B-164451, SEPT. 11, 1968

B-164451, SEPT. 11, 1968

TO MAJOR EDWARD B. MACK:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 27, 1968, AND ENCLOSURE, CONCERNING YOUR CLAIM FOR REFUND OF $668.25, COLLECTED FROM YOU, REPRESENTING EXCESS COSTS INCURRED IN SHIPPING YOUR HOUSEHOLD GOODS FROM EL PASO, TEXAS, TO SAN FRANCISCO, CALIFORNIA, INCIDENT TO YOUR RETIREMENT FROM THE UNITED STATES ARMY.

THE ARMY FINANCE CENTER REPORTS THAT YOU SHIPPED 15,880 POUNDS OF HOUSEHOLD GOODS ON GOVERNMENT BILL OF LADING B-7032695, DATED JUNE 12, 1963, AND INCURRED EXCESS COSTS COMPUTED AS FOLLOWS:

15,880 POUNDS GROSS WEIGHT SHIPPED - 2,500 POUNDS PROFESSIONAL ITEMS

13,380 - 669 POUNDS PACKING (13,380 POUNDS X 5 PERCENT)

12,711 POUNDS NET WEIGHT SHIPPED CHARGEABLE AGAINST

ALLOWANCE $ 1,389.50 15,880 POUNDS $8.75 CWT. $ 353.25 ACCESSORIAL CHARGES

--------- $ 1,742.75 TOTAL COST OF SHIPMENT (DOES NOT INCLUDE

$10 CHARGE FOR APPLIANCE SERVICE) 12,711 POUNDS NET WEIGHT SHIPPED

8,500 POUNDS AUTHORIZED ALLOWANCE FOR CAPTAIN ------

4,211 POUNDS EXCESS WEIGHT

4,211 POUNDS EXCESS WEIGHT

222 POUNDS PACKING (4,211 POUNDS X 5.263 PERCENT) -- ---

4,433 POUNDS EXCESS WEIGHT SHIPPED

4,433 X $1,742.75 EQUALS $486.50 EXCESS COSTS OF SHIPMENT ------ 15,880 $285.84

THREE MONTHS' STORAGE ON 15,880 POUNDS

AT 60 CENTS CWT.

95.28 HANDLING ON 15,880 POUNDS AT 60 CENTS CWT.

269.96 DRAYAGE ON 15,880 POUNDS AT $1.70 CWT. -- --- $651.08

4,433 X $651.08EQUALS $181.75 ------ 15,880 $486.50 EXCESS COSTS OF SHIPMENT

181.75 EXCESS COSTS OF STORAGE, HANDLING AND

DRAYAGE ------- $668.25 TOTAL EXCESS COSTS

IN YOUR LETTER OF DECEMBER 5, 1967, TO OUR OFFICE, YOU SAY THAT AT THE TIME OF SHIPMENT OF YOUR HOUSEHOLD GOODS YOU WERE ADVISED BY THE FORT BLISS TRANSPORTATION OFFICE THAT THERE WAS NO LIMIT ON THE WEIGHT OF PROFESSIONAL BOOKS AND PAPERS THAT COULD BE SHIPPED IN ADDITION TO THE AUTHORIZED WEIGHT ALLOWANCE FOR YOUR GRADE. YOU CONTEND THAT THE 2,500 POUNDS YOU WERE ALLOWED FOR PROFESSIONAL ITEMS IS AN ARBITRARY ADMINISTRATIVE ALLOWANCE THAT IS NOT BASED ON LAW OR REGULATION IN EFFECT AT THE TIME OF SHIPMENT. FURTHER, YOU SAY THAT THERE WAS NO REQUIREMENT TO SUBMIT A CERTIFICATION AT THE TIME OF SHIPMENT WITH RESPECT TO THE PROFESSIONAL ITEMS SINCE THERE WAS NO LIMIT TO THE AMOUNT THAT COULD BE SHIPPED. IN YOUR STATEMENT OF CLAIM DATED JULY 24, 1967, TO OUR OFFICE, YOU SAY THAT YOU SHIPPED 27 FOOTLOCKERS, 40 CARTONS OF BOOKS AND 14 MISCELLANEOUS CARTONS WITH A TOTAL WEIGHT OF 7,420 POUNDS. APPARENTLY IT IS YOUR VIEW THAT THESE ITEMS SHOULD NOT HAVE BEEN CHARGED AGAINST YOUR AUTHORIZED WEIGHT ALLOWANCE.

SECTION 406 OF TITLE 37, U.S.C. 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 (INCLUDING FROM LAST DUTY STATION TO HOME). PARAGRAPH M8002 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT HOUSEHOLD GOODS NOT IN EXCESS OF THE WEIGHT LIMIT PRESCRIBED MAY BE TRANSPORTED AT GOVERNMENT EXPENSE. SUCH WEIGHTS FOR THE VARIOUS RANKS ARE SET FORTH IN PARAGRAPH M003. PARAGRAPH M8002 FURTHER PROVIDES THAT WHEN THE ACTUAL NET WEIGHT OF UNPACKED AND UNCRATED HOUSEHOLD GOODS IS NOT KNOWN AND SHIPMENT IS MADE IN UNCRATED CONDITION BY COMMERCIAL MOTOR 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.

PARAGRAPH M8004 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER, REGARDLESS OF RANK OR GRADE, IS ENTITLED TO TRANSPORTATION OF PROFESSIONAL BOOKS, PAPERS, AND EQUIPMENT WHEN CERTIFIED BY THE MEMBER AS BEING NECESSARY IN THE PERFORMANCE OF HIS OFFICIAL DUTIES AND THE WEIGHT THEREOF SHALL BE WITHOUT CHARGE AGAINST THE WEIGHT ALLOWANCE PRESCRIBED IN PARAGRAPH M8003.

PARAGRAPH 5-2 OF ARMY REGULATION 55-71 PROVIDES THAT AT THE TIME THE MEMBER MAKES APPLICATION FOR SHIPMENT OF HOUSEHOLD GOODS, THE TRANSPORTATION OFFICER WILL SATISFY HIMSELF THAT ONLY ITEMS QUALIFYING AS PROFESSIONAL BOOKS, PAPERS, AND EQUIPMENT ARE INCLUDED IN THE WEIGHT CITED IN ITEM 9, DD FORM 1299, APPLICATION FOR SHIPMENT OF HOUSEHOLD GOODS, AS SUCH WEIGHT MUST LATER BE VERIFIED BY THE TRANSPORTATION OFFICER IN ITEM 25 OF THE SAME FORM; AND THAT SUCH BOOKS, PAPERS, AND EQUIPMENT WILL BE PACKED SEPARATELY AND THE CONTAINERS MARKED ACCORDINGLY.

THE ARMY FINANCE CENTER DID NOT FURNISH OUR OFFICE A COPY OF YOUR APPLICATION, DD FORM 1299, SHOWING THE APPROXIMATE WEIGHT CLAIMED BY YOU FOR PROFESSIONAL ITEMS NOR DID IT STATE WHETHER YOUR PROFESSIONAL ITEMS WERE PACKED SEPARATELY AND THE CONTAINERS MARKED AS REQUIRED BY ARMY REGULATION 55-71. THE GOVERNMENT BILL OF LADING COVERING THE SHIPMENT OF YOUR EFFECTS, HOWEVER, SHOWS 2,500 POUNDS OF PROFESSIONAL ITEMS INCLUDED IN THE SHIPMENT, AND THE ARMY FINANCE CENTER SAID THAT IT WAS ON THAT BASIS THAT YOU WERE CREDITED WITH SUCH WEIGHT IN DETERMINING THE COSTS CHARGEABLE TO YOU FOR THE EXCESS WEIGHT OF THE SHIPMENT.

THUS, CONTRARY TO YOUR CONTENTIONS, THE 2,500 POUNDS ALLOWED FOR PROFESSIONAL ITEMS WAS NOT BASED ON ANY ADMINISTRATIVE REGULATION ARBITRARILY PROVIDING FOR SUCH MAXIMUM ALLOWANCE FOR THESE ITEMS, BUT WAS BASED ON THE WEIGHT SHOWN ON THE SHIPPING DOCUMENTS ISSUED CONTEMPORANEOUSLY WITH THE SHIPMENT.

THE RECORD BEFORE US DOES NOT SHOW HOW THE WEIGHT OF YOUR PROFESSIONAL ITEMS WAS DETERMINED, BUT UNDER THE REGULATIONS MENTIONED ABOVE, IT WAS YOUR RESPONSIBILITY TO HAVE SUCH ITEMS PACKED SEPARATELY AND THE CONTAINERS MARKED ACCORDINGLY IN ORDER THAT SUCH ITEMS COULD BE WEIGHED SEPARATELY AND THEIR WEIGHT ACCURATELY ESTABLISHED. IN THE ABSENCE OF ANY SHOWING TO THE CONTRARY, IT IS ASSUMED THAT THE WEIGHT OF SUCH ITEMS WAS ESTABLISHED BY WEIGHING THE CASES MARKED AS CONTAINING PROFESSIONAL ITEMS OR THAT YOUR ESTIMATED WEIGHT OF SUCH ITEMS ON YOUR APPLICATION FOR SHIPMENT WAS ACCEPTED AS REASONABLE.

AS STATED ABOVE, IN YOUR CLAIM OF JULY 24, 1967, YOU INDICATE THAT YOU SHIPPED A TOTAL OF 7,420 POUNDS OF PROFESSIONAL ITEMS, SUCH WEIGHT HAVING BEEN COMPUTED ON THE AVERAGE WEIGHT OF THE FOOTLOCKERS AND CARTONS MENTIONED. THESE AVERAGE WEIGHTS APPARENTLY ARE ESTIMATED SINCE YOU HAVE FURNISHED NOTHING TO SHOW THAT SUCH WEIGHTS WERE ESTABLISHED WITH ACCURACY AT THE TIME OF THE SHIPMENT.

THE RECORD HERE DOES NOT SHOW THE NUMBER OF FOOTLOCKERS AND CARTONS THAT WERE INCLUDED IN THE ALLOWANCE OF 2,500 POUNDS, BUT IT IS ASSUMED THAT ALL CONTAINERS PROPERLY MARKED AS CONTAINING PROFESSIONAL ITEMS WERE INCLUDED. IF YOU SHIPPED OTHER CONTAINERS THAT WERE NOT PROPERLY MARKED, THERE APPARENTLY WOULD BE NO BASIS TO INCREASE YOUR ALLOWANCE ON THAT ACCOUNT SINCE THE TRANSPORTATION OFFICER WOULD HAVE HAD NO OPPORTUNITY TO VERIFY THE WEIGHT AND CONTENTS OF THE CASES.

SINCE IT WAS ADMINISTRATIVELY DETERMINED ON THE BASIS OF THE SHIPPING DOCUMENTS CONTEMPORANEOUSLY ISSUED THAT THE HOUSEHOLD GOODS SHIPPED BY YOU INCIDENT TO YOUR RETIREMENT FROM THE ARMY EXCEEDED YOUR AUTHORIZED WEIGHT ALLOWANCE, YOU WERE PROPERLY CHARGED WITH EXCESS COSTS AND THERE IS NO BASIS ON THE PRESENT RECORD TO REFUND TO YOU THE AMOUNT COLLECTED FROM YOU ON THAT ACCOUNT.