B-201115, FEB 27, 1981

B-201115: Feb 27, 1981

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REGULATIONS REQUIRING SUCH CERTIFICATES ARE CONTROLLING AND MUST BE STRICTLY FOLLOWED. THE FACT THAT THE MEMBER WAS NOT FULLY COUNSELLED WITH RESPECT TO THE DO-IT-YOURSELF PROGRAM CANNOT BE USED TO PERMIT PAYMENT. USA: THE ISSUE IN THE PRESENT CASE IS WHETHER A MEMBER OF THE UNITED STATES ARMY IS ENTITLED TO BE PAID THE INCENTIVE PAYMENT UNDER THE ARMY'S DO-IT- YOURSELF MOVING PROGRAM EVEN THOUGH HE DID NOT SUBMIT THE WEIGHT TICKETS REQUIRED BY REGULATIONS SHOWING THE WEIGHT OF HIS HOUSEHOLD GOODS. THE QUESTION WAS PRESENTED FOR AN ADVANCE DECISION BY LIEUTENANT COLONEL G. HE WAS INFORMED BY THE HOUSING OFFICE. THAT AS A RESULT OF A DUPLEX RENOVATION PROJECT HE WAS TO VACATE HIS QUARTERS NO LATER THAN DECEMBER 1.

B-201115, FEB 27, 1981

DIGEST: ARMY MEMBER MOVED HIS OWN HOUSEHOLD GOODS BUT DID NOT FOLLOW THE PROCEDURES SET OUT IN THE REGULATIONS OF THE ARMY CONCERNING THE DO-IT YOURSELF MOVE PROGRAM. SPECIFICALLY, HE DID NOT OBTAIN VALID WEIGHT CERTIFICATES FROM CERTIFIED WEIGHT SCALES. REGULATIONS REQUIRING SUCH CERTIFICATES ARE CONTROLLING AND MUST BE STRICTLY FOLLOWED. THEREFORE, PAYMENT MAY NOT BE MADE WITHOUT THE WEIGHT CERTIFICATES. THE FACT THAT THE MEMBER WAS NOT FULLY COUNSELLED WITH RESPECT TO THE DO-IT-YOURSELF PROGRAM CANNOT BE USED TO PERMIT PAYMENT.

CAPTAIN THOMAS J. MUSKUS, USA:

THE ISSUE IN THE PRESENT CASE IS WHETHER A MEMBER OF THE UNITED STATES ARMY IS ENTITLED TO BE PAID THE INCENTIVE PAYMENT UNDER THE ARMY'S DO-IT- YOURSELF MOVING PROGRAM EVEN THOUGH HE DID NOT SUBMIT THE WEIGHT TICKETS REQUIRED BY REGULATIONS SHOWING THE WEIGHT OF HIS HOUSEHOLD GOODS. FOR THE FOLLOWING REASONS THE MEMBER MAY NOT BE PAID THE INCENTIVE PAYMENT UNDER THAT PROGRAM.

THE QUESTION WAS PRESENTED FOR AN ADVANCE DECISION BY LIEUTENANT COLONEL G. L. COMFORT, FINANCE AND ACCOUNTING OFFICER, 9TH INFANTRY DIVISION AND FORT LEWIS, FORT LEWIS, WASHINGTON, CONCERNING THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN FAVOR OF CAPTAIN THOMAS J. MUSKUS, USA, INCIDENT TO HIS MOVING FROM ONE SET OF GOVERNMENT QUARTERS TO ANOTHER SET, BOTH AT FORT LEWIS. THE MATTER HAS BEEN ASSIGNED CONTROL NO. 80-26 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

CAPTAIN MUSKUS PROVIDES THE FOLLOWING INFORMATION. ON NOVEMBER 2, 1979, HE WAS INFORMED BY THE HOUSING OFFICE, FORT LEWIS, WASHINGTON, THAT AS A RESULT OF A DUPLEX RENOVATION PROJECT HE WAS TO VACATE HIS QUARTERS NO LATER THAN DECEMBER 1, 1979. CAPTAIN MUSKUS INFORMED THE HOUSING OFFICE THAT HE DESIRED TO MOVE HIS HOUSEHOLD GOODS UNDER THE DO IT-YOURSELF MOVE PROGRAM AND WAS INSTRUCTED TO DISCUSS THE MATTER WITH THE TRANSPORTATION OFFICE PRIOR TO HIS MOVE. SUBSEQUENTLY, HE LOCATED SUITABLE QUARTERS AND ARRANGED FOR THE ASSIGNING OF THE QUARTERS TO HIM ON NOVEMBER 9. NOVEMBER 8, HE ATTENDED A PRE-MOVING BRIEFING GIVEN BY THE TRANSPORTATION OFFICE. AT THAT BRIEFING HE STATED HIS PREFERENCE FOR A DO-IT-YOURSELF MOVE AND WAS TOLD THAT A COUNSELING MEETING COULD NOT BE SCHEDULED UNTIL THE LATTER PART OF NOVEMBER. HE THEN LEFT THE TRANSPORTATION OFFICE STATING HE WOULD "FIGHT THE BATTLE" AFTER HE MADE THE MOVE. DURING THE WEEK OF NOVEMBER 9-18, CAPTAIN MUSKUS CONDUCTED HIS MOVE WITH THE ASSISTANCE OF TWO FRIENDS AND USING HIS OWN AUTOMOBILE AND TRAILER.

CAPTAIN MUSKUS STATES THAT THE REASONS HE COULD NOT DELAY HIS MOVE UNTIL THE END OF NOVEMBER, WHEN HE COULD GO THROUGH COUNSELING ON THE MOVE INVOLVED, WERE:

(1) HIS OLD QUARTERS HAD TO BE VACATED NO LATER THAN DECEMBER 1, 1979;

(2) HE WAS SCHEDULED TO ATTEND SCHOOL THE END OF NOVEMBER; AND

(3) HIS DESIRE TO BE SETTLED PRIOR TO THANKSGIVING AND CHRISTMAS.

CAPTAIN MUSKUS INDICATES THAT ON DECEMBER 14 HE MET WITH TWO COUNSELORS AND THE CHIEF OF THE TRANSPORTATION SECTION AND WAS INFORMED THAT IN LIGHT OF A MESSAGE RECEIVED THAT DAY AND THE FACT THAT HE DID NOT SUBMIT VALID WEIGHT CERTIFICATES, HE COULD NOT BE REIMBURSED UNDER THE DO-IT-YOURSELF PROGRAM. THE MESSAGE STATED, IN ESSENCE, THAT AS A RESULT OF THE COMPTROLLER GENERAL'S DECISION B-191016, APRIL 20, 1979, WEIGHT CERTIFICATES FROM CERTIFIED SCALES SHOWING BOTH THE EMPTY AND LOADED WEIGHT OF THE VEHICLE USED MUST BE FURNISHED TO SHOW THE WEIGHT OF THE HOUSEHOLD GOODS AS A CONDITION TO QUALIFYING FOR REIMBURSEMENT UNDER THE PROGRAM. IT WAS ALSO BROUGHT OUT AT THE MEETING, HOWEVER, THAT THE MEMBER WAS NEVER FURNISHED A MOVING GUIDE OR THE FORMS NORMALLY GIVEN TO PERSONNEL DESIROUS OF A DO-IT-YOURSELF MOVE.

CAPTAIN MUSKUS CONTENDS THAT HE SHOULD BE REIMBURSED UNDER THE DO-IT YOURSELF PROGRAM BECAUSE THE MESSAGE REQUIRING THE SUBMISSION OF WEIGHT CERTIFICATES WAS NOT RECEIVED UNTIL AFTER HIS MOVE AND HE NEVER RECEIVED THE PROPER COUNSELING REQUIRED BY THE REGULATIONS. HE REQUESTS PAYMENT BASED ON HIS HAVING MOVED 11,000 POUNDS OF HOUSEHOLD GOODS. HE ARRIVES AT THAT FIGURE BASED ON THE WEIGHT OF A PREVIOUS MOVE ALONG WITH HIS ESTIMATE OF THE WEIGHT OF ITEMS SUBSEQUENTLY ADDED OR DISCARDED.

THE DO-IT-YOURSELF HOUSEHOLD GOODS SHIPMENT PROGRAM FOR MEMBERS OF THE ARMED FORCES WAS AUTHORIZED PURSUANT TO 37 U.S.C. 406 (1976) AND SECTION 747 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1976, PUBLIC LAW 94-212, 90 STAT. 153, 176, 37 U.S.C. 406 NOTE (1976). THIS PROVISION AUTHORIZES THE PAYMENT OF A MONETARY ALLOWANCE TO MEMBERS OF THE ARMED FORCES WHO MOVE THEIR HOUSEHOLD GOODS BY PRIVATELY OWNED OR RENTAL VEHICLES UNDER PROGRAMS ESTABLISHED BY THE SECRETARIES CONCERNED.

THESE PROGRAMS APPLY TO MOVES MADE INCIDENT TO PERMANENT CHANGES IN STATION. 37 U.S.C. 406(B) (1976). AND, WE HAVE HELD THAT THE PROGRAM MAY ALSO BE APPLIED TO MOVES WHERE THERE IS NO CHANGE OF STATION BUT THERE ARE UNUSUAL OR EMERGENCY CIRCUMSTANCES AS PROVIDED UNDER 37 U.S.C. 406(E) (1976). SEE B-198440, DECEMBER 31, 1980 (60 COMP.GEN. ).

AT THE OUTSET, IT APPEARS QUESTIONABLE IN THIS CASE WHETHER CAPTAIN MUSKUS' MOVE COULD QUALIFY UNDER THE DO-IT-YOURSELF PROGRAM SINCE IT WAS NOT MADE INCIDENT TO A CHANGE IN DUTY STATION NOR DOES IT APPEAR TO HAVE BEEN MADE IN UNUSUAL OR EMERGENCY CIRCUMSTANCES. HOWEVER, IN VIEW OF THE LACK OF WEIGHT CERTIFICATES, AS EXPLAINED BELOW, THE INCENTIVE PAYMENT MAY NOT BE MADE IN ANY EVENT.

REGULATIONS IMPLEMENTING THE DO-IT-YOURSELF PROGRAM ARE FOUND IN VOLUME 1, JOINT TRAVEL REGULATIONS (1 JTR), CHAPTER 8, PART H. PARAGRAPH M8401, 1 JTR, PROVIDES THAT THE MEMBER WILL ESTABLISH THE NET WEIGHT OF HOUSEHOLD GOODS WITH CERTIFIED WEIGHT CERTIFICATES FROM A PUBLIC WEIGHMASTER OR GOVERNMENT SCALES. PARAGRAPH M8400, 1 JTR, ALSO PROVIDES THAT EACH OF THE SERVICES WILL ISSUE SUCH SUPPLEMENTAL REGULATIONS AS ARE CONSIDERED NECESSARY TO JUDICIALLY ADMINISTER THE PROGRAM. SUPPLEMENTAL REGULATIONS ISSUED BY THE DEPARTMENT OF THE ARMY, APPLICABLE TO CAPTAIN MUSKUS' SHIPMENT, ARE CONTAINED IN ARMY REGULATION (AR) 37-106, CHAPTER 10, SECTION II (CHANGE 70, DECEMBER 1, 1978).

BOTH THE JOINT TRAVEL REGULATIONS AND THE ARMY REGULATIONS EMPHASIZE THE ESTABLISHMENT OF THE ACTUAL WEIGHT OF THE HOUSEHOLD GOODS AS BEING OF PRIME IMPORTANCE IN THE OPERATION OF THE PROGRAM. PARAGRAPH 10-26, AR 37- 106, IN EFFECT AT THE TIME OF CAPTAIN MUSKUS' MOVE, PROVIDES THAT INCLUDED IN THE SUPPORTING DOCUMENTS TO BE SUBMITTED WITH THE TRAVEL VOUCHER ARE "TWO ORIGINAL ONE-WAY CERTIFIED WEIGHT TICKETS FOR EACH TRUCK/TRAILER - ONE WHEN EMPTY AND ONE WHEN FULL." THIS REQUIREMENT IS THE SAME FOR A MEMBER USING AN AUTHORIZED PRIVATELY OWNED VEHICLE OR FOR A MEMBER PERFORMING A LOCAL MOVE. THE REGULATIONS ALSO MAKE PROVISIONS FOR COUNSELING MEMBERS CONCERNING THE REQUIREMENTS OF DO-IT YOURSELF MOVES AND REQUIRE THAT THE TRANSPORTATION OFFICER APPROVE SUCH A MOVE. 1 JTR PARA. M8400 AND AR 37-106,

IN DECISION B-191016, APRIL 29, 1979, WE SPECIFICALLY OVERRULED A PRIOR DECISION IN WHICH WE HAD AUTHORIZED PAYMENT ON A DO-IT-YOURSELF MOVE BASED PARTIALLY UPON CONSTRUCTIVE WEIGHTS IN CONSIDERATION OF THE UNUSUAL CIRCUMSTANCES THERE. IN OUR PARA. 10-24. DECISION WE STATED THAT IT IS OUR VIEW THAT THE SERVICES' REGULATIONS, ISSUED PURSUANT TO THE AUTHORITY DELEGATED BY PARAGRAPH M8400, 1 JTR, LEGALLY MAY REQUIRE THAT WEIGHT CERTIFICATES FROM CERTIFIED SCALES SHOWING BOTH THE EMPTY AND LOADED WEIGHT OF THE VEHICLE MUST BE FURNISHED, AS A CONDITION TO A MEMBER'S QUALIFYING FOR PAYMENT. WE FOUND NOTHING IN THE LAW LIMITING THE AUTHORITY OF THE SERVICES IN THIS REGARD AND, ACCORDINGLY, WE STATED WE WOULD APPLY THAT REQUIREMENT IN THE FUTURE. MOREOVER, WE HAVE RECENTLY HELD THAT UNTIL SUCH TIME AS THE SERVICES DETERMINE THAT THE USE OF WEIGHT CERTIFICATES WILL NO LONGER BE CONSIDERED AS THE ONLY EVIDENCE ACCEPTABLE IN ESTABLISHING WEIGHTS UNDER THE DO-IT-YOURSELF PROGRAM, WE WILL CONTINUE TO APPLY THE WEIGHT CERTIFICATE AS AN EXCLUSIVE REQUIREMENT OF THE PROGRAM. B-198440, DECEMBER 31, 1980 (60 COMP.GEN. ). THEREFORE, CAPTAIN MUSKUS IS NOT ENTITLED TO RECEIVE PAYMENT UNDER THE DO-IT-YOURSELF PROGRAM SINCE HE DID NOT COMPLY WITH THE REQUIREMENTS OF THAT PROGRAM AND SUBMIT WEIGHT CERTIFICATES AS REQUIRED BY THE REGULATIONS IN EFFECT AT THE TIME HE MOVED HIS GOODS.

THE FACT THAT FORT LEWIS DID NOT RECEIVE THE MESSAGE CONCERNING OUR APRIL 20, 1979 DECISION UNTIL AFTER CAPTAIN MUSKUS' MOVE MAKES NO DIFFERENCE SINCE THE REGULATIONS REQUIRING WEIGHT CERTIFICATES WERE IN EFFECT AT THE TIME HE MOVED.

IN ADDITION, CAPTAIN MUSKUS CONTENDS THAT HE IS ENTITLED TO PAYMENT UNDER THE DO-IT-YOURSELF PROGRAM SINCE HE NEVER RECEIVED THE PROPER COUNSELING REQUIRED BY THE REGULATIONS. WHILE UNDER THE REGULATIONS IT IS THE RESPONSIBILITY OF THE TRANSPORTATION OFFICER TO COUNSEL THE MEMBER ABOUT THE PROGRAM PRIOR TO MOVING, THE LACK OF COUNSELING CANNOT BE USED TO AUTHORIZE PAYMENTS NOT OTHERWISE PROPER.

ACCORDINGLY, CAPTAIN MUSKUS MAY NOT BE REIMBURSED UNDER THE DO-IT YOURSELF PROGRAM.

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