B-150248, DECEMBER 28, 1962, 42 COMP. GEN. 332

B-150248: Dec 28, 1962

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IS DETERMINED TO HAVE BEEN IMPROPER. THE INFORMATION FURNISHED SHOWS THAT THE CIVILIAN EMPLOYEE WAS SEPARATED DUE TO A REDUCTION IN FORCE FROM HIS POSITION OVERSEAS WITH THE DEPARTMENT OF THE ARMY ON JULY 24. THE BOARD OF APPEALS AND REVIEW RENDERED A DECISION THAT THE SEPARATION BY REDUCTION IN FORCE WAS IMPROPER. HOUSEHOLD GOODS HAD BEEN RETURNED TO HIS PLACE OF ACTUAL RESIDENCE IN THE UNITED STATES AT GOVERNMENT EXPENSE BECAUSE HE WAS REQUIRED TO VACATE GOVERNMENT HOUSING IN STUTTGART. THERE WAS EXCESS WEIGHT IN THE AMOUNT OF 3. IF THE DECISION OF THE UNITED STATES CIVIL SERVICE COMMISSION IS MEANINGFUL. BE RETURNED TO THE OVERSEAS STATION FROM WHICH SUCH GOODS WERE IMPROPERLY REMOVED.

B-150248, DECEMBER 28, 1962, 42 COMP. GEN. 332

TRANSPORTATION - HOUSEHOLD EFFECTS - OVERSEAS EMPLOYEES - REMOVALS, SUSPENSIONS, ETC. - EXCESS COST LIABILITY THE TRANSPORTATION OF HOUSEHOLD EFFECTS OF AN OVERSEAS EMPLOYEE IN EXCESS OF THE AUTHORIZED WEIGHT ALLOWANCE INCIDENT TO A REDUCTION IN FORCE ACTION WHICH, ON APPEAL, IS DETERMINED TO HAVE BEEN IMPROPER, DOES NOT COME UNDER THE BACK PAY ACT OF AUGUST 24, 1912, AS AMENDED, 5 U.S.C. 652, WHICH AUTHORIZES ONLY THE PAYMENT OF COMPENSATION NOT INCIDENTAL EXPENSES FOR IMPROPER REMOVALS, BUT MUST BE CONSIDERED AS TRANSPORTATION INCIDENT TO THE RETURN OF AN OVERSEAS EMPLOYEE FOR REASONS BEYOND HIS CONTROL, SUBJECT TO THE WEIGHT ALLOWANCE LIMITATION IN SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 5 U.S.C. 73B 3, AND EXECUTIVE ORDER NO. 9805, AS AMENDED; THEREFORE, THE EMPLOYEE MAY NOT BE RELIEVED OF PAYMENT FOR THE EXCESS WEIGHT COSTS IN THE TRANSPORTATION OF HIS HOUSEHOLD EFFECTS TO THE UNITED STATES AND RETURN TO THE OVERSEAS STATION UPON RESTORATION TO DUTY.

TO THE SECRETARY OF THE ARMY, DECEMBER 28, 1962:

THIS REFERS TO LETTER OF NOVEMBER 6, 1962, FROM THE UNDER SECRETARY OF THE ARMY, REQUESTING OUR DECISION WHETHER UNDER THE CIRCUMSTANCES RELATED BELOW THE DEPARTMENT OF THE ARMY MAY PAY FOR THE EXCESS COST OF SHIPMENT OF THE HOUSEHOLD GOODS OF A CIVILIAN EMPLOYEE.

THE INFORMATION FURNISHED SHOWS THAT THE CIVILIAN EMPLOYEE WAS SEPARATED DUE TO A REDUCTION IN FORCE FROM HIS POSITION OVERSEAS WITH THE DEPARTMENT OF THE ARMY ON JULY 24, 1961. HE APPEALED HIS SEPARATION TO THE UNITED STATES CIVIL SERVICE COMMISSION APPEALS EXAMINING OFFICE WHICH SUSTAINED THE SEPARATION ACTION OF THE OVERSEAS COMMAND. THE EMPLOYEE THEN APPEALED TO THE UNITED STATES CIVIL SERVICE COMMISSION BOARD OF APPEALS AND REVIEW. ON FEBRUARY 16, 1962, THE BOARD OF APPEALS AND REVIEW RENDERED A DECISION THAT THE SEPARATION BY REDUCTION IN FORCE WAS IMPROPER, REVERSED THE DECISION OF THE APPEALS EXAMINING OFFICE, AND DIRECTED RETROACTIVE RESTORATION OF THE EMPLOYEE BY THE OVERSEAS COMMAND.

IN THE MEANTIME, THE EMPLOYEE, HIS FAMILY, AND HOUSEHOLD GOODS HAD BEEN RETURNED TO HIS PLACE OF ACTUAL RESIDENCE IN THE UNITED STATES AT GOVERNMENT EXPENSE BECAUSE HE WAS REQUIRED TO VACATE GOVERNMENT HOUSING IN STUTTGART, GERMANY. ON THE RETURN SHIPMENT OF HOUSEHOLD GOODS TO THE UNITED STATES, THERE WAS EXCESS WEIGHT IN THE AMOUNT OF 3,362 POUNDS WHICH RESULTED IN A TOTAL AMOUNT OF $1,422.13 DUE THE GOVERNMENT IN EXCESS WEIGHT CHARGES. THE EMPLOYEE CONTENDS THAT SINCE HE HAS BEEN THE VICTIM OF THE IMPROPER PERSONNEL ACTION, HE SHOULD NOT BEAR THE FINANCIAL CONSEQUENCES OF THE WRONGDOING; AND THAT ALL OF THE HOUSEHOLD GOODS SHIPPED TO THE UNITED STATES MUST, IF THE DECISION OF THE UNITED STATES CIVIL SERVICE COMMISSION IS MEANINGFUL, BE RETURNED TO THE OVERSEAS STATION FROM WHICH SUCH GOODS WERE IMPROPERLY REMOVED.

THE UNDER SECRETARY OF THE ARMY SAYS THAT IN VIEW OF THE INTENT OF THE ACT OF JUNE 10, 1948, 5 U.S.C. 652, THAT AN "EMPLOYEE BE MADE WHOLE" WHEN HE IS RETROACTIVELY RESTORED TO A POSITION FROM WHICH HE HAS BEEN UNJUSTLY SEPARATED, THE DEPARTMENT CONCURS IN THE EMPLOYEE'S CONTENTION THAT HE SHOULD NOT BE CHARGED WITH THE EXCESS WEIGHT OF THE SHIPMENT TO THE UNITED STATES AND THAT ALL THE HOUSEHOLD GOODS (10,362 POUNDS NET WEIGHT) SHOULD BE RETURNED TO THE OVERSEAS STATION AT GOVERNMENT EXPENSE.

THE FOLLOWING QUESTIONS ARE PRESENTED FOR A DECISION BY OUR OFFICE:

A. IS COLLECTION OF THE $1,422.13 EXCESS HOUSEHOLD GOODS SHIPPING COSTS REQUIRED?

B. MAY THE TOTAL AMOUNT OF HOUSEHOLD GOODS RETURNED TO THE UNITED STATES BE RETURNED TO THE OVERSEAS STATION AT GOVERNMENT EXPENSE?

THE ACT OF JUNE 10, 1948, 62 STAT. 354, 5 U.S.C. 652, WHILE PROVIDING FOR PAYMENT OF ,COMPENSATION" COVERING PERIODS OF SEPARATION TO EMPLOYEES IMPROPERLY REMOVED OR SUSPENDED WITHOUT PAY FROM THE FEDERAL SERVICE, LESS AMOUNTS EARNED BY SUCH EMPLOYEES THROUGH EMPLOYMENT DURING SUCH PERIODS, DOES NOT AUTHORIZE REIMBURSEMENT OF INCIDENTAL EXPENSES OCCASIONED BY THE ADVERSE ACTION AND WOULD NOT BE APPLICABLE TO THE MATTER PRESENTED HERE.

SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, PUBLIC LAW 600, 60 STAT. 808, AS AMENDED, 5 U.S.C. 73B-3, PROVIDES FOR THE PAYMENT OF THE RETURN TRAVEL EXPENSES OF THE EMPLOYEE AND THE RETURN TRANSPORTATION OF THE IMMEDIATE FAMILY AND THE HOUSEHOLD GOODS OF THE EMPLOYEE ASSIGNED TO AN OVERSEAS LOCATION WHERE HE IS SEPARATED FOR REASONS BEYOND HIS CONTROL. WE CONSIDER THE RETURN TO THE UNITED STATES UNDER PROPER TRAVEL ORDERS INCIDENT TO THE SEPARATION ACTION IN THE CASE PRESENTED AS BEING FOR REASONS BEYOND THE EMPLOYEE'S CONTROL.

THE INFORMATION FURNISHED INDICATES THAT THE RETURN SHIPMENT TO THE UNITED STATES OF THE EMPLOYEE'S HOUSEHOLD GOODS TOOK PLACE PRIOR TO JUNE 1, 1962, AND OUR DECISION WILL BE BASED ON THAT ASSUMPTION. SECTION 1 OF PUBLIC LAW 600, 5 U.S.C. 73B-1, AND EXECUTIVE ORDER NO. 9805, AS AMENDED, PROMULGATED THEREUNDER, GOVERN THE ALLOWANCE AND PAYMENT FROM GOVERNMENT FUNDS FOR EXPENSES OF TRANSPORTATION OF HOUSEHOLD GOODS AND PERSONAL EFFECTS OF CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT TO OR FROM POINTS OUTSIDE THE CONTINENTAL UNITED STATES. BOTH THE STATUTE AND THE EXECUTIVE ORDER LIMIT THE WEIGHT OF THE GOODS AND EFFECTS WHICH MAY BE TRANSPORTED AT GOVERNMENT EXPENSE TO 7,000 POUNDS NET OF EMPLOYEES WITH FAMILIES. THERE IS NO PROVISION IN THE STATUTE OR REGULATIONS WHEREBY AN EMPLOYEE CAN BE RELIEVED OF EXCESS WEIGHT COSTS.

THEREFORE, QUESTION A IS ANSWERED IN THE AFFIRMATIVE.

THE RECORD INDICATES THAT THE EMPLOYEE'S HOUSEHOLD GOODS HAVE NOT AS YET BEEN RETURNED TO HIS OVERSEAS STATION. IF THAT ASSUMPTION BE CORRECT THE ALLOWANCES FOR THE RETURN TRANSPORTATION OVERSEAS OF THE HOUSEHOLD GOODS, IF OTHERWISE PROPER, WOULD BE GOVERNED BY BUREAU OF THE BUDGET CIRCULAR NO. A-56, EFFECTIVE JUNE 1, 1962, PROMULGATED PURSUANT TO PUBLIC LAW 600, 60 STAT. 806. SUBSECTIONS 1.7 AND 3.1LIMIT THE WEIGHT OF HOUSEHOLD GOODS THAT MAY BE TRANSPORTED AT GOVERNMENT EXPENSE OF EMPLOYEES WITH FAMILIES TO OR FROM POINTS OUTSIDE THE CONTINENTAL UNITED STATES AT NOT TO EXCEED 7,000 POUNDS NET WHERE ASCERTAINABLE. THE WEIGHT ALLOWANCE THAT MAY BE TRANSPORTED TO THE EMPLOYEE'S OVERSEAS STATION, WILL BE GOVERNED BY THE SUBSECTIONS OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, REFERRED TO ABOVE.