B-129386, DEC. 5, 1956

B-129386, DEC. 5, 1956

TO VICE ADMIRAL ROBERT GOLDTHWAITE, U.S. NAVY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 19, 1956, REQUESTING REVIEW OF THE SETTLEMENT OF JULY 17, 1956, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE AMOUNT COLLECTED FROM YOU AS THE EXCESS COST OF SHIPPING HOUSEHOLD EFFECTS FROM WASHINGTON, D.C., TO MECHANICSBURG, PENNSYLVANIA.

BY ORDERS DATED APRIL 28, 1953, YOU WERE DETACHED FROM DUTY IN WASHINGTON, D.C., AND DIRECTED TO PROCEED TO SAN DIEGO, CALIFORNIA, FOR TEMPORARY DUTY AND THENCE TO THE PORT IN WHICH THE FLAGSHIP OF THE COMMANDER, CARRIER DIVISION SEVENTEEN, MIGHT BE, FOR DUTY. YOUR HOUSEHOLD EFFECTS WERE PACKED, CRATED AND SHIPPED IN FIVE LOTS, THE FIRST FOUR OF WHICH FELL WHOLLY WITHIN YOUR AUTHORIZED WEIGHT ALLOWANCE. THE FIFTH LOT WAS PACKED, CRATED AND SHIPPED BY FREIGHT FROM WASHINGTON, D.C., TO MECHANICSBURG, PENNSYLVANIA, FOR STORAGE. THE WEIGHT AS BILLED BY ALPHA VAN LINES AND PAID FOR BY THE GOVERNMENT WAS 12,630 POUNDS. SINCE THIS EXCEEDED YOUR AVAILABLE WEIGHT ALLOWANCE BY 6,114 POUNDS, YOU WERE CHARGED WITH THE EXCESS COST OF $531.92, WHICH AMOUNT WAS COLLECTED FROM YOU BY CHECK AGE AGAINST YOUR PAY ACCOUNT.

IN YOUR PRESENT LETTER YOU STATE THAT THE SHIPMENT WAS REWEIGHED BY NAVAL SUPPLY DEPOT, MECHANICSBURG, PENNSYLVANIA; THAT IT WAS FOUND TO WEIGH 11,659 POUNDS, AND THAT ALPHA VAN LINES REFUNDED $84.47 TO THE DEPARTMENT OF THE NAVY BASED ON SUCH LESSER WEIGHT. YOU FURTHER ADVISE THAT THE NAVAL SUPPLY DEPOT AT MECHANICSBURG UNPACKED FIVE OF THE SIXTY-FIVE CARTONS IN THE SHIPMENT TO DETERMINE WHETHER THE TARE WEIGHT WAS EXCESSIVE, AND FOUND THAT THE WEIGHT OF THESE CARTONS WAS 1,255 POUNDS GROSS, 479 POUNDS NET, AND 776 POUNDS TARE. YOU BELIEVE THE ENTIRE SHIPMENT SHOULD HAVE BEEN UNPACKED AND REWEIGHED AT THAT TIME. YOU STATE, HOWEVER, THAT WHEN THE GOODS WERE REMOVED FROM STORAGE IN MARCH 1956, THEY WERE UNPACKED AND REWEIGHED PRIOR TO SHIPMENT BY VAN FROM MECHANICSBURG, PENNSYLVANIA, TO PENSACOLA, FLORIDA, AND FOUND TO HAVE A NET WEIGHT OF 6,740 POUNDS. YOU URGE THAT UNDER APPLICABLE LAW AND REGULATIONS YOU WERE ENTITLED TO SHIP 9,000 POUNDS NET (UNPACKED) WEIGHT, AND REQUEST THAT THE EXCESS COST BE RECOMPUTED USING A NET WEIGHT OF 6,740 POUNDS, AND THAT YOU BE GRANTED A REFUND OF $399.09 ON THAT BASIS.

SECTION 632 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT OF 1953, 66 STAT. 539, UPON WHICH YOU RELY IN CONTENDING THAT THE GOVERNMENT WAS OBLIGATED TO SHIP 9,000 POUNDS NET WEIGHT OF HOUSEHOLD EFFECTS FOR YOU WHICH "OBLIGATION HAS NOT BEEN CHANGED BY THE SEQUENCE OF EVENTS," PROVIDED FIRST THAT THE AVERAGE WEIGHT OF ALL SHIPMENTS OF EFFECTS MADE DURING THE FISCAL YEAR SHOULD NOT BE IN EXCESS OF 5,000 POUNDS NET WITH THE FURTHER LIMITATION THAT NO ONE SHIPMENT SHOULD EXCEED 9,000 POUNDS NET. IT IS EVIDENT THAT UNDER THESE PROVISIONS NO MEMBER OF THE UNIFORMED SERVICES, REGARDLESS OF HIS RANK, CAN ASSERT A STATUTORY RIGHT TO SHIPMENT OF THE MAXIMUM WEIGHT OF 9,000 POUNDS, NET, QUALIFIED AS THAT FIGURE IS BY THE DOMINANT PROVISION THAT THE AVERAGE NET WEIGHT OF ALL SHIPMENTS SHALL BE BUT SLIGHTLY IN EXCESS OF ONE-HALF OF THAT AMOUNT. THE JUDGE ADVOCATE GENERAL OF THE NAVY, IN A STATEMENT QUOTED BY YOU, SAID THAT "SECTION 632 DOES NOT DEFINE THE TERM "NET," AND IT SEEMS REASONABLE TO ASSUME THAT THE CONGRESS WAS AWARE OF THE CURRENT METHOD OF COMPUTING "NET" WEIGHTS AND HAD NO OBJECTION TO SUCH METHOD OF COMPUTATION.' THE EFFECT OF THIS INTERPRETATION OF THE STATUTE, WITH WHICH WE AGREE, WAS TO CONTINUE IN EFFECT THE METHOD OF COMPUTING NET WEIGHTS IN USE WHEN THE STATUTE WAS ENACTED. THUS THE EFFECT OF SECTION 632 GENERALLY WAS TO REDUCE TO 9,000 POUNDS ALL WEIGHT ALLOWANCES IN EXCESS OF THAT AMOUNT SHOWN IN THE TABLE IN PARAGRAPH 8001 OF THE JOINT TRAVEL REGULATIONS LEAVING OTHER PROVISIONS OF THE REGULATIONS TO OPERATE AS BEFORE, SUBJECT, HOWEVER, TO THE AVERAGE LIMITATION OF 5,000 POUNDS.

THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, PROVIDE (PARAGRAPH 8001) THAT HOUSEHOLD EFFECTS WITHIN SPECIFIED WEIGHT ALLOWANCES, DESIGNATED AS ACTUAL NET WEIGHTS, ARE AUTHORIZED FOR SHIPMENT. SUCH WEIGHTS ARE SET FORTH FOR VARIOUS RANKS AND GRADES AND PROVISION IS MADE FOR A PERCENTAGE INCREASE TO ALLOW FOR PACKING AND CRATING. UNDER THAT PROVISION, THE AUTHORIZED NET WEIGHT OF HOUSEHOLD EFFECTS WHICH MAY BE SHIPPED AT PUBLIC EXPENSE IS INCREASED BY 5 PERCENT FOR SHIPMENT BY VAN AND BY 25 PERCENT FOR SHIPMENT BY RAIL.

IT OBVIOUSLY WOULD BE IMPRACTICAL, IF NOT IMPOSSIBLE, TO WEIGH BEFORE PACKING, ALL THE HOUSEHOLD EFFECTS WHICH GO TO MAKE UP THE MANY SHIPMENTS OF EFFECTS MADE FOR SERVICE PERSONNEL IN ORDER TO ASCERTAIN THEIR TRUE NET WEIGHT, AND THE REGULATIONS CONTEMPLATE THAT SUCH SHIPMENTS AT GOVERNMENT EXPENSE SHALL BE ON THE BASIS OF THE WEIGHT AS PACKED FOR SHIPMENT, AT NOT TO EXCEED AN OVERALL WEIGHT ALLOWANCE OF NET WEIGHT PLUS AN ALLOWANCE FOR PACKING AND CRATING. SUCH OVERALL WEIGHT ALLOWANCE, OF WHICH THE NET WEIGHT OF THE HOUSEHOLD GOODS IS BUT ONE COMPONENT PART, REPRESENTS THE MAXIMUM WEIGHT THAT MAY BE SHIPPED AT GOVERNMENT EXPENSE IRRESPECTIVE OF WHETHER THE ACTUAL NET WEIGHT OF THE GOODS SHIPPED EXCEEDS THE NET WEIGHT ALLOWANCE SET FORTH IN THE REGULATIONS. WEIGHTS EXCEEDING THE MAXIMUM OVERALL WEIGHT ARE PROPERLY CHARGEABLE TO THE SHIPPER. OUR ACTION ON YOUR CLAIM MAY NOT BE AFFECTED BY THE WEIGHT OF A SUBSEQUENT SHIPMENT, NOR ARE WE AUTHORIZED TO MAKE ANY ADJUSTMENT FOR PACKING IN EXCESS OF THAT BELIEVED BY YOU TO BE NECESSARY. THERE WAS NO REQUIREMENT OF LAW OR REGULATION THAT YOUR HOUSEHOLD EFFECTS BE UNPACKED AND REWEIGHED ITEM BY ITEM (AT GOVERNMENT EXPENSE) UPON THEIR ARRIVAL AT MECHANICSBURG IN ORDER TO DETERMINE THE NET WEIGHT PRIOR TO COLLECTION OF EXCESS COSTS. FURTHER, THE COMMANDING OFFICER OF THE NAVAL SUPPLY DEPOT A MECHANICSBURG HAS REPORTED THAT THE MATERIALS USED IN CRATING YOUR EFFECTS WERE OF PROPER DIMENSIONS AND WERE APPLIED IN CONFORMITY WITH SPECIFICATIONS.

SINCE THE WEIGHT OF YOUR HOUSEHOLD GOODS AS SHIPPED EXCEEDED YOUR WEIGHT ALLOWANCE PLUS THE ALLOWANCE FOR PACKING AND CRATING, YOU WERE PROPERLY CHARGED WITH THE EXCESS COST OF THE SHIPMENT IRRESPECTIVE OF THE ACTUAL WEIGHT OF THE MATERIALS USED IN PACKING AND CRATING. HOWEVER, SINCE THE RECORD NOW SHOWS THAT ALPHA VAN LINES REFUNDED $84.47 TO THE DEPARTMENT OF THE NAVY BECAUSE THE GROSS WEIGHT OF THE SHIPMENT AS MADE WAS 11,659 POUNDS AS SHOWN ON THE BILL OF LADING, A SETTLEMENT FOR THAT AMOUNT WILL ISSUE IN DUE COURSE.