B-156988, APR. 10, 1967

B-156988: Apr 10, 1967

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AF 6979452: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 26. IN THAT SETTLEMENT YOU WERE ALLOWED THE SUM OF $63.21 ON YOUR CLAIM FOR REFUND OF THE AMOUNT OF $190.58 PAID BY YOU AS EXCESS COSTS RESULTING FROM THE SHIPMENT OF YOUR HOUSEHOLD GOODS FROM WIESBADEN. MADE A REDETERMINATION IN VIEW OF YOUR GRADE OF MASTER SERGEANT THAT YOU WERE ENTITLED TO AN ADDITIONAL WEIGHT ALLOWANCE OF 500 POUNDS PLUS PACKING. WE EXPLAINED TO YOU THE EFFECT OF THE GOVERNING LAWS AND REGULATIONS AND WHY YOU WERE ENTITLED ONLY TO THE DIFFERENCE OF $63.21. WE SAID THAT THERE IS NO LEGAL BASIS FOR US TO RECOGNIZE AND ACCEPT A LETTER DATED JANUARY 19. YOU AGAIN CONTEND THAT YOUR AUTHORIZED HOUSEHOLD GOODS WEIGHT ALLOWANCE SHOULD NOT HAVE BEEN CHARGED WITH 760 POUNDS.

B-156988, APR. 10, 1967

TO MASTER SERGEANT BERNARD YELLIN, AF 6979452:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 26, 1967, AND ENCLOSURES, IN EFFECT REQUESTING RECONSIDERATION OF OUR DECISION OF AUGUST 2, 1965, B- 156988, TO YOU, WHICH SUSTAINED OFFICE SETTLEMENT DATED FEBRUARY 1, 1965. IN THAT SETTLEMENT YOU WERE ALLOWED THE SUM OF $63.21 ON YOUR CLAIM FOR REFUND OF THE AMOUNT OF $190.58 PAID BY YOU AS EXCESS COSTS RESULTING FROM THE SHIPMENT OF YOUR HOUSEHOLD GOODS FROM WIESBADEN, GERMANY, AND ALBUQUERQUE, NEW MEXICO, TO SHAW AIR FORCE BASE, SOUTH CAROLINA.

IN THE DECISION OF AUGUST 2, 1965, WE ADVISED YOU, AMONG OTHER THINGS, THAT THE TRANSPORTATION DIVISION, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, AFTER HAVING DETERMINED THAT THE NET WEIGHT OF THE TWO SEPARATE SHIPMENTS OF YOUR HOUSEHOLD GOODS TO SHAW AIR FORCE BASE, SOUTH CAROLINA, EXCEEDED YOUR AUTHORIZED WEIGHT ALLOWANCE BY 1,643 POUNDS, MADE A REDETERMINATION IN VIEW OF YOUR GRADE OF MASTER SERGEANT THAT YOU WERE ENTITLED TO AN ADDITIONAL WEIGHT ALLOWANCE OF 500 POUNDS PLUS PACKING, THUS REDUCING THE ORIGINAL LIABILITY ON ACCOUNT OF THE EXCESS WEIGHT TO $127.37 RATHER THAN $190.58 WHICH HAD BEEN COLLECTED FROM YOU. ALSO, WE EXPLAINED TO YOU THE EFFECT OF THE GOVERNING LAWS AND REGULATIONS AND WHY YOU WERE ENTITLED ONLY TO THE DIFFERENCE OF $63.21, THE AMOUNT ALLOWED TO YOU BY OFFICE SETTLEMENT DATED FEBRUARY 1, 1965.

IN ANSWER TO THE CONTENTIONS MADE IN YOUR LETTER OF MAY 20, 1965, WE FURTHER ADVISED YOU IN THE ABOVE DECISION THAT THE PERTINENT AIR FORCE REGULATIONS REQUIRED THAT YOUR AUTHORIZED HOUSEHOLD GOODS WEIGHT ALLOWANCE BE CHARGED WITH THE 1,625 POUNDS OF UNACCOMPANIED HOLD BAGGAGE SHIPPED FROM WIESBADEN, GERMANY. ALSO, WITH RESPECT TO THE WEIGHT OF THE GOODS SHIPPED FROM ALBUQUERQUE, WE SAID THAT THERE IS NO LEGAL BASIS FOR US TO RECOGNIZE AND ACCEPT A LETTER DATED JANUARY 19, 1960, FROM KIRTLAND AIR FORCE BASE, NEW MEXICO, REFLECTING 3,400 POUNDS AS NET WEIGHT OF THE HOUSEHOLD GOODS PLACED IN NONTEMPORARY STORAGE IN ALBUQUERQUE, NEW MEXICO, ON JANUARY 12, 1960, IN THE ABSENCE OF SUBSTANTIATING EVIDENCE ESTABLISHING THAT SUCH LOT OF GOODS WHEN REMOVED FROM STORAGE AND PACKED FOR TRANSCONTINENTAL MOTOR SHIPMENT ON OR ABOUT JULY 15, 1963, DID NOT WEIGH 4,160 POUNDS (GROSS WEIGHT), AS SHOWN BY A WEIGHMASTER'S CERTIFICATE.

YOU AGAIN CONTEND THAT YOUR AUTHORIZED HOUSEHOLD GOODS WEIGHT ALLOWANCE SHOULD NOT HAVE BEEN CHARGED WITH 760 POUNDS, REPRESENTING THE DIFFERENCE BETWEEN THE WEIGHT OF THE HOUSEHOLD GOODS PLACED IN STORAGE IN ALBUQUERQUE (3,400 POUNDS, GROSS WEIGHT) AND THE WEIGHT OF THE GOODS SHIPPED FROM THERE TO SHAW AIR FORCE BASE (4,160 POUNDS, GROSS WEIGHT). YOU HAVE SUBMITTED IN SUPPORT OF YOUR CONTENTION COPIES OF THE INVENTORIES WHICH LIST THE SAME ITEMS OF HOUSEHOLD GOODS, CARTONS, ETC., AS HAVING BEEN PLACED IN NONTEMPORARY STORAGE IN ALBUQUERQUE ON JANUARY 12, 1960, AND REMOVED THEREFROM ON OR ABOUT JULY 15, 1963, AND COPIES OF (1) WEIGHMASTER'S CERTIFICATE DATED JANUARY 12, 1960, SHOWING A GROSS WEIGHT OF THE INVOLVED HOUSEHOLD GOODS AS 3,400 POUNDS AND (2) WEIGHMASTER'S CERTIFICATE DATED JULY 16, 1963, SHOWING A GROSS WEIGHT OF SUCH GOODS AS 4,160 POUNDS. ACCORDINGLY, ON THE BASIS OF SUCH DOCUMENTS YOU CLAIM REFUND OF AN ADDITIONAL AMOUNT OF $88.16 (760 POUNDS AT $11.60 A HUNDREDWEIGHT). ALSO, YOU EXPRESS THE VIEW THAT THE PRACTICES OF THE INVOLVED CARRIER, ALLIED VAN LINES, SHOULD BE INVESTIGATED SINCE THEY ARE RESPONSIBLE FOR THE ,OVERWEIGHT" OF 760 POUNDS.

WHILE THE WEIGHMASTER'S CERTIFICATE DATED JANUARY 12, 1960, OBTAINED ON A PUBLIC SCALE LOCATED AT THE LO LA MI LODGE, ALBUQUERQUE, SHOWS THAT THE WEIGHT OF YOUR HOUSEHOLD GOODS WAS 3,400 POUNDS AT THE TIME SUCH GOODS WERE PLACED IN STORAGE, THAT WEIGHMASTER'S CERTIFICATE, IN THE ABSENCE OF SUBSTANTIATING EVIDENCE, CANNOT BE CONSIDERED AS ESTABLISHING THAT THE GOODS WHEN REMOVED FROM STORAGE OVER 3 1/2 YEARS LATER AND LOADED ON THE VAN FOR SHIPMENT, INCLUDING ANY ADDITIONAL PACKING MATERIALS DEEMED NECESSARY, DID NOT WEIGH 4,160 POUNDS, PACKED, AS SHOWN BY THE WEIGHMASTER'S CERTIFICATE DATED JULY 16, 1963, OBTAINED ON THE PUBLIC SCALE AT THE SAME LOCATION. THE DISCREPANCY BETWEEN THOSE TWO FIGURES MAY BE DUE TO ONE OR MORE OF A NUMBER OF FACTORS SUCH AS INACCURACY OF THE SCALES AT THE TIME THE GOODS WERE PLACED IN STORAGE, USE OF SPECIAL PRESERVATIVE PAPER BY THE STORAGE FIRM AND RETENTION THEREOF UPON SHIPMENT OF THE GOODS, MOISTURE ABSORPTION WHILE IN STORAGE, USE OF HEAVIER CONTAINERS AND PACKING CASES FOR TRANSCONTINENTAL MOTOR SHIPMENT, ETC.

THE DEPARTMENT OF THE ARMY DETERMINED THAT THE WEIGHT OF YOUR HOUSEHOLD GOODS WHEN REMOVED FROM STORAGE AND PREPARED FOR SHIPMENT, AS ESTABLISHED BY THE WEIGHMASTER'S CERTIFICATE DATED JULY 16, 1963, WAS 4,160 POUNDS (3,952 POUNDS NET WEIGHT PLUS 208 POUNDS OR 5.263 PERCENT FOR PACKING). THE GOVERNMENT WAS OBLIGATED TO PAY THE CARRIER THE FULL COSTS FOR THE SHIPMENT OF SUCH GOODS ON THE BASIS OF THAT WEIGHMASTER'S CERTIFICATE. HENCE, SINCE THE GOVERNMENT HAS NO CLEAR AND CONVINCING EVIDENCE TO REFUTE OR CONTRAVENE THE WEIGHMASTER'S CERTIFICATE DATED JULY 16, 1963, WE FIND NO LEGAL JUSTIFICATION FOR AN INVESTIGATION OF THE CARRIER'S PRACTICES OR FOR ANY COLLECTION ACTION AGAINST SUCH CARRIER FOR THE AMOUNT INVOLVED.

IN VIEW OF THE FOREGOING, WE HAVE NO ALTERNATIVE BUT TO ADHERE TO OUR DECISION OF AUGUST 2, 1965, WHICH IS AFFIRMED.

OUR DECISION OF AUGUST 2, 1965, WHICH ACCOMPANIED YOUR LETTER OF FEBRUARY 26, 1967, IS RETURNED.

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