B-153932, JUL. 16, 1964

B-153932: Jul 16, 1964

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USAF: REFERENCE IS AGAIN MADE TO YOUR LETTER OF APRIL 8. YOU WERE RELIEVED FROM DUTY AT THAT HEADQUARTERS AND DIRECTED TO REPORT ON AUGUST 15. THOSE ORDERS WERE AMENDED ON AUGUST 30. WHICH WERE STORED IN CHEYENNE DURING THE PERIOD OF YOUR OVERSEAS TOUR OF DUTY. WERE SHIPPED AS EXCESS WEIGHT SUBJECT TO THE REQUIREMENTS OF PARAGRAPH 8007. UPON MODIFICATION OF THE ORDER WERE RESHIPPED TO FORT WORTH. YOU WERE CHARGED WITH THE COSTS OF THOSE SHIPMENTS. DETERMINED THAT YOU WERE ENTITLED TO AN ALLOWANCE OF 463 POUNDS TO COVER THE WEIGHT OF ADDITIONAL PROFESSIONAL ITEMS AND THEREFORE REDUCED YOUR INDEBTEDNESS FROM $717.10 TO $512.60. THE COMPUTATION OF THE AMOUNT OF $512.60 IS REFLECTED ON DD FORM 139.

B-153932, JUL. 16, 1964

TO MAJOR ALBERT P. SARNO, USAF:

REFERENCE IS AGAIN MADE TO YOUR LETTER OF APRIL 8, 1964, WITH ENCLOSURES, CONCERNING THE MATTER OF YOUR INDEBTEDNESS IN THE AMOUNT OF $512.60, AS DETERMINED BY THE TRANSPORTATION DIVISION, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, BY REASON OF EXCESS WEIGHT IN CONNECTION WITH THE MOVEMENT OF YOUR HOUSEHOLD GOODS FROM CHEYENNE, WYOMING, TO COLUMBUS, OHIO, AND THENCE TO FORT WORTH, TEXAS.

BY SPECIAL ORDER AA-336, HEADQUARTERS, 3970TH COMBAT SUPPORT GROUP (SAC), DATED JULY 3, 1962, YOU WERE RELIEVED FROM DUTY AT THAT HEADQUARTERS AND DIRECTED TO REPORT ON AUGUST 15, 1962, FOR SURFACE TRANSPORTATION TO THE UNITED STATES, AND TO THE COMMANDER, 801 COMBAT SUPPORT GROUP, SAC, LOCKBOURNE AIR FORCE BASE, OHIO, NOT LATER THAN 32 DAYS AFTER DEPARTURE FROM THE CONTINENTAL UNITED STATES PORT OF ENTRY UNIT. THOSE ORDERS WERE AMENDED ON AUGUST 30, 1962, BY SPECIAL ORDER AA-443, DIRECTING YOU TO REPORT TO THE COMMANDER, 820 STRATEGIC AEROSPACE DIVISION, SAC, PLATTSBURGH AIR FORCE BASE, NEW YORK, NOT LATER THAN 31 DAYS AFTER DEPARTURE FROM THE MENTIONED PORT OF ENTRY UNIT, AND AGAIN AMENDED ON SEPTEMBER 6, 1962, BY SPECIAL ORDER AA-455, DIRECTING YOU TO REPORT TO THE COMMANDER, 19 AIR DIVISION, SAC, CARSWELL AIR FORCE BASE, TEXAS, NOT LATER THAN 37 DAYS AFTER DEPARTURE FROM THE PORT OF ENTRY UNIT. ON THE BASIS OF THE ORIGINAL ORDER SOME OF YOUR HOUSEHOLD EFFECTS, WHICH WERE STORED IN CHEYENNE DURING THE PERIOD OF YOUR OVERSEAS TOUR OF DUTY, WERE SHIPPED AS EXCESS WEIGHT SUBJECT TO THE REQUIREMENTS OF PARAGRAPH 8007, JOINT TRAVEL REGULATIONS, TO COLUMBUS, OHIO, AND UPON MODIFICATION OF THE ORDER WERE RESHIPPED TO FORT WORTH, TEXAS. YOU WERE CHARGED WITH THE COSTS OF THOSE SHIPMENTS, AND WHEN YOU PROTESTED SUCH CHARGES IN LETTER OF NOVEMBER 7, 1963, THE DIRECTORATE OF TRANSPORTATION, DEPARTMENT OF THE AIR FORCE, AND THE TRANSPORTATION DIVISION, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, DETERMINED THAT YOU WERE ENTITLED TO AN ALLOWANCE OF 463 POUNDS TO COVER THE WEIGHT OF ADDITIONAL PROFESSIONAL ITEMS AND THEREFORE REDUCED YOUR INDEBTEDNESS FROM $717.10 TO $512.60. THE COMPUTATION OF THE AMOUNT OF $512.60 IS REFLECTED ON DD FORM 139, DATED MARCH 13, 1964, WHICH THE TRANSPORTATION DIVISION FURNISHED TO YOU.

YOU HAVE DIRECTED AN APPEAL TO THIS OFFICE BY YOUR LETTER OF APRIL 8, 1964, AND SAY IN SUBSTANCE THAT YOU ARE WILLING TO PAY FOR THE SHIPPING COSTS OF THE EXCESS WEIGHT FROM CHEYENNE, WYOMING, DIRECT TO CARSWELL AIR FORCE BASE, TEXAS, BUT THAT YOU DO NOT FEEL THAT YOU ARE LIABLE FOR THE ADDITIONAL COSTS OCCASIONED AS A RESULT OF THE SHIPMENT BEING MADE VIA COLUMBUS, OHIO, THROUGH NO FAULT OF YOURS, BUT DUE TO THE NEGLIGENCE OF THE TRANSPORTATION OFFICERS HANDLING YOUR EFFECTS.

WHILE WE REALIZE THAT THE MODIFICATION OF YOUR ORDERS, WHICH NECESSITATED A RESHIPMENT OF YOUR HOUSEHOLD EFFECTS TO FORT WORTH AFTER ARRIVAL AT COLUMBUS WAS BEYOND YOUR CONTROL, AND WHILE WE UNDERSTAND YOUR POSITION IN THIS MATTER, THERE PREVIOUSLY WAS SHIPPED AT GOVERNMENT EXPENSE UNDER YOUR CHANGE OF STATION ORDERS THE MAXIMUM WEIGHT OF HOUSEHOLD EFFECTS AUTHORIZED UNDER THE LAW FOR YOUR RANK, AND THE EFFECTS SHIPPED FROM CHEYENNE REPRESENTED WEIGHT IN EXCESS OF THAT MAXIMUM ALLOWABLE WEIGHT. PARAGRAPH 8007 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT ANY EXCESS COSTS RESULTING FROM TRANSPORTATION OF HOUSEHOLD GOODS IN EXCESS OF THE PRESCRIBED WEIGHT ALLOWANCE SHALL BE BORNE BY THE MEMBER, AND THAT WHEN THE PRESCRIBED WEIGHT ALLOWANCE HAS BEEN EXHAUSTED BY PREVIOUS SHIPMENTS ANY SUBSEQUENT SHIPMENTS ON THE SAME ORDERS WILL BE ARRANGED AT THE EXPENSE OF THE MEMBER ON COMMERCIAL BILLS OF LADING. THEREFORE YOU ARE CHARGEABLE FOR THE ENTIRE COSTS PAID BY THE GOVERNMENT IN CONNECTION WITH SUCH EXCESS WEIGHT NOTWITHSTANDING THAT SUCH COSTS MAY HAVE BEEN INCREASED BY THE REQUIREMENT OF SEVERAL SHIPMENTS OCCASIONED BY THE MODIFICATION OF THE ORIGINAL ORDERS. IN THIS CONNECTION IT MAY BE POINTED OUT THAT THE ASSIGNMENT OR REASSIGNMENT OF MEMBERS OF THE UNIFORMED SERVICES TO A NEW DUTY STATION IS, OF COURSE, A MATTER PRIMARILY WITHIN THE JURISDICTION OF THE SERVICE CONCERNED IN THE LIGHT OF THE MILITARY RESPONSIBILITIES OF THAT SERVICE. CONCERNING YOUR ASSERTION THAT YOU SHOULD NOT BE REQUIRED TO PAY FOR THE NEGLIGENT ACTS OF GOVERNMENT PERSONNEL, YOU ARE ADVISED THAT IF IT OTHERWISE COULD BE ESTABLISHED THAT NEGLIGENCE WAS INVOLVED IN THE HANDLING OF YOUR EFFECTS IT IS WELL ESTABLISHED THAT, IN THE ABSENCE OF SPECIFIC STATUTORY PROVISIONS, THE UNITED STATES IS NOT LIABLE FOR NEGLIGENT ACTIONS OF ITS OFFICERS, AGENTS OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. GERMAN BANK V. UNITED STATES, 148 U.S. 573; 19 COMP. GEN. 503; 22 COMP. GEN. 221.

WE ARE NOT UNMINDFUL OF THE ACT OF DECEMBER 23, 1963, PUBLIC LAW 88 238, 77 STAT. 475, EFFECTIVE OCTOBER 1, 1949, WHICH PROVIDES THAT A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES UNDER 37 U.S.C. 404 AND TO TRANSPORTATION OF HIS DEPENDENTS, BAGGAGE AND HOUSEHOLD EFFECTS UNDER 37 U.S.C. 406 AND 409, IF OTHERWISE QUALIFIED, FOR TRAVEL PERFORMED BEFORE THE EFFECTIVE DATE OF ORDERS THAT DIRECT HIM TO MAKE A CHANGE OF STATION AND THAT ARE LATER CANCELED, REVOKED, OR MODIFIED TO DIRECT HIM TO RETURN TO THE OLD DUTY STATION OR TO MAKE A DIFFERENT CHANGE OF STATION. SINCE ONLY EXCESS WEIGHT IS INVOLVED IN CONNECTION WITH THE MOVEMENT OF THE HOUSEHOLD EFFECTS IN QUESTION AND SINCE THE SHIPPING COST RESULTING FROM EXCESS WEIGHT MOVEMENTS OF MEMBERS OF THE UNIFORMED SERVICES IS NOT AN OBLIGATION OF THE GOVERNMENT IN ANY EVENT, IT IS OUR VIEW THAT THE ACT OF DECEMBER 23, 1963, IS NOT FOR APPLICATION IN YOUR CASE.

IT APPEARS THAT THE ACTION TAKEN BY THE TRANSPORTATION DIVISION, FINANCE CENTER, U.S. ARMY, IN YOUR CASE WAS PROPER AND IN ACCORDANCE WITH THE GOVERNING LAW AND REGULATIONS. THEREFORE YOU SHOULD ARRANGE TO PAY THE AMOUNT DUE TO THE TRANSPORTATION DIVISION. A COPY OF THIS LETTER IS BEING FURNISHED THIS DATE TO THAT DIVISION FOR THEIR INFORMATION.