B-153352, FEB. 12, 1964

B-153352, FEB. 12, 1964

TO LIEUTENANT COLONEL JOHN B. BOK, 19280A, USAF, MC:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 17, 1964, REQUESTING RECONSIDERATION OF THE ACTION IN OUR SETTLEMENT DATED DECEMBER 19, 1963, WHICH DISALLOWED YOUR CLAIM FOR $1,258.32 REPRESENTING THE COST INCURRED BY YOU IN SHIPPING YOUR HOUSEHOLD GOODS FROM WYNNEWOOD, PENNSYLVANIA, TO ALBUQUERQUE, NEW MEXICO, INCIDENT TO YOUR CHANGE OF STATION ORDERS OF MARCH 31, 1960. ALSO, THERE HAS BEEN RECEIVED HERE AN INQUIRY FROM THE HONORABLE HUGH SCOTT, UNITED STATES SENATE, CONCERNING THE MATTER.

BY PARAGRAPH 1 OF SPECIAL ORDERS NO. A-470 DATED MARCH 31, 1960 (ADDRESSED TO LT.COL. ZBIGNIEW J. BACZEWSKI--- YOU SAY YOU SINCE HAVE LEGALLY CHANGED YOUR NAME TO JOHN B. BOK), YOU WERE RELIEVED FROM YOUR OVERSEAS ASSIGNMENT WITH THE UNITED STATES AIR FORCE, APO 119, NEW YORK, NEW YORK, AND ASSIGNED TO KIRTLAND AIR FORCE BASE, NEW MEXICO, ON A PERMANENT CHANGE OF STATION. YOU WERE AUTHORIZED 30 DAYS' DELAY FOR LEAVE PURPOSES WITH A LEAVE ADDRESS SHOWN AS UPPER DARBY, PENNSYLVANIA. THE RECORD INDICATES THAT BY GOVERNMENT BILL OF LADING (AF-217758 DATED APRIL 7, 1960), YOUR HOUSEHOLD GOODS WERE AUTHORIZED TO BE SHIPPED FROM CHAUMONT, FRANCE, TO KIRTLAND AIR FORCE BASE, NEW MEXICO, YOUR NEW DUTY STATION. THE RECORD FURTHER INDICATES THAT THE HOUSEHOLD GOODS WERE SHIPPED FROM CHAUMONT, FRANCE, TO NEW ORLEANS, LOUISIANA, THE PORT SERVING YOUR NEW DUTY STATION AND THAT, PURSUANT TO YOUR REQUEST, A DIVERSION ORDER WAS ISSUED BY THE TRANSPORTATION OFFICER AT NEW ORLEANS DIVERTING THE HOUSEHOLD GOODS FROM NEW ORLEANS TO AN ADDRESS FURNISHED BY YOU AT UPPER DARBY, PENNSYLVANIA.

IN CONNECTION WITH THE DIVERSION OF YOUR EFFECTS, YOU SAID IN YOUR ORIGINAL CLAIM THAT SOON AFTER YOUR DEPARTURE FROM EUROPE AND YOUR ARRIVAL AT YOUR HOME IN PHILADELPHIA, PENNSYLVANIA, YOU WERE FACED WITH THE DECISION AS TO WHETHER YOU SHOULD BRING YOUR FAMILY TO KIRTLAND AIR FORCE BASE, NEW MEXICO, OR LEAVE THEM IN PHILADELPHIA. YOU SAID THAT YOU OWNED A HOME IN PHILADELPHIA WHICH WOULD HAVE TO BE SOLD BEFORE YOUR FAMILY MOVED TO KIRTLAND AIR FORCE BASE AND SINCE THE OUTCOME OF THE SALE WAS UNCERTAIN, YOU DECIDED NOT TO HAVE YOUR HOUSEHOLD GOODS SHIPPED TO KIRTLAND AIR FORCE BASE BUT TO HAVE THEM STORED IN TRANSIT. AFTER RECEIVING ADVICE FROM YOUR FORMER OVERSEAS STATION THAT YOUR GOODS WERE EN ROUTE, YOU CONTACTED THE ARMY TRANSPORTATION OFFICER AT PHILADELPHIA AND IT WAS AGREED VERBALLY THAT THE BEST SOLUTION WAS TO HAVE THE GOODS DIVERTED TO PHILADELPHIA FOR STORAGE. AT YOUR WRITTEN REQUEST, A DIVERSION ORDER WAS ISSUED BY THE TRANSPORTATION OFFICER AT THE NEW ORLEANS TERMINAL DIVERTING YOUR PROPERTY FROM THAT POINT TO UPPER DARBY, PENNSYLVANIA. THE TRANSPORTATION OFFICER AT NEW ORLEANS BY TELEGRAM SUGGESTED THAT YOU ADVISE THE LOUDERBACK TRANSPORTATION COMPANY, PHILADELPHIA, TO HOLD YOUR PROPERTY IN STORAGE IN TRANSIT FOR 90 DAYS. YOU STATE THAT YOU CONTACTED THE COMPANY AND YOUR EXPRESSED THE DESIRE TO HAVE YOUR GOODS STORED IN YOUR GARAGE INSTEAD OF IN A WAREHOUSE. YOU SAID THAT THE ARMY TRANSPORTATION OFFICER AT PHILADELPHIA VERBALLY INFORMED YOU THAT THERE WAS NO OBJECTION TO THIS PROCEDURE AND, CONSEQUENTLY, YOUR GOODS WERE DELIVERED TO YOUR HOME ADDRESS AND STORED IN YOUR GARAGE. THE COST OF SHIPPING THOSE GOODS FROM CHAUMONT, FRANCE, TO NARABETH, PENNSYLVANIA, WAS PAID FOR BY THE GOVERNMENT IN THE AMOUNT OF $5,699.13. YOU FURTHER SAY THAT YOU CONSUMMATED THE SALE OF YOUR HOME BEFORE THE 90- DAY PERIOD EXPIRED. THEREAFTER, YOU CONTACTED THE TRANSPORTATION OFFICER AT PHILADELPHIA FOR THE PURPOSE OF THEN MOVING YOUR EFFECTS TO YOUR NEW DUTY STATION AT KIRTLAND AIR FORCE BASE, BUT TO YOUR SURPRISE YOU WERE INFORMED THAT THIS COULD NOT BE DONE AT GOVERNMENT EXPENSE. THE REASON GIVEN, YOU STATE, WAS THAT YOU HAD ACCEPTED DELIVERY OF YOUR GOODS AT YOUR HOME IN PHILADELPHIA. YOU WENT AHEAD AND HAD YOUR EFFECTS SHIPPED AT YOUR OWN EXPENSE FROM WYNNEWOOD, PENNSYLVANIA, TO ALBUQUERQUE, AT A COST OF $1,258.32.

YOUR CLAIM WAS DISALLOWED SUBSTANTIALLY FOR THE REASON THAT UNDER THE APPLICABLE PROVISIONS OF THE JOINT TRAVEL REGULATIONS, TRANSPORTATION OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE EXTENDS ONLY TO THE THROUGH SHIPMENT TO AUTHORIZED ULTIMATE DESTINATION OF THE SAME LOT OF HOUSEHOLD GOODS AND PRECLUDES SHIPMENT FOR THE CONVENIENCE OF THE MEMBER TO SOME OTHER PLACE FOR RESHIPMENT LATER TO SUCH AUTHORIZED ULTIMATE DESTINATION. YOU WERE FURTHER ADVISED IN THE DISALLOWANCE THAT YOU MAY BE INDEBTED FOR EXCESS CHARGES INVOLVED ON THE SHIPMENT ACTUALLY MADE DUE TO DISTANCE HAULED AND WEIGHT CARRIED IN EXCESS OF THAT AUTHORIZED BY THE JOINT TRAVEL REGULATIONS. YOU NOW STATE THAT THE GOODS WERE NOT DIVERTED TO YOUR HOME FOR YOUR CONVENIENCE; THAT YOU MADE NO DEMANDS ON THE AUTHORITIES, THAT AUTHORIZED PERSONNEL, NOT YOU, MADE THE DECISION TO DIVERT THE GOODS, AND THAT THE DIVERSION OF THE GOODS WAS NOT FOR "DELIVERY TO MY HOME" BUT FOR "STORAGE IN TRANSIT.'

THE AUTHORITY FOR TRANSPORTATION OF HOUSEHOLD EFFECTS FOR MEMBERS OF THE UNIFORMED SERVICE IS GOVERNED BY THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO SECTION 406 OF TITLE 37, U.S. CODE. PARAGRAPH 8005 (CHANGE 79, EFFECTIVE APRIL 1, 1959--- NOW CONTAINED IN PARAGRAPH 8011) OF THOSE REGULATIONS, IN EFFECT DURING THE PERIOD HERE INVOLVED, PROVIDES, AS FOLLOWS:

"UNLESS OTHERWISE SPECIFICALLY PROVIDED HEREIN, AUTHORITY CONTAINED IN THESE REGULATIONS FOR THE SHIPMENT OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE EXTENDS ONLY TO THE THROUGH SHIPMENT TO AUTHORIZED ULTIMATE DESTINATION OF THE SAME LOT OF HOUSEHOLD GOODS OR EFFECTS. SHIPMENT MAY NOT BE MADE FOR THE CONVENIENCE OF THE MEMBER TO SOME OTHER PLACE FOR RESHIPMENT LATER TO SUCH AUTHORIZED ULTIMATE DESTINATION.'

THE JOINT TRAVEL REGULATIONS FURTHER PROVIDE (PARAGRAPH 8100-2A) THAT A MEMBER IS ENTITLED TO TEMPORARY STORAGE AT GOVERNMENT EXPENSE FOR A PERIOD OF 90 DAYS IN CONNECTION WITH ANY AUTHORIZED SHIPMENT OF HOUSEHOLD GOODS AND SUCH STORAGE MAY ACCRUE AT PLACE OF ORIGIN, IN TRANSIT, AT DESTINATION, OR ANY COMBINATION THEREOF (PARAGRAPH 8100 1).

UPON THE RECEIPT OF ORDERS FROM OVERSEAS TO A DUTY STATION WITHIN THE UNITED STATES, THE RIGHT ACCRUES TO A MEMBER TO HAVE HIS HOUSEHOLD GOODS (WITHIN THE PRESCRIBED WEIGHT ALLOWANCE) TRANSPORTED FROM THE OLD TO THE NEW DUTY STATION AT GOVERNMENT EXPENSE (PARAGRAPH 8253 OF THE REGULATIONS). HOWEVER, WHEN THE SHIPMENT IS DIVERTED AND MADE TO A SELECTED LOCATION OTHER THAN TO THE NEW PERMANENT STATION, AS IN YOUR CASE, NO FURTHER SHIPMENT IS AUTHORIZED AT PUBLIC EXPENSE IN THE ABSENCE OF ORDERS REQUIRING A FURTHER CHANGE IN PERMANENT DUTY STATION. UNDER YOUR ORDERS OF MARCH 31, 1960, THE GOVERNMENT, UPON YOUR REQUEST, WAS OBLIGATED TO MOVE YOUR EFFECTS FROM YOUR OVERSEAS STATION TO YOUR NEW DUTY STATION AT KIRTLAND AIR FORCE BASE, ALBUQUERQUE, NEW MEXICO, OR TO SOME SELECTED LOCATION AT NO GREATER COST. THE RECORD INDICATES THAT, ON THE BASIS OF YOUR WRITTEN REQUEST OF MAY 16, 1960, THE TRANSPORTATION OFFICER AT NEW ORLEANS DIVERTED YOUR EFFECTS FOR SHIPMENT TO UPPER DARBY, PENNSYLVANIA, INSTEAD OF TO KIRTLAND AIR FORCE BASE AS ORIGINALLY REQUESTED. YOU ADMIT IN YOUR CLAIM THAT THE SHIPMENT OF YOUR EFFECTS TO KIRTLAND WAS CONDITIONED ON THE SALE OF YOUR HOME IN PHILADELPHIA AND YOU SAID "I DECIDED NOT TO HAVE MY HOUSEHOLD GOODS SHIPPED TO KIRTLAND AFB, NEW MEXICO, BUT TO HAVE THEM STORED IN TRANSIT.' YOU ALSO EXPRESSED A DESIRE, IF OTHERWISE AUTHORIZED, THAT "THESE GOODS BE STORED IN MY LARGE GARAGE ON MY PREMISES INSTEAD OF IN SOME WAREHOUSE.' THIS WAS NOT A THROUGH SHIPMENT OF THE EFFECTS TO ALBUQUERQUE, NEW MEXICO, YOUR AUTHORIZED ULTIMATE DESTINATION, WITHIN THE MEANING OF THE REGULATIONS. IT SEEMS CLEAR FROM THE RECORD THAT THE DIVERSION WAS ACCOMPLISHED SOLELY FOR YOUR PERSONAL CONVENIENCE AND THAT ANY FURTHER SHIPMENT WAS CONTINGENT ON THE SALE OF YOUR HOME. EVEN ASSUMING THAT YOUR EFFECTS WERE CONSIDERED TO HAVE BEEN "STORED IN TRANSIT" AT YOUR GARAGE IN PHILADELPHIA, THERE APPARENTLY WOULD BE NO BASIS FOR ALLOWING YOU CLAIM. UNDER THE REGULATIONS AND YOUR ORDERS YOU WERE ENTITLED TO HAVE YOUR EFFECTS SHIPPED FROM CHAUMONT, FRANCE, TO KIRTLAND AIR FORCE BASE ALBUQUERQUE, NEW MEXICO, YOUR NEW DUTY STATION, OR TO SOME OTHER LOCATION AT NO GREATER COST. SINCE THE DISTANCE BETWEEN YOUR OVERSEAS STATION AND PHILADELPHIA, VIA THE TERMINAL PORT AT NEW ORLEANS, EXCEEDED THE DISTANCE BETWEEN YOUR OVERSEAS STATION AND KIRTLAND AIR FORCE BASE, NEW MEXICO, AND SINCE THE SHIPMENT TO PHILADELPHIA WAS AT YOUR REQUEST, NO FURTHER SHIPMENT OF YOUR EFFECTS AT PUBLIC EXPENSE WAS AUTHORIZED UNDER YOUR ORDERS OF MARCH 31, 1960. HENCE, UNDER THE PROVISIONS OF PARAGRAPH 8005 OF THE JOINT TRAVEL REGULATIONS MENTIONED ABOVE, THE RESHIPMENT OF YOUR EFFECTS FROM PHILADELPHIA TO ALBUQUERQUE, NEW MEXICO, IS NOT AUTHORIZED AT GOVERNMENT EXPENSE. EVEN IF IT WERE ESTABLISHED THAT YOU WERE ERRONEOUSLY ADVISED IN THE MATTER, IT WOULD NOT AFFECT YOUR RIGHT AS IT IS A WELL-SETTLED PRINCIPAL OF LAW THAT THE GOVERNMENT IS NOT BOUND BY THE NEGLIGENT OR ERRONEOUS ACTS OF ITS OFFICERS OR AGENTS, IN THE ABSENCE OF A STATUTE SO PROVIDING. ROBERTSON V. SICHEL, 127 U.S. 507, 515. THE JOINT TRAVEL REGULATIONS ARE STATUTORY REGULATIONS AND MILITARY PERSONNEL ARE CHARGEABLE WITH KNOWLEDGE THEREOF.

ACCORDINGLY, THE SETTLEMENT OF DECEMBER 19, 1963, IS CORRECT AND IS SUSTAINED.