B-143133, AUG. 5, 1960

B-143133, AUG. 5, 1960

TO MAJOR DONALD C. OSWALD, O-69762:

REFERENCE IS MADE TO YOUR LETTER OF MAY 19, 1960, REQUESTING REVIEW OF THE SETTLEMENT DATED JANUARY 29, 1960, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE AMOUNT COLLECTED FROM YOU AS THE EXCESS COST OF SHIPPING YOUR HOUSEHOLD EFFECTS FROM NEW BEDFORD, MASSACHUSETTS, TO FORT LEAVENWORTH, KANSAS.

BY PARAGRAPH 71, SPECIAL ORDERS NO. 42, DATED FEBRUARY 28, 1958, DEPARTMENT OF THE ARMY, YOU WERE RELEASED FROM ASSIGNMENT AT THE BOSTON ARMY BASE AND ASSIGNED TO FORT LEAVENWORTH, KANSAS. INCIDENT TO THOSE ORDERS YOUR HOUSEHOLD EFFECTS WERE SHIPPED ON GOVERNMENT BILL OF LADING WY -7880634, FROM NEW BEDFORD, MASSACHUSETTS, TO FORT LEAVENWORTH, KANSAS, YOUR NEW DUTY STATION. THE HOUSEHOLD EFFECTS SHIPPED ARE SHOWN ON THE BILL OF LADING AS WEIGHING 11,510 POUNDS AND IT WAS FURTHER NOTED THAT 250 POUNDS OF SUCH SHIPMENT CONSISTED OF CERTIFIED PROFESSIONAL BOOKS AND EQUIPMENT. SINCE THE WEIGHT OF THE EFFECTS SHIPPED EXCEEDED YOUR AUTHORIZED WEIGHT ALLOWANCE, YOU WERE REQUIRED TO PAY THE EXCESS COSTS INCURRED IN THE AMOUNT OF $224.16.

YOUR CLAIM FOR REFUND WAS PRESENTED ON THE BASIS THAT YOU DID NOT RECEIVE PROPER CREDIT FOR THE WEIGHT OF YOUR PROFESSIONAL BOOKS, PAPERS, AND EQUIPMENT WHICH YOU CERTIFIED WAS "APPROXIMATELY 2000 POUNDS.' YOUR CLAIM FOR REFUND ON THAT BASIS WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE BECAUSE THE RECORDS SHOWED THAT YOU DID NOT DECLARE PROFESSIONAL BOOKS WEIGHING 2,000 POUNDS WHEN YOU MADE APPLICATION FOR SHIPMENT AND THERE WAS A WAY OF DETERMINING, ON THE RECORD THEN BEFORE US, THE ACTUAL WEIGHT OF BOOKS, PAPERS, AND EQUIPMENT WHICH MAY HAVE BEEN INCLUDED IN SUCH SHIPMENT. IN YOUR REQUEST FOR REVIEW YOU INDICATE THE BELIEF THAT, ON THE BASIS OF YOUR CERTIFICATION DATED APRIL 28, 1959, CERTIFYING THAT YOU HAD APPROXIMATELY 2,000 POUNDS OF PROFESSIONAL BOOKS AND EQUIPMENT WITHIN THE SHIPMENT INVOLVED, YOUR CLAIM FOR REFUND SHOULD BE ALLOWED. YOU ALSO SAY THAT, IN ACTUALITY, WE ARE CALLING YOUR CERTIFICATE FALSE.

THE SHIPPING OF HOUSEHOLD EFFECTS OF MEMBERS OF THE ARMED SERVICES IS GOVERNED BY THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (C). PARAGRAPH 8002 OF THESE REGULATIONS, IN EFFECT AT THE TIME HERE INVOLVED, PROVIDED THAT WHEN CERTIFIED BY THE MEMBER AS NECESSARY IN THE PERFORMANCE OF OFFICIAL DUTIES, SHIPMENT OF PROFESSIONAL BOOKS, PAPERS, AND EQUIPMENT UNDER THESE REGULATIONS SHOULD BE IN THE SAME MANNER AND UNDER THE SAME CONDITIONS AS OTHER HOUSEHOLD GOODS, EXCEPT THAT THE WEIGHT THEREOF SHOULD BE WITHOUT CHARGE AGAINST THE PRESCRIBED WEIGHT ALLOWANCE IF THEY WERE PACKED SEPARATELY, THE CONTAINERS WERE MARKED "PROFESSIONAL BOOKS, PAPERS AND EQUIPMENT," AND THE WEIGHT WAS SHOWN SEPARATELY ON THE BILL OF LADING OR OTHER SHIPPING DOCUMENT.

AT THE TIME OF THE DISALLOWANCE OF YOUR CLAIM BY OUR CLAIMS DIVISION, THE ONLY MARKING AS TO THE WEIGHT OF THE PROFESSIONAL BOOKS INCLUDED IN THE SHIPMENT OF YOUR EFFECTS WAS NOTED TO BE 250 POUNDS. SINCE THAT TIME, AND AFTER RECEIPT OF YOUR CURRENT REQUEST FOR REVIEW, WE HAVE RECEIVED ADVICE THROUGH THE TRANSPORTATION DIVISION, FINANCE CENTER, U.S. ARMY, THAT THE NEW BEDFORD STORAGE WAREHOUSE COMPANY HAS REPORTED, REGARDING THE SHIPMENT INVOLVED IN YOUR CLAIM, THAT THEIR RECORDS INDICATED THE USE OF APPROXIMATELY 20 BOOK CARTONS, EACH CARTON WEIGHING APPROXIMATELY 50 POUNDS. ON THE BASIS OF SUCH INDEPENDENT EVIDENCE INDICATING THAT 1,000 POUNDS OF YOUR HOUSEHOLD EFFECTS WERE PROFESSIONAL BOOKS, INSTRUCTIONS ARE BEING ISSUED TO CREDIT YOUR SHIPMENT WITH SUCH AUTHORIZED DEDUCTION AND ALLOW YOU THE AMOUNT DUE ON THAT BASIS.

INSOFAR AS THE OTHER 1,000 POUNDS OF BOOKS AND EQUIPMENT WHICH YOU STATE WAS INCLUDED WITH YOUR HOUSEHOLD EFFECTS, WE HAVE NO INDEPENDENT EVIDENCE OF RECORD TO SHOW THE INCLUSION OF SUCH PROFESSIONAL BOOKS AND EQUIPMENT, THE EVIDENCE INDICATING AS STATED ABOVE, THAT THE SHIPMENT INCLUDED ONLY 1,000 POUNDS OF PROFESSIONAL BOOKS, ETC. CONTRARY TO YOUR CONTENTIONS, WE ARE NOT QUESTIONING THE VERACITY OF YOUR CERTIFICATE DATED APRIL 28, 1959, IN WHICH YOU APPROXIMATED THE WEIGHT OF YOUR PROFESSIONAL BOOKS TO BE 2,000 POUNDS. HOWEVER, UNDER PARAGRAPH 8002 OF THE JOINT TRAVEL REGULATIONS THE CERTIFICATION OF A MEMBER APPLIES TO THE NECESSITY OF PROFESSIONAL BOOKS, ETC., IN THE PERFORMANCE OF OFFICIAL DUTIES, AND NOT TO THEIR WEIGHT. THUS, UNDER APPLICABLE REGULATIONS, WE MAY NOT ACCEPT YOUR CERTIFICATE OF ITSELF AS CONCLUSIVE EVIDENCE AS TO THE WEIGHT OF YOUR PROFESSIONAL BOOKS.

A SETTLEMENT ALLOWING THE AMOUNT FOUND DUE ON THE BASIS INDICATED ABOVE WILL ISSUE IN DUE COURSE.