B-148361, APR. 3, 1962

B-148361, APR. 3, 1962

TO CAPTAIN VICTOR P. RIZZO, USA (RETIRED)

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 24, 1962, REQUESTING RECONSIDERATION OF THE SETTLEMENT DATED FEBRUARY 15, 1962, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE AMOUNT COLLECTED FROM YOU AS THE EXCESS COST OF YOUR SHIPMENT OF HOUSEHOLD EFFECTS INCIDENT TO YOUR PERMANENT CHANGE OF STATION FROM STUTTGART, GERMANY, TO FORT DIX, NEW JERSEY.

THE RECORD SHOWS THAT INCIDENT TO YOUR RETURN FROM OVERSEAS UNDER LETTER ORDERS 4-1, HEADQUARTERS, 7TH ARMY AVIATION TRAINING CENTER, APO 46, DATED APRIL 8, 1959, YOUR HOUSEHOLD EFFECTS WERE SHIPPED TO FORT DIX, NEW JERSEY, IN FOUR SHIPMENTS. AFTER DEDUCTING THE WEIGHTS OF THREE SHIPMENTS, THE WEIGHT OF THE FOURTH SHIPMENT FROM FREDERICK,OKLAHOMA (FORT SILL), EXCEEDED THE UNUSED BALANCE FOR YOUR AUTHORIZED WEIGHT ALLOWANCE, EXCLUSIVE OF PROFESSIONAL BOOKS, PAPERS AND EQUIPMENT AS PRESCRIBED BY PARAGRAPHS 8001 AND 8002 OF THE JOINT TRAVEL REGULATIONS, BY 2,842 POUNDS AND YOU WERE REQUIRED TO PAY THE GOVERNMENT THE COST FOR TRANSPORTATION OF SUCH EXCESS WEIGHT IN THE AMOUNT OF $310.34. YOUR CLAIM FOR REFUND OF SUCH AMOUNT WAS BASED ON THE CONTENTION THAT YOU DID NOT RECEIVE PROPER CREDIT FOR THE WEIGHT OF YOUR PROFESSIONAL BOOKS WHICH YOU SAY WEIGHED APPROXIMATELY 1,200 TO 1,500 POUNDS. YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO SHOW THE AMOUNT OF SUCH PROFESSIONAL BOOKS AS BEING PACKED SEPARATELY AND MARKED ACCORDING TO TO REGULATIONS.

IN YOUR REQUEST FOR REVIEW YOU CONTEND THAT AN OVERSIGHT ON THE PART OF A CLERK IN NOT INCLUDING THE WEIGHT OF YOUR PROFESSIONAL BOOKS WAS RESPONSIBLE FOR THE OVERWEIGHT SHIPMENT IN YOUR CASE AND YOU APPEAR TO BELIEVE THAT YOU SHOULD NOT BE HELD RESPONSIBLE FOR WHAT YOU CLAIM IS AN ADMINISTRATIVE ERROR IN NOT LISTING YOUR PROFESSIONAL BOOKS SEPARATELY AS SUCH INCIDENT TO THE SHIPMENTS INVOLVED.

THE SHIPMENT OF PROFESSIONAL BOOKS, PAPERS AND EQUIPMENT OF MEMBERS OF THE UNIFORMED SERVICES IS AUTHORIZED BY THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C). PARAGRAPH 8003 OF THE JOINT TRAVEL REGULATIONS, AS APPLICABLE IN YOUR CASE, PROVIDES THAT WHEN CERTIFIED BY THE MEMBER AS NECESSARY IN THE PERFORMANCE OF HIS OFFICIAL DUTIES, SHIPMENT OF PROFESSIONAL BOOKS, PAPERS AND EQUIPMENT UNDER THOSE REGULATIONS SHALL BE IN THE SAME MANNER AND UNDER THE SAME CONDITIONS AS OTHER HOUSEHOLD GOODS EXCEPT THAT THE WEIGHT THEREOF SHALL BE WITHOUT CHARGE AGAINST THE PRESCRIBED WEIGHT ALLOWANCE. THE REGULATIONS, HOWEVER, REQUIRE THAT SUCH BOOKS, PAPERS, AND EQUIPMENT BE PACKED SEPARATELY; THAT THE CONTAINERS BE MARKED "PROFESSIONAL BOOKS, PAPERS, AND EQUIPMENT; " AND THAT THE WEIGHT OF SUCH CONTAINERS BE SHOWN SEPARATELY ON THE BILLS OF LADING OR OTHER SHIPPING DOCUMENTS. THUS, THE WEIGHT OF THE BOOKS AND EQUIPMENT MUST BE ESTABLISHED WITH CERTAINTY AND DOCUMENTARY EVIDENCE OF SUCH WEIGHT MUST BE FURNISHED. A MERE APPROXIMATION DOES NOT MEET THE REQUIREMENTS OF THE LAW SINCE PUBLIC FUNDS MAY BE DISBURSED ONLY ON THE ACTUAL FACTS INVOLVED.

THE REGULATIONS SET FORTH THE OFFICIAL METHOD OF DETERMINING SUCH WEIGHT AND A WEIGHT SO ESTABLISHED IS EXACT AND CERTAIN. BASED ON EVIDENCE SUBMITTED ON YOUR BEHALF BY THE KARL LOHLE MOBELTRANSPORTS FIRM, THE TRANSPORTATION OFFICER IN STUTTGART IN CONSIDERING YOUR CLAIM RECOMMENDED THAT YOU BE CREDITED WITH 500 POUNDS OF PROFESSIONAL BOOKS ON THE SHIPMENT OF YOUR HOUSEHOLD EFFECTS INCIDENT TO YOUR PERMANENT CHANGE OF STATION FROM GERMANY TO FORT DIX, NEW JERSEY. THIS RECOMMENDATION WAS APPROVED BY THE CHIEF OF TRANSPORTATION AND YOUR EXCESS TRANSPORTATION COSTS ACCORDINGLY WERE REDUCED FROM $364.94 TO $310.34. WHILE YOU HAVE ALSO SUBMITTED SOME EVIDENCE TO THE EFFECT THAT ON YOUR RETIREMENT YOU WERE CREDITED WITH 2,500 POUNDS OF PROFESSIONAL BOOKS, PAPERS, AND EQUIPMENT, THE ARMY TRANSPORTATION OFFICIALS MADE NO FURTHER ADJUSTMENT IN YOUR EXCESS WEIGHT CHARGE ON THE BASIS OF SUCH EVIDENCE AND WE MAY NOT ACCEPT THE EVIDENCE AS ESTABLISHING WITH ANY CERTAINTY THAT THE WEIGHT OF THE PROFESSIONAL BOOKS INCLUDED WITH THE PRIOR SHIPMENTS INVOLVED IN YOUR CLAIM EXCEEDED THE 500 POUNDS WITH WHICH YOU HAVE BEEN CREDITED. ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE SETTLEMENT OF FEBRUARY 15, 1962, IS SUSTAINED.

WITH REFERENCE TO YOUR REQUEST FOR INFORMATION AS TO YOUR RIGHT OF APPEAL TO OUR DECISION, YOU ARE ADVISED THAT THE DECISIONS OF THIS OFFICE ON CLAIMS AGAINST THE UNITED STATES ARE FINAL AND CONCLUSIVE ON ALL EXECUTIVE OFFICES OF THE GOVERNMENT. HOWEVER, INDEPENDENTLY OF THE AUTHORITY VESTED IN THIS OFFICE, THE COURT OF CLAIMS OF THE UNITED STATES HAS JURISDICTION TO DETERMINE CERTAIN CLAIMS AGAINST THE UNITED STATES IF FILED THERE "WITHIN SIX YEARS AFTER SUCH CLAIM FIRST ACCRUES.' 28 U.S.C. 2501.