B-165370, JAN. 9, 1969

B-165370: Jan 9, 1969

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USAF: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 11. THE SHIPMENT OF YOUR HOUSEHOLD EFFECTS WAS MADE UNDER GOVERNMENT BILL OF LADING DATED DECEMBER 16. A PARTIALLY ILLEGIBLE COPY OF THE BILL OF LADING TRANSMITTED WITH THE CLAIM SHOWED THAT THE GROSS WEIGHT OF THE SHIPMENT WAS 40. THE INVENTORY LIST TRANSMITTED WITH THE CLAIM WAS ALSO NEARLY ILLEGIBLE. THE FOOTINGS INDICATED THAT 252 ITEMS WERE SHIPPED. A RECAPITULATION PAGE SHOWED THAT 191 PIECES WERE SHIPPED. SHOWED THAT A REWEIGH OF YOUR HOUSEHOLD EFFECTS WAS MADE JANUARY 24. THAT THE NET WEIGHT OF THE EFFECTS WAS 11. THE CERTIFICATE SHOWS AN "X" IN THE BOX WHICH SIGNIFIED THAT THE REWEIGH WAS NOT WITNESSED BY THE TRANSPORTATION OFFICER OR HIS AUTHORIZED REPRESENTATIVE.

B-165370, JAN. 9, 1969

TO MAJOR ROBERT S. WEBER, USAF:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 11, 1968, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED JULY 17, 1968, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF EXCESS COST IN THE AMOUNT OF $318.23, COLLECTED FROM YOU INCIDENT TO THE SHIPMENT OF YOUR HOUSEHOLD EFFECTS FROM MOSES LAKE, WASHINGTON, TO BILOXI, MISSISSIPPI, UNDER ORDERS DATED DECEMBER 9, 1965.

THE SHIPMENT OF YOUR HOUSEHOLD EFFECTS WAS MADE UNDER GOVERNMENT BILL OF LADING DATED DECEMBER 16, 1965. A PARTIALLY ILLEGIBLE COPY OF THE BILL OF LADING TRANSMITTED WITH THE CLAIM SHOWED THAT THE GROSS WEIGHT OF THE SHIPMENT WAS 40,780, TARE 29,170, WITH A NET WEIGHT OF 11,610 POUNDS, INCLUDING 630 POUNDS OF PROFESSIONAL BOOKS. THE INVENTORY LIST TRANSMITTED WITH THE CLAIM WAS ALSO NEARLY ILLEGIBLE. HOWEVER, THE FOOTINGS INDICATED THAT 252 ITEMS WERE SHIPPED. A RECAPITULATION PAGE SHOWED THAT 191 PIECES WERE SHIPPED, TOTALING 1,718 CUBIC FEET.

A REWEIGHT CERTIFICATE DATED JANUARY 31, 1966, SHOWED THAT A REWEIGH OF YOUR HOUSEHOLD EFFECTS WAS MADE JANUARY 24, 1966, AND THAT THE NET WEIGHT OF THE EFFECTS WAS 11,600 POUNDS. THE CERTIFICATE SHOWS AN "X" IN THE BOX WHICH SIGNIFIED THAT THE REWEIGH WAS NOT WITNESSED BY THE TRANSPORTATION OFFICER OR HIS AUTHORIZED REPRESENTATIVE.

IN A LETTER DATED DECEMBER 17, 1966, YOU STATED YOU WERE ADVISED UPON YOUR ARRIVAL AT KEESLER AIR FORCE BASE, MISSISSIPPI, THAT YOUR GOODS WERE OVERWEIGHT AND THAT THEY HAD ALREADY BEEN REWEIGHED. ALSO, YOU SAID THAT ALTHOUGH YOU PROTESTED THE UNSUPERVISED REWEIGH THE GOODS WERE DELIVERED WITHOUT AN ADDITIONAL OVERALL WEIGHT CHECK. BY LETTER DATED DECEMBER 21, 1966, HEADQUARTERS, UNITED STATES AIR FORCE IN EUROPE, ADVISED THAT THE FILE HAD BEEN REVIEWED AND THE EXCESS COSTS WERE CONSIDERED VALID. A PAY ADJUSTMENT AUTHORIZATION WAS REISSUED FEBRUARY 10, 1967, SHOWING THE COMPUTATION OF THE EXCESS COST TO BE $318.23, BASED ON THE NET WEIGHT OF YOUR EFFECTS AS 11,600 POUNDS, LESS 663 POUNDS OF PROFESSIONAL ITEMS, AND LESS 547 POUNDS' ALLOWANCE FOR PACKING.

IN LETTERS DATED SEPTEMBER 6, 1967, AND MARCH 28, 1968, YOU APPEALED THE ADMINISTRATIVE DETERMINATION, CONTENDING THAT A PAST SHIPMENT TOTALED 8,500 POUNDS AND A SUBSEQUENT SHIPMENT MADE SIX MONTHS AFTER THE ONE UNDER CONSIDERATION, TOTALED ONLY 9,530 POUNDS. YOU CONTEND THAT THE LATER SHIPMENT SHOULD HAVE WEIGHED MORE THAN THE ONE NOW IN QUESTION SINCE THAT WAS AN OVERSEAS SHIPMENT AND MOST OF YOUR EFFECTS WERE SHIPPED BY THE GOVERNMENT, WHEREAS IN TRANSFERS WITHIN THE UNITED STATES, YOU CARRIED SOME EFFECTS IN A CAMPING TRAILER WHEN TRAVELING BETWEEN BASES. YOU STATED FURTHER THAT THE REWEIGHT OF YOUR EFFECTS PRIOR TO DELIVERY TO YOUR QUARTERS WAS NOT SUPERVISED BY AN AIR FORCE TRANSPORTATION OFFICER.

YOU ALSO CLAIMED AN ERROR WAS MADE IN THE WEIGHT OF YOUR PROFESSIONAL BOOKS AND EQUIPMENT, CITING A REWEIGH CERTIFICATE DATED FEBRUARY 11, 1966, WHICH SHOWED THE WEIGHT OF SUCH BOOKS AND EQUIPMENT TO BE 918 POUNDS, AS CONTRASTED TO THE 630 POUNDS SHOWN BY THE CARRIER. IN SUPPORT OF YOUR CLAIM, YOU ATTACHED THE COPY OF THE BILL OF LADING AND TWO INVENTORY LISTS COVERING TWO SHIPMENTS, ONE PERTAINING TO THE SHIPMENT UNDER CONSIDERATION AND THE OTHER INVOLVING THE FIRST SHIPMENT THEREAFTER. OTHER DOCUMENTS INCLUDED THE REWEIGH CERTIFICATE DATED JANUARY 31, 1966, AND THE ADDITIONAL REWEIGH CERTIFICATE DATED FEBRUARY 11, 1966, WHICH SHOWS THAT SEVERAL ITEMS, DESCRIBED AS CONTAINING PROFESSIONAL EQUIPMENT, WERE WEIGHED BY SMALL SCALE AND TOTALED 918 POUNDS. WHETHER OTHER GOODS NOT IN THE PROFESSIONAL EQUIPMENT CATEGORY ALSO WERE INCLUDED WITHIN SUCH ITEMS IS NOT SHOWN.

BY SETTLEMENT DATED JULY 17, 1968, YOUR CLAIM WAS DISALLOWED FOR THE REASONS STATED. IN YOUR LETTER OF SEPTEMBER 11, 1968, YOU CONTENDED THAT YOU WERE DENIED AN OPPORTUNITY TO PROTECT YOUR RIGHTS WITH RESPECT TO THE SUPPOSED OVERWEIGHT, THAT THE VALIDITY OF THE REWEIGH TICKET INVOLVING THE OVERALL SHIPMENT WAS QUESTIONABLE, AND THAT A VALID REWEIGH TICKET OF YOUR PROFESSIONAL BOOKS (THE REWEIGH CERTIFICATE DATED FEBRUARY 11, 1966), WAS IGNORED OR OVERLOOKED.

BECAUSE OF THE ILLEGIBILITY OF THE BILL OF LADING AND SOME OF THE SUBSIDIARY PAPERS SUBMITTED WITH THE CLAIM, A COPY OF THE VOUCHER COVERING THE PAYMENT TO THE CARRIER FOR THE SHIPMENT OF YOUR EFFECTS WAS OBTAINED. THE COPY OF THE INVENTORY ATTACHED THERETO WAS ALSO NEARLY ILLEGIBLE. HOWEVER, IT SHOWED THAT 252 ITEMS WERE INCLUDED IN THE SHIPMENT. THE BILL OF LADING WAS CLEAR. IT SHOWED THAT THE GOODS WERE DELIVERED TO A STORAGE SITE IN GULFPORT, MISSISSIPPI, ON JANUARY 24, 1966. IT LISTS THE GROSS WEIGHT AS 37,260, TARE 25,660, AND A NET WEIGHT OF 11,600 POUNDS. SHOWS FURTHER THAT THE SHIPMENT INCLUDED 630 POUNDS OF PROFESSIONAL BOOKS, PAPERS AND EQUIPMENT.

ATTACHED TO THE VOUCHER ARE CLEAR COPIES OF WEIGHT CERTIFICATES, SHOWING WEIGHTS ATTESTED TO AT ORIGIN AND DESTINATION. AT ORIGIN, TWO SETS OF WEIGHT CERTIFICATES, ATTESTED TO BY TWO SEPARATE WEIGH-MASTERS AT MOSES LAKE, WASHINGTON, SHOWED IDENTICAL GROSS WEIGHTS OF 40,780 POUNDS, AND NET WEIGHTS OF 11,610 POUNDS. YOUR PROFESSIONAL BOOKS AND EQUIPMENT WERE WEIGHED SEPARATELY AND WERE SHOWN TO WEIGH 630 POUNDS NET. THE GROSS WEIGHT INCLUDED 3,150 POUNDS OF EFFECTS PICKED UP AT LARSON AIR FORCE BASE, WASHINGTON, FOR SHIPMENT TO THE SAME DESTINATION AS YOUR EFFECTS. AT DESTINATION, WHERE PRESUMABLY THE OTHER SHIPMENT WAS REMOVED, A WEIGHT CERTIFICATE DATED JANUARY 24, 1966, ATTESTED TO BY A WEIGHMASTER AT GULFPORT, MISSISSIPPI, SHOWED GROSS WEIGHT OF 37,260 POUNDS AND A NET WEIGHT OF YOUR EFFECTS OF 11,600 POUNDS.

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. PARAGRAPH M8002 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THAT AUTHORITY, PROVIDES THAT HOUSEHOLD EFFECTS OF MEMBERS, NOT IN EXCESS OF THE WEIGHT LIMIT IN POUNDS PRESCRIBED FOR VARIOUS RANKS AND GRADES IN PARAGRAPH M8003, MAY BE TRANSPORTED AT GOVERNMENT EXPENSE IN ACCORDANCE WITH THE PROVISIONS OF THOSE REGULATIONS. IT PROVIDES FURTHER THAT WHEN THE ACTUAL NET WEIGHT OF UNPACKED AND UNCRATED GOODS IS NOT KNOWN AND SHIPMENT IS MADE IN UNCRATED CONDITION BY COMMERCIAL VAN, THE NET WEIGHT CHARGEABLE AGAINST THE MEMBER'S PRESCRIBED WEIGHT ALLOWANCE WILL BE DETERMINED BY SUBTRACTING 5 PERCENT FROM THE GROSS WEIGHT OF SUCH SHIPMENT. IF THE ACTUAL WEIGHT OF A SHIPMENT IS UNOBTAINABLE, THE WEIGHT OF THE SHIPMENT WILL BE DETERMINED BY CUBIC MEASUREMENT ON THE BASIS OF 7 POUNDS PER CUBIC FOOT.

PARAGRAPH 5305, AIR FORCE MANUAL 75-4, IMPLEMENTING REGULATIONS CITED ABOVE, PROVIDES THAT TRANSPORTATION OFFICERS SHOULD MAKE EVERY EFFORT TO INSURE AGAINST WEIGHT IRREGULARITIES. TRANSPORTATION OFFICERS AT ORIGIN SHOULD REQUEST THE DESTINATION OFFICER TO REWEIGH THE HOUSEHOLD GOODS BEFORE DELIVERY TO DESTINATION OR STORAGE AT DESTINATION WHEN THE COPY OF THE GOVERNMENT BILL OF LADING SHOWS THAT THE NET WEIGHT EXCEEDS THE MEMBER'S WEIGHT ALLOWANCE. IT PROVIDES FURTHER THAT REGARDLESS OF THE LOCATION OF THE SCALE UPON WHICH THE CARRIER PERFORMS THE REWEIGH, THE TRANSPORTATION OFFICER WILL ASSURE THAT THE REWEIGH IS WITNESSED BY A MILITARY OR CIVILIAN REPRESENTATIVE OF THE TRANSPORTATION OFFICER. WITH RESPECT TO PROFESSIONAL BOOKS AND EQUIPMENT, PARAGRAPH 5103 OF THE MANUAL PROVIDES THAT THE MEMBER IS REQUIRED TO ITEMIZE THEM IN PREPARING HIS APPLICATION, WHICH LISTING IS TO BE VERIFIED BY THE TRANSPORTATION OFFICER.

THE GOVERNMENT IS OBLIGATED TO PAY THE CARRIERS FOR THE TOTAL WEIGHT AT THE TIME OF THE SHIPMENTS, AND WEIGHTS THEN IN EXCESS OF THE MAXIMUM OVER- ALL WEIGHTS FIXED BY REGULATIONS PROPERLY ARE CHARGEABLE TO THE MEMBER. THE QUESTION OF WHETHER AND TO WHAT EXTENT THE AUTHORIZED WEIGHTS HAVE BEEN EXCEEDED IN THE SHIPMENT OF HOUSEHOLD EFFECTS, AND THE EXCESS COSTS 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.

THE WEIGHTS OF PRIOR OR SUBSEQUENT SHIPMENTS ARE NOT ACCEPTABLE TO SHOW ANY ERROR IN THE IMMEDIATE SHIPMENT UNLESS THE INVENTORIES REVEAL THAT IDENTICAL HOUSEHOLD ITEMS WERE SHIPPED AND THAT PACKING AND CRATING MATERIALS USED WERE SIMILAR. IN THIS RESPECT, THERE IS FOR CONSIDERATION THAT THE SHIPMENT UNDER CONSIDERATION WAS WEIGHED AT LEAST THREE TIMES IN TRANSIT, TWICE AT ORIGIN BY DIFFERENT WEIGHMASTERS AND ONCE AT THE REQUEST OF THE DESTINATION TRANSPORTATION OFFICER AT THE TIME THE GOODS WERE PLACED IN STORAGE, AND THAT ALL GROSS WEIGHTS SHOWN WERE SUBSTANTIALLY IN AGREEMENT.

THE FACT THAT THE REWEIGH FORM DATED JANUARY 31, 1966, SHOWED AN "X" IN THE BOX SIGNIFYING THAT THE REWEIGH WAS NOT WITNESSED BY THE TRANSPORTATION OFFICER AT THE TIME THE GOODS WERE PLACED IN STORAGE, WAS NOT SATISFACTORILY EXPLAINED. HOWEVER, THAT FACT ALONE DOES NOT AFFORD ANY BASIS FOR CONCLUDING THAT THE WEIGHT AS SHOWN ON THE BILL OF LADING SUPPORTING THE VOUCHER MAKING PAYMENT TO THE CARRIER, WAS ERRONEOUS. FURTHERMORE, THE REWEIGH WAS PART OF THE RECORD WHICH WAS PRESUMABLY CONSIDERED ALONG WITH OTHER FACTORS IN THE ADMINISTRATIVE REVIEW WHICH RESULTED IN A FINDING DATED DECEMBER 21, 1966, THAT THE EXCESS COSTS WERE CONSIDERED VALID. IT WILL BE NOTED IN THIS RESPECT THAT THE LISTING OF THE ITEMS SHOWING A TOTAL CUBIC FOOTAGE OF 1,718 WOULD REPRESENT, AT 7 POUNDS PER CUBIC FOOT, A TOTAL OF 12,026 POUNDS SHIPPED, WHICH APPROXIMATES THAT SHOWN ON THE WEIGHT CERTIFICATES.

WITH RESPECT TO YOUR CONTENTION THAT THE PROFESSIONAL BOOKS AND EQUIPMENT WERE NOT PROPERLY WEIGHED BY THE CARRIER, THE REWEIGH CERTIFICATE DATED FEBRUARY 11, 1966, DESIGNATING SEVERAL ITEMS AS PROFESSIONAL BOOKS AND EQUIPMENT, MAY NOT BE ACCEPTED AS PROOF THAT THE CARRIER'S WEIGHT CERTIFICATIONS WERE IN ERROR, IN THE ABSENCE OF A CLEAR SHOWING THAT THEY WERE THE SAME ITEMS WHICH WERE SET ASIDE FOR THE CARRIER TO WEIGH ON THE BASIS OF AN ITEMIZATION BY YOU IN PREPARING YOUR APPLICATION FOR SHIPMENT.

ACCORDINGLY, ON THE BASIS OF THE EXISTING RECORD, THE SETTLEMENT OF JULY 17, 1968, IS SUSTAINED.