B-275129 January 29, 1997

B-275129 January 29, 1997

Senator is advised that generally a uniformed service member's debt that arose from the cost the service paid for shipping the member's mobile home and household goods exceeding his authorized allowances is not considered a claim arising out of an "erroneous payment," and thus is not subject to waiver under 10 U.S.C. 2774; however, there are some exceptions to this rule, such as where the debt results from erroneous orders. Senator is also advised that if a member wishes to appeal the service's denial of waiver in his case, he may do so to the Department of Defense Office of Hearings and Appeals to which GAO's authority applicable to uniformed service members under the waiver and claims statutes has been transferred.

The Honorable John D. Rockefeller, IV United States Senator 405 Capitol Street, Suite 608 Charleston, West Virginia 25301

Dear Senator Rockefeller:

This is in further reply to your letter dated October 9, 1996 (reference F2570, WWH), with enclosures, requesting our views concerning a request by Lieutenant Junior Grade Jeffery D. Post, USN, for waiver of his debt for the excess costs of shipping his mobile home and household goods.

It appears that in late 1993, incident to a permanent change of station, the Navy authorized shipment of Lieutenant Post's mobile home from Sabillasville, Maryland, to Windsor, Virginia. The arrangements for the move were made through the transportation office at Fort Detrick, Maryland. Under the applicable statute and regulations, in lieu of having his household goods moved, Lieutenant Post was entitled to have his mobile home moved at government expense, but not to exceed what it would have cost the government to transport his maximum authorized household goods weight allowance from his old to his new duty station. [1]

In obtaining preliminary estimates of the cost of the move, the transportation office determined that the weight of the mobile home with contents exceeded the weight that could be moved safely. Therefore, Lieutenant Post was advised that some of his goods would have to be removed and shipped separately, and the cost of this separate shipment of household goods would have to be deducted from the maximum allowance available for the cost of moving the mobile home. [2] It appears that the transportation office computed the estimated cost of moving the mobile home and a separate shipment of an estimated 5,000 pounds of household goods, and advised Lieutenant Post that it appeared that the total would not exceed his entitlement but there was always the possibility of excess costs occurring in such a move, for which he would be responsible.

The shipment of the household goods and the movement of the mobile home were accomplished under government bills of lading in March 1994, for which the Navy paid the carriers. The Navy then determined that the total costs of the shipments exceeded Lieutenant Post's maximum entitlement [3] by $3,794.95, and billed Lieutenant Post for that amount. Lieutenant Post requested that the Navy waive this debt on the basis that from the estimates he was provided by the transportation office at Fort Detrick, he was led to believe he would not exceed his allowance, and if he had known that he would do so by more than $1,000, he would have made arrangements to move some of the goods himself.

In response to Lieutenant Post's request for waiver, the Defense Finance and Accounting Service (DFAS) advised him that the statute that authorizes waiver of claims against uniformed services member, 10 U.S.C. Sec. 2774, applies to claims arising out of "erroneous payments," and the Comptroller General has held that a claim against a member for the excess costs resulting from the member's household goods or mobile home shipment exceeding his authorized allowance is not a claim arising out of an erroneous payment. Therefore, such a claim may not be waived under 10 U.S.C. Sec. 2774. Lieutenant Post seeks your assistance in having that ruling reversed.

The ruling to which DFAS referred in its advice to Lieutenant Post is contained in our decision 67 Comp.Gen. 484 (1988), copy enclosed. In that decision we recognized that it is the long-standing and standard practice of government agencies to ship a qualifying individual's household goods or mobile home with the understanding that any costs which exceed the entitlement under the applicable regulations will be collected from the individual. Where such a shipment is made under a government bill of lading (GBL), such as in Lieutenant Post's case, the GBL consitutes a contract between the agency and the carrier under which the carrier is entitled to be paid for its services. The agency's payment to the carrier to satisfy this obligation is not an erroneous payment even if it includes payment for weight or services which exceed the individual's authorized allowances, and thus the individual's resulting debt to the government is not considered to have arisen out of an "erroneous payment." See also Major Robert E. Wheelock, Jr., USAF, B-237198, Dec. 20, 1989; and Sergeant Karen K. Gustin, USAF, B-229099, July 7, 1989, copies enclosed. We have recognized that there may be exceptional cases where the payment is considered erroneous within the meaning of the waiver statute, such as where the excess costs result from erroneous orders issued by the agency. 67 Comp.Gen. 484, supra.; and Gunnery Sergeant Robert S. Jackowski, USMC, B-229335, Oct. 21, 1988.

In Lieutenant Post's case, the documents you forwarded to us do not show that there was any error in his orders that resulted in the costs exceeding his allowances, nor is it clear why the costs exceeded the transportation office's estimates by over $3,000. However, the excess costs may be at least partly attributable to the fact that apparently his separate household goods shipment weighed over 7,000 pounds rather than the 5,000 pounds on which the estimate was based. Also, it appears that the carrier that moved the mobile home provided some services (such as furnishing two tires) the costs of which do not come within a member's allowances. [4]

While our office no longer has authority to consider claims or requests for waiver of debts such as are involved in Lieutenant Post's case, if he wishes to have the Navy's action reviewed, he may file an appeal with the following office to which these functions are now assigned:

Department of Defense Office of Hearings and Appeals Claims Division Post Office Box 3656 Arlington, Virginia 22203. [5]

We trust this serves the purpose of your inquiry.

Sincerely yours,

Robert P. Murphy General Counsel

Enclosures

1. 37 U.S.C. Sec. 409, implemented by Joint Federal Travel Regulations, Para. U5505.

2. This advice is in accordance with the provisions of JFTR, Para. 5330-5.

3. At the time of the shipments, Lieutenant Post was an ensign, with dependents, whose maximum entitlement was limited to what the cost to the government would have been to ship 12,000 pounds of household goods from the old to the new duty station. JFTR, Para. U5310-B.

4. JFTR, Para. U5510 prescribes the allowable and nonallowable costs in connection with mobile home movements. The payments to the carriers and the computations of the debt in Lieutenant Post's case were made by the Navy Material Transportation Office, Norfolk, Virginia.

5. Pursuant to Pub. L. No. 104-53, Sec. 211, 109 Stat. 535 (1995), our authority under 31 U.S.C. Sec. 3720, to settle claims of or against the United States was transferred to the Director of the Office of Management and Budget (OMB). Pursuant to Pub. L. No. 104-316, Secs. 103, 105, and 116, 110 Stat. 3826 (1996), our authority under 10 U.S.C. Sec. 2774, 32 U.S.C. Sec. 716, and 5 U.S.C. Sec. 5584, to consider requests for waiver of debts also was transferred to the Director of OMB. The Director delegated these functions as they relate to members of the uniformed services to the Department of Defense which assigned them to its Office of Hearings and Appeals.