACCRUES.' 28 U.S.C. 2501.