B-153673, JUN. 8, 1964

B-153673: Jun 8, 1964

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RETIRED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 25. THERE IS ALSO BEFORE US YOUR LETTER OF APRIL 7. WAS SHIPPED FROM YOUR HOME IN BILOXI. THE SECOND LOT OF YOUR HOUSEHOLD EFFECTS WAS PACKED BY THE BILOXI TRANSFER AND STORAGE COMPANY. THE SECOND LOT OF HOUSEHOLD EFFECTS WAS REMOVED FROM THE WAREHOUSE IN BILOXI BY THE WHEATON VAN LINES. - WAS $35.14 AND CHARGED YOU FOR THAT AMOUNT. ON THE BASIS THAT THE RECORDS SHOWED THE SHIPMENTS OF YOUR HOUSEHOLD EFFECTS WERE IN EXCESS OF YOUR AUTHORIZED WEIGHT ALLOWANCE AND. REFUND WAS NOT AUTHORIZED. ARE AUTHORIZED FOR SHIPMENT. SUCH WEIGHTS ARE SET FORTH FOR RANKS AND GRADES AND PROVISION IS MADE FOR A PERCENTAGE INCREASE TO ALLOW FOR PACKING AND CRATING (5.263 PERCENT UNDER AIR FORCE REGULATIONS FOR SHIPMENT BY VAN).

B-153673, JUN. 8, 1964

TO MASTER SERGEANT HOWARD D. HAUGEN, USAF, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 25, 1964, CONCERNING YOUR CLAIM FOR REFUND OF THE AMOUNT OF $35.14, DEDUCTED FROM YOUR RETIRED PAY ON ACCOUNT OF EXCESS COSTS IN CONNECTION WITH THE SHIPMENTS OF YOUR HOUSEHOLD EFFECTS FROM BILOXI, MISSISSIPPI, TO GREENSBORO, NORTH CAROLINA, INCIDENT TO YOUR RETIREMENT FROM THE AIR FORCE EFFECTIVE DECEMBER 1, 1961. THERE IS ALSO BEFORE US YOUR LETTER OF APRIL 7, 1964, REGARDING THIS MATTER.

THE RECORD BEFORE US SHOWS THAT ON NOVEMBER 3, 1961, ONE LOT OF YOUR HOUSEHOLD EFFECTS, WEIGHING 2,240 POUNDS, WAS SHIPPED FROM YOUR HOME IN BILOXI, MISSISSIPPI, TO THE CARRIER'S STORAGE WAREHOUSE IN GREENSBORO, NORTH CAROLINA. THE SECOND LOT OF YOUR HOUSEHOLD EFFECTS WAS PACKED BY THE BILOXI TRANSFER AND STORAGE COMPANY, INCORPORATED, ON NOVEMBER 6, 1961, AND PLACED IN THEIR WAREHOUSE IN BILOXI FOR NONTEMPORARY STORAGE. COPY OF THEIR INVENTORY SHOWS THE WEIGHT OF THAT LOT AS 4,020 POUNDS AND A COPY OF THE WEIGHT CERTIFICATE DATED NOVEMBER 6, 1961, FURNISHED BY YOUR LETTER OF OCTOBER 9, 1963, AN IDENTICAL WEIGHT (GROSS WEIGHT OF VAN 16,220 POUNDS LESS TARE WEIGHT OF 12,200 POUNDS). ON FEBRUARY 2, 1962, THE SECOND LOT OF HOUSEHOLD EFFECTS WAS REMOVED FROM THE WAREHOUSE IN BILOXI BY THE WHEATON VAN LINES, INCORPORATED, AND DELIVERED TO YOUR SELECTED HOME IN GREENSBORO ON FEBRUARY 12, 1962. THE WEIGHT CERTIFICATE DATED FEBRUARY 3, 1962, ATTACHED TO THE VOUCHER COVERING THE PAYMENT TO THE CARRIER, SHOWS THE WEIGHT OF THAT SHIPMENT AS 4,195 POUNDS (GROSS WEIGHT OF VAN 36,475 LESS TARE WEIGHT OF 32,280 POUNDS). ON THE BASIS OF THAT WEIGHT CERTIFICATE, THE AIR FORCE FOUND THAT THE AGGREGATE WEIGHT OF THE TWO SHIPMENTS OF YOUR HOUSEHOLD EFFECTS, 6,435 POUNDS (2,240 POUNDS PLUS 4,195 POUNDS), EXCEEDED YOUR AUTHORIZED ALLOWANCE OF 6,316 POUNDS (6,000 POUNDS PLUS 5.263 PERCENT FOR PACKING) AND, ACCORDINGLY, DETERMINED THAT THE EXCESS COST RESULTING THEREFROM WHEN ADDED TO THE ADDITIONAL EXCESS COST RESULTING FROM THE TWO SEPARATE SHIPMENTS--- THE REGULATIONS PROVIDING FOR ONLY ONE SHIPMENT OF HOUSEHOLD EFFECTS AT THE AUTHORIZED WEIGHT--- WAS $35.14 AND CHARGED YOU FOR THAT AMOUNT. THE AIR FORCE DEDUCTED THE FULL AMOUNT OF $35.14 FROM YOUR RETIRED PAY AND YOU PRESENTED A CLAIM FOR THAT AMOUNT TO THIS OFFICE BY LETTER OF OCTOBER 9, 1963. OUT CLAIMS DIVISION DISALLOWED THE CLAIMS BY SETTLEMENT DATED FEBRUARY 18, 1964, ON THE BASIS THAT THE RECORDS SHOWED THE SHIPMENTS OF YOUR HOUSEHOLD EFFECTS WERE IN EXCESS OF YOUR AUTHORIZED WEIGHT ALLOWANCE AND, THEREFORE, REFUND WAS NOT AUTHORIZED.

IN YOUR LETTER OF FEBRUARY 25, 1964, YOU QUESTION THE PROPRIETY OF THE SETTLEMENT OF FEBRUARY 18, 1964, AND YOU ASSERT THAT INASMUCH AS THE WEIGHT CERTIFICATE OF NOVEMBER 6, 1961, REFLECTS THE WEIGHT OF THE SECOND LOT OF HOUSEHOLD EFFECTS AS 4,020 POUNDS, SUCH GOODS COULD NOT "GAIN 175 POUNDS SITTING IN A WAREHOUSE.' ALSO, YOU REQUEST COPIES OF THE OFFICIAL RECORDS FOR THE PURPOSE OF REQUESTING LEGAL AID FROM THE "ADJUTANT GENERAL'S OFFICE.'

THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO AUTHORITY CONTAINED IN SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), IN EFFECT DURING THE PERIOD HERE INVOLVED, PROVIDE (PARAGRAPH 8002, CHANGE 108, OCTOBER 1, 1961) THAT HOUSEHOLD EFFECTS WITHIN SPECIFIED WEIGHT ALLOWANCES, DESIGNATED AS NET WEIGHTS, ARE AUTHORIZED FOR SHIPMENT. SUCH WEIGHTS ARE SET FORTH FOR RANKS AND GRADES AND PROVISION IS MADE FOR A PERCENTAGE INCREASE TO ALLOW FOR PACKING AND CRATING (5.263 PERCENT UNDER AIR FORCE REGULATIONS FOR SHIPMENT BY VAN). THE REGULATIONS CONTEMPLATE THAT SUCH SHIPMENTS AT GOVERNMENT EXPENSE SHALL BE ON THE BASIS OF THE WEIGHT AS PACKED FOR SHIPMENT, AT NOT TO EXCEED AN OVER-ALL WEIGHT ALLOWANCE OF NET WEIGHT PLUS AN ALLOWANCE FOR PACKING AND CRATING. SUCH OVER-ALL WEIGHT ALLOWANCE, OF WHICH THE NET WEIGHT OF THE HOUSEHOLD GOODS IS BUT ONE COMPONENT PART, REPRESENTS THE NET WEIGHT ALLOWANCE SET FORTH IN THE REGULATIONS. THE GOVERNMENT IS OBLIGED TO PAY THE CARRIER FOR THE TOTAL WEIGHT SHIPPED. WEIGHTS IN EXCESS OF THE MAXIMUM OVER-ALL WEIGHT FIXED BY THE REGULATIONS PROPERLY ARE CHARGEABLE TO THE MILITARY MEMBER.

THE MOVEMENT OF YOUR HOUSEHOLD EFFECTS TO GREENSBORO WAS ACCOMPLISHED BY TWO SEPARATE SHIPMENTS RATHER THAN ONE SHIPMENT AS CONTEMPLATED BY PARAGRAPH 8009, CHANGE 108, OCTOBER 1, 1961, JOINT TRAVEL REGULATIONS. YOU WERE FULLY ADVISED IN THIS RESPECT BY THE AIR FORCE IN THEIR LETTERS OF AUGUST 16 AND OCTOBER 10, 1962. HENCE THE AIR FORCE PROPERLY DETERMINED UNDER THE REGULATIONS THAT THE AGGREGATE GROSS WEIGHT OF THE TWO SHIPMENTS OF HOUSEHOLD EFFECTS, SHOWN BY ACCEPTABLE WEIGHT CERTIFICATES AS 6,435 POUNDS, REPRESENTED AN EXCESS OF 119 POUNDS OVER THE ALLOWABLE GROSS WEIGHT, 6,316 POUNDS (6,000 POUNDS PLUS 5.263 PERCENT FOR PACKING), AND PROPERLY CHARGED YOU WITH THE EXCESS COST.

WHILE THE WEIGHT CERTIFICATE DATED NOVEMBER 6, 1961, OBTAINED BY BILOXI TRANSFER AND STORAGE COMPANY ON THE GOVERNMENT SCALES AT KEESLER AIR FORCE BASE SHOWS THAT THE WEIGHT OF YOUR HOUSEHOLD EFFECTS WAS 4,020 POUNDS AT THE TIME IT WAS PLACED IN STORAGE, THAT WEIGHT CERTIFICATE IN THE ABSENCE OF SUBSTANTIATING EVIDENCE CANNOT BE CONSIDERED CONCLUSIVELY ESTABLISHING THAT SUCH HOUSEHOLD EFFECTS WHEN REMOVED FROM STORAGE ALMOST 3 MONTHS LATER DID NOT WEIGHT 4,195 POUNDS AS SHOWN BY THE WEIGHT CERTIFICATE DATED FEBRUARY 3, 1962, OBTAINED BY THE WHEATON VAN LINES ON KEESLER AIR FORCE BASE SCALES. AS YOU WERE ADVISED BY THE AIR FORCE, VARIATIONS IN WEIGHTS MAY OCCUR BECAUSE OF CERTAIN FACTORS SUCH AS ADJUSTMENT OF SCALES, ETC. THE ADMINISTRATIVE OFFICE HAS DETERMINED THAT THE WEIGHT OF YOUR EFFECTS WHEN REMOVED FROM STORAGE AS SHOWN BY THE CERTIFICATE OF FEBRUARY 3, 1962, WAS THE PROPER WEIGHT. THE GOVERNMENT WAS OBLIGATED TO PAY THE CARRIER THE FULL COSTS OF THE WEIGHT CERTIFICATE SHOWING A WEIGHT OF 4,195 POUNDS. MOREOVER, CONTRARY TO YOUR APPARENT BELIEF, AS INDICATED IN YOUR LETTER OF APRIL 7, 1964, THAT THE INCREASED WEIGHT OF YOUR EFFECTS WAS KNOW 4 DAYS PRIOR TO WEIGHING, WE HAVE EXAMINED THE ORIGINAL GOVERNMENT BILL OF LADING NO. B-2581098 (ORDER NO. 235-297) AND WHILE THAT DOCUMENT WAS ISSUED ON JANUARY 30, 1962, IT APPEARS THAT THE PERTINENT WEIGHT INFORMATION RESPECTING YOUR EFFECTS WAS NOT ENTERED ON THAT DOCUMENT PRIOR TO FEBRUARY 3, 1962, THE DATE YOUR EFFECTS WERE ACTUALLY WEIGHED AS SHOWN BY THAT WEIGHT CERTIFICATE. HENCE, SINCE THE GOVERNMENT HAS NO CLEAR AND CONVINCING EVIDENCE TO REFUTE OR CONTRAVENE THE WEIGHT CERTIFICATE OF FEBRUARY 3, 1962, NO LEGAL BASIS EXISTS FOR ANY COLLECTION ACTION AGAINST THE CARRIER IN THIS MATTER. ACCORDINGLY, IN THE BASIS OF THE RECORD BEFORE US, AND SINCE UNDER THE REGULATIONS YOU WERE REQUIRED TO BE CHARGED WITH THE COST OF THE EXCESS WEIGHT, THE SETTLEMENT OF FEBRUARY 18, 1964, IS SUSTAINED.

CONCERNING YOUR REQUEST FOR COPIES OF THE OFFICIAL RECORDS, WE MAY ADVISE YOU THAT PARAGRAPH 8002-3, CHANGE 110, DECEMBER 1, 1961, JOINT TRAVEL REGULATIONS, PROVIDED THAT THE APPROPRIATE AUTHORITY OF THE AIR FORCE MAY CONSIDER CERTAIN CASES INVOLVING EXCESS COST WITH A VIEW TO AUTHORIZING A DEVIATION FROM THE WEIGHT ALLOWANCE AS SET FORTH IN THE REGULATIONS. THE AIR FORCE REGULATION WHICH IMPLEMENTED THAT PARTICULAR PARAGRAPH WAS EMBODIED IN PARAGRAPH 5707 (D) OF AIR FORCE MANUAL 75-4A, NOVEMBER 20, 1961, AND PROVIDED THAT WHEN A DETERMINATION HAD BEEN MADE THAT A MEMBER WOULD BE UNJUSTLY CHARGED FOR EXCESS COSTS AFTER THE APPLICATION OF THE FORMULAS IN SUBPARAGRAPHS (B) AND (C) OF THE PARAGRAPH THE CASE MAY BE REFERRED TO "HQ USAF (AFSTP-MC) FOR REVIEW AND DETERMINATION.' SINCE THE FILE SHOWS THAT THE HEADQUARTERS, UNITED STATES AIR FORCE, IN A LETTER OF JUNE 5, 1963, FILE REFERENCE AFSTPEC, REVIEWED YOUR CASE AND DETERMINED THAT THE EXCESS COST BILLED TO YOU WERE PROPER FOR COLLECTION, IT WOULD APPEAR THAT THE APPROPRIATE AUTHORITY OF THE AIR FORCE HAS CONSIDERED YOUR CASE UNDER THE ABOVE-MENTIONED PARAGRAPH 8002-3. AS THEY HAVE ALREADY MADE A DETERMINATION IN YOUR CASE, ALTHOUGH UNFAVORABLE, APPARENTLY NO PURPOSE WOULD BE SERVED BY ANY FURTHER PRESENTATION OF YOUR CASE TO THAT AUTHORITY. WE MAY ADD THAT THE DECISIONS OF THE COMPTROLLER GENERAL ARE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. SEE 31 U.S.C. 71, 64. YOU ARE FURTHER ADVISED THAT THE PAPERS PRESENTED IN SUPPORT OF YOUR CLAIM HAVE BECOME A PART OF THE PERMANENT RECORDS OF THIS OFFICE AND MAY NOT BE RETURNED TO YOU. THERE ARE ENCLOSED, HOWEVER, COPIES OF ALL PERTINENT PAPERS WHICH YOU HAD SUBMITTED WITH YOUR CLAIM.