B-149189, JUL. 11, 1962

B-149189, JUL. 11, 1962

TO WESLEY E. BOS:

REFERENCE IS MADE TO YOUR LETTER OF MAY 24, 1962, REQUESTING REVIEW OF THE SETTLEMENT OF FEBRUARY 10, 1961, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $556.50, REPRESENTING THE AMOUNT COLLECTED FROM YOU AS THE EXCESS COST OF AN ERRONEOUS SHIPMENT OF YOUR HOUSEHOLD EFFECTS AND TEMPORARY STORAGE AT DESTINATION.

THE RECORD SHOWS THAT YOU REENLISTED ON MAY 6, 1959, AT OMAHA, NEBRASKA, HAVING PREVIOUSLY BEEN HONORABLY DISCHARGED ON MARCH 12, 1959. BY ORDERS 117-59, DATED MAY 6, 1959, YOU WERE ASSIGNED TO THE U.S. NAVAL TRAINING CENTER, SAN DIEGO, CALIFORNIA, FOR 14 WEEKS' TEMPORARY DUTY UNDER INSTRUCTION IN THE NAVY SERVICE SCHOOL AND FOR FURTHER ASSIGNMENT. ON THE BASIS OF THOSE ORDERS YOU REQUESTED THAT YOUR HOUSEHOLD GOODS BE SHIPPED FROM SIOUX CITY, IOWA, TO SAN DIEGO, CALIFORNIA, WITH TEMPORARY STORAGE AT DESTINATION. AS THE RESULT OF YOUR REQUEST, YOUR HOUSEHOLD EFFECTS WEIGHING 4,320 POUNDS WERE SHIPPED BY VAN ON BILL OF LADING DATED MAY 13, 1959, FROM SIOUX CITY, IOWA, TO SAN DIEGO, CALIFORNIA, AND WERE STORED AT DESTINATION. SINCE YOUR AUTHORIZED WEIGHT ALLOWANCE ON TEMPORARY CHANGE OF STATION WAS 400 POUNDS PLUS 5 PERCENT FOR PACKING FOR VAN SHIPMENT OR A TOTAL OF 420 POUNDS, THE EXCESS WEIGHT OF 3,900 POUNDS RESULTED IN EXCESS COST OF $448.50 FOR TRANSPORTATION, PLUS $108 FOR TEMPORARY STORAGE NOT AUTHORIZED ON TEMPORARY CHANGE OF STATION, OR A TOTAL OF $556.50, WHICH AMOUNT WAS COLLECTED FROM YOU BY AN ADJUSTMENT IN YOUR PAY. SUBSEQUENT TO THE SHIPMENT, BY ORDERS DATED SEPTEMBER 9, 1959, YOU WERE TRANSFERRED FROM THE U.S. NAVAL TRAINING CENTER, SAN DIEGO, CALIFORNIA, TO THE U.S.S. WILKINSON (DL-5) AT LONG BEACH, CALIFORNIA, FOR DUTY.

APPARENTLY IT IS YOUR BELIEF THAT YOU ARE ENTITLED TO THE REFUND BECAUSE THE HOUSEHOLD GOODS WERE SHIPPED ERRONEOUSLY BY THE AIR FORCE BASE, SIOUX CITY, IOWA, AND THAT UNDER SUBSEQUENT PERMANENT CHANGE OF STATION ORDERS OF SEPTEMBER 9, 1959, YOU WERE AUTHORIZED TO SHIP YOUR PERMANENT CHANGE OF STATION WEIGHT ALLOWANCE AND TO TEMPORARY STORAGE AT DESTINATION.

PARAGRAPH 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), PROVIDES IN CONNECTION WITH A CHANGE OF STATION THAT MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO TRANSPORTATION (INCLUDING PACKING, CRATING, TEMPORARY STORAGE AND UNPACKING) OF BAGGAGE AND HOUSEHOLD EFFECTS TO AND FROM SUCH LOCATIONS AND WITHIN SUCH WEIGHT ALLOWANCES AS MAY BE PRESCRIBED BY THE SECRETARIES. PARAGRAPH 8002 OF THE JOINT TRAVEL REGULATIONS IN EFFECT AT THE TIME HERE INVOLVED SETS FORTH NET WEIGHT ALLOWANCES OF HOUSEHOLD EFFECTS WHICH MAY BE SHIPPED UPON TEMPORARY CHANGE OF STATION AND UPON PERMANENT CHANGE OF STATION. PARAGRAPH 8000-6 OF THE REGULATIONS PROVIDES THAT A PERMANENT CHANGE OF STATION INCLUDES THE CHANGE FROM HOME TO FIRST PERMANENT DUTY STATION UPON APPOINTMENT, REAPPOINTMENT OR ENLISTMENT INTO THE SERVICE. THE REGULATIONS DO NOT PROVIDE FOR TEMPORARY STORAGE IN CONNECTION WITH A TEMPORARY CHANGE OF STATION WEIGHT ALLOWANCE SHIPMENT OF HOUSEHOLD GOODS.

WHILE PARAGRAPH 8202 OF THE SAME REGULATIONS PROVIDES THAT WHEN A MEMBER IS UNDER ORDERS FROM A PERMANENT DUTY STATION TO A TEMPORARY STATION PENDING FURTHER ASSIGNMENT TO DUTY ABROAD OR TO SEA DUTY HIS HOUSEHOLD GOODS, WITHIN THE PRESCRIBED PERMANENT CHANGE OF STATION WEIGHT ALLOWANCE, MAY BE SHIPPED TO ANY POINT IN THE UNITED STATES, THE ORDERS OF MAY 6, 1959, WERE NOT SUCH ORDERS BUT WERE MERELY ORDERS TO TEMPORARY DUTY AND FURTHER ASSIGNMENT. THERE IS NO INDICATION IN THOSE ORDERS OF FURTHER ASSIGNMENT ABROAD OR TO DUTY ABOARD A VESSEL BASED ON THE WEST COAST. THUS, THERE WAS NO AUTHORITY UNDER THOSE ORDERS FOR SHIPMENT OF YOUR PERMANENT CHANGE OF STATION WEIGHT ALLOWANCE OF HOUSEHOLD GOODS FROM SIOUX CITY TO SAN DIEGO, OR FOR TEMPORARY STORAGE AT DESTINATION. THE FACT THAT YOU WERE SUBSEQUENTLY ASSIGNED TO DUTY ABOARD A VESSEL AT LONG BEACH BY ORDERS DATED SEPTEMBER 9, 1959, HAS NO BEARING ON YOUR CASE SINCE THE SHIPMENT AND STORAGE WERE NOT INCIDENT TO THOSE ORDERS BUT WERE ACCOMPLISHED LONG BEFORE THOSE ORDERS WERE ISSUED.

WITH RESPECT TO YOUR CONTENTION THAT THE SHIPMENT AND STORAGE RESULTED FROM ERRONEOUS ADVICE FURNISHED BY PERSONNEL AT THE AIR FORCE BASE, SIOUX CITY, IOWA, IT IS REPORTED BY THE TRANSPORTATION OFFICE AT THAT BASE THAT WHEN YOU MADE APPLICATION FOR SHIPMENT AND STORAGE OF YOUR HOUSEHOLD GOODS, YOU REPRESENTED THAT YOUR ORDERS OF MAY 9, 1959, WERE FOR A PERMANENT CHANGE OF STATION AND WOULD PERMIT SUCH SHIPMENT AND STORAGE. THE RECORD SHOWS THAT THE AIR FORCE BASE AT SIOUX CITY WAS NOT AWARE OF THE FACT THAT YOUR ORDERS WERE TO TEMPORARY DUTY. IT MAY BE STATED, HOWEVER, THAT EVEN IF YOUR CONTENTION WERE ESTABLISHED AS A FACT, IT WOULD AFFORD NO BASIS FOR THE PAYMENT OF YOUR CLAIM, IT BEING WELL ESTABLISHED THAT, IN THE ABSENCE OF A STATUTE SO PROVIDING, THE GOVERNMENT IS NOT LIABLE FOR LOSS OR DAMAGE RESULTING FROM NEGLIGENT ACTS OR OMISSIONS OF DUTY OF OFFICERS OR AGENTS EMPLOYED IN THE SERVICE. SEE ROBERTSON V. SICHEL, 127 U.S. 505, 515, AND CASES CITED THEREIN.

ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 10, 1961, WAS CORRECT AND IS SUSTAINED.