B-158287, FEB. 17, 1966

B-158287: Feb 17, 1966

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INF.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 21. THE SHIPMENTS WERE MADE ON GOVERNMENT BILLS OF LADING NOS. YOUR AVAILABLE ALLOWANCE FOR THE SECOND SHIPMENT WAS 3. 310 POUNDS FROM FRESNO THE EXCESS WEIGHT ON THAT SHIPMENT WAS 3. WHICH AMOUNT WAS COLLECTED FROM YOU. THE EXCESS COST WAS COMPUTED ON THE SHIPMENT FROM FRESNO. SINCE YOUR CONTENTIONS ARE NOT IN AGREEMENT WITH THE FACTS AS REPORTED BY THE DEPARTMENT OF THE ARMY AS SHOWN ABOVE. YOU WERE ADVISED IN THE SETTLEMENT THAT IN SUCH CASES THIS OFFICE MUST ACCEPT THE FACTS AS ADMINISTRATIVELY REPORTED AS CORRECT IN THE ABSENCE OF EVIDENCE TO OVERCOME THE PRESUMPTION THEREOF. WITH ENCLOSURES AS EVIDENCE SUFFICIENT TO REFUTE THE PRESUMPTION THAT THE ADMINISTRATIVE RECORDS ARE CORRECT.

B-158287, FEB. 17, 1966

TO LIEUTENANT COLONEL J. F. WAGNER, INF.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 21, 1965, REQUESTING REVIEW OF THE SETTLEMENT OF OCTOBER 19, 1965, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF PART OF THE EXCESS COST COLLECTED FROM YOU FOR SHIPPING AN EXCESS WEIGHT OF HOUSEHOLD EFFECTS FROM QUEZON CITY, PHILIPPINES, AND FRESNO, CALIFORNIA, TO JACKSONVILLE, FLORIDA.

THE SHIPMENTS WERE MADE ON GOVERNMENT BILLS OF LADING NOS. B 04991911 DATED SEPTEMBER 21, 1962, AND B-05531799 DATED NOVEMBER 8, 1962, RESPECTIVELY. SINCE YOU SHIPPED A NET WEIGHT OF 7,524 POUNDS ON THE FIRST SHIPMENT, YOUR AVAILABLE ALLOWANCE FOR THE SECOND SHIPMENT WAS 3,202 POUNDS COMPUTED AS FOLLOWS:

TABLE

WEIGHT ALLOWANCE 10,000 POUNDS

PLUS 5.263 PERCENT FOR PACKING 526 POUNDS

PLUS PROFESSIONAL BOOKS 200 POUNDS

10,726 POUNDS

LESS PREVIOUS SHIPMENT 7,524 POUNDS

3,202 POUNDS

SINCE YOU SHIPPED 6,310 POUNDS FROM FRESNO THE EXCESS WEIGHT ON THAT SHIPMENT WAS 3,108 POUNDS (6,310 LESS 3,202) RESULTING IN AN EXCESS COST OF $555.24, WHICH AMOUNT WAS COLLECTED FROM YOU. THUS, THE EXCESS COST WAS COMPUTED ON THE SHIPMENT FROM FRESNO.

IN PRESENTING YOUR CLAIM BY LETTER OF OCTOBER 5, 1965, WITH ENCLOSURES, YOU QUESTIONED THE WEIGHT OF 7,524 POUNDS ON THE SHIPMENT FROM QUEZON CITY, AS SHOWN ON THE GOVERNMENT BILL OF LADING. YOU CONTENDED THAT THE EXCESS WEIGHT OF THAT SHIPMENT SHOULD BE ESTABLISHED AT 1,139 POUNDS AND THE EXCESS COST AT $207.97, WHICH WOULD RESULT IN A REFUND OF $347.27. YOU BASED THIS ON THE ENCLOSURES, PARTICULARLY YOUR LETTER OF MAY 17, 1965, TO THE CHIEF OF TRANSPORTATION IN WHICH YOU FURNISHED COPIES OF INVENTORIES OF THE ITEMS OF HOUSEHOLD EFFECTS PREVIOUSLY SHIPPED BY YOU TO THE PHILIPPINES, FROM WHICH YOU DEDUCTED THE WEIGHT OF 21 ITEMS SOLD IN THE PHILIPPINES, ADDED THE WEIGHT OF 74 ITEMS PURCHASED THERE, AND ESTABLISHED THE WEIGHT OF THE ITEMS SOLD AND PURCHASED BY CONSIDERING EITHER (1) THE MANUFACTURER'S WEIGHT, (2) THE ACTUAL WEIGHT, OR (3) THE WEIGHT SHOWN IN A SEARS ROEBUCK CATALOG FOR LIKE ITEMS. ON THAT BASIS YOU CONTENDED THAT THE SHIPMENT FROM THE PHILIPPINES WEIGHED 4,829 POUNDS, AND SINCE THE SHIPMENT FROM FRESNO WEIGHED 6,310 POUNDS YOU SHIPPED A TOTAL OF 11,139 POUNDS, OR AN EXCESS WEIGHT OF 1,139 POUNDS. SINCE YOUR CONTENTIONS ARE NOT IN AGREEMENT WITH THE FACTS AS REPORTED BY THE DEPARTMENT OF THE ARMY AS SHOWN ABOVE, YOU WERE ADVISED IN THE SETTLEMENT THAT IN SUCH CASES THIS OFFICE MUST ACCEPT THE FACTS AS ADMINISTRATIVELY REPORTED AS CORRECT IN THE ABSENCE OF EVIDENCE TO OVERCOME THE PRESUMPTION THEREOF. IN YOUR PRESENT LETTER YOUR REFER TO YOUR LETTER OF OCTOBER 5, 1965, WITH ENCLOSURES AS EVIDENCE SUFFICIENT TO REFUTE THE PRESUMPTION THAT THE ADMINISTRATIVE RECORDS ARE CORRECT. ALSO, YOU ASK WHAT OTHER ACTION YOU MAY TAKE IN THE MATTER.

THE PERTINENT STATUTE, 37 U.S.C. 406, PROVIDES THAT UNDER SUCH CONDITIONS AND LIMITATIONS AS THE SECRETARIES MAY PRESCRIBE, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO TRANSPORTATION OF HOUSEHOLD EFFECTS IN CONNECTION WITH A CHANGE OF STATION. THE JOINT TRAVEL REGULATIONS IN EFFECT AT THE TIME HERE INVOLVED PROVIDE (PARAGRAPH M8002) THAT HOUSEHOLD EFFECTS WITHIN SPECIFIED WEIGHT ALLOWANCES, DESIGNATED AS ACTUAL NET WEIGHTS ARE AUTHORIZED FOR SHIPMENT. SUCH WEIGHTS FOR THE VARIOUS RANKS WERE SET FORTH IN PARAGRAPH M8003. PARAGRAPH M8002 FURTHER PROVIDES THAT WHEN THE ACTUAL NET WEIGHT OF UNPACKED AND UNCRATED HOUSEHOLD GOODS IS NOT KNOWN AND THE SHIPMENT IS BY MOTOR VAN OR SEA VAN THE NET WEIGHT OF HOUSEHOLD GOODS CHARGEABLE AGAINST THE MEMBER'S PRESCRIBED WEIGHT ALLOWANCE WILL BE DETERMINED BY DEDUCTING 5 PERCENT FROM THE GROSS WEIGHT OF THE SHIPMENT. IN YOUR CASE THE SAME RESULT WAS ACCOMPLISHED BY ADDING 5.263 PERCENT TO YOUR AUTHORIZED WEIGHT ALLOWANCE AND YOU WERE ALLOWED AN ADDITIONAL 200 POUNDS FOR THE WEIGHT OF YOUR PROFESSIONAL BOOKS AS PROVIDED IN PARAGRAPH M8004 OF THE JOINT TRAVEL REGULATIONS.

THE REGULATIONS CONTEMPLATE THE SHIPMENT AT GOVERNMENT EXPENSE OF HOUSEHOLD GOODS AS PACKED FOR SHIPMENT AT NOT TO EXCEED AN OVER-ALL WEIGHT ALLOWANCE OF NET WEIGHT PLUS AN ALLOWANCE FOR PACKING. SUCH OVER-ALL WEIGHT ALLOWANCE, OF WHICH THE NET WEIGHT OF THE HOUSEHOLD GOODS IS BUT ONE PART, REPRESENTS THE MAXIMUM WEIGHT THAT MAY BE SHIPPED AT GOVERNMENT EXPENSE IRRESPECTIVE OF WHETHER THE ACTUAL NET WEIGHT OF THE GOODS EXCEEDS THE NET ALLOWANCES SET FORTH IN THE REGULATIONS. WEIGHT EXCEEDING THE MAXIMUM OVER-ALL WEIGHT IS CHARGEABLE TO THE MEMBER. THE WEIGHT OF A PARTICULAR SHIPMENT MAY NOT BE DETERMINED ON THE BASIS OF A PRIOR SHIPMENT OR THE WEIGHT OF ARTICLES THE MEMBER MAY HAVE DISPOSED OF OR ACQUIRED BETWEEN SHIPMENTS. THUS, THE EVIDENCE SUBMITTED BY YOU MAY NOT BE ACCEPTED AS REFUTING THE ADMINISTRATIVE REPORT OF EXCESS WEIGHT OF 3,108 POUNDS.

THE QUESTION OF WHETHER AND TO WHAT EXTENT AUTHORIZED WEIGHTS HAVE BEEN EXCEEDED IN THE SHIPMENT OF HOUSEHOLD EFFECTS, AND THE EXCESS COST INVOLVED, ARE CONSIDERED TO BE MATTERS PRIMARILY FOR ADMINISTRATIVE DETERMINATION, AND WE ARE WITHOUT AUTHORITY TO QUESTION AN ADMINISTRATIVE DETERMINATION IN THAT REGARD IN THE ABSENCE OF EVIDENCE SHOWING IT TO BE CLEARLY IN ERROR.

AT THE TIME YOUR EFFECTS WERE SHIPPED THERE WAS IN EFFECT PARAGRAPH M8002 -3 OF THE JOINT TRAVEL REGULATIONS WHICH PROVIDES FOR REFERRAL TO APPROPRIATE AUTHORITY OF THE SERVICE CONCERNED FOR AUTHORIZATION TO DEVIATE FROM THE PRESCRIBED PACKING AND CRATING ALLOWANCES IN THOSE CASES WHERE THE TARE WEIGHTS ARE EXCESSIVE. THE RECORD INDICATES THAT YOUR CASE WAS CONSIDERED BY THE CHIEF OF TRANSPORTATION AND HE CONCLUDED THAT THE EXCESS COST BILLING WAS PROPER. SINCE THE HOUSEHOLD GOODS SHIPPED ON THE BILLS OF LADING INDICATED WERE DETERMINED ADMINISTRATIVELY UNDERPRESCRIBED PROCEDURES TO HAVE EXCEEDED YOUR AUTHORIZED WEIGHT ALLOWANCE, AND THE EVIDENCE SUBMITTED BY YOU MAY NOT BE ACCEPTED AS REFUTING SUCH DETERMINATION, YOU WERE PROPERLY CHARGED WITH EXCESS COST AND THERE IS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM. THEREFORE THE SETTLEMENT OF OCTOBER 19, 1965, WAS CORRECT.

OUR DECISIONS ARE CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. HOWEVER, THE UNITED STATES COURT OF CLAIMS HAS JURISDICTION TO CONSIDER CLAIMS OF THIS NATURE INDEPENDENTLY OF OUR ..END :