B-153797, JUL. 21, 1964

B-153797, JUL. 21, 1964

TO CAPTAIN FRANCIS J. BERRY, USN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 14, 1963, CONCERNING THE MATTER OF YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $75.36, REPRESENTING EXCESS COSTS IN THE SHIPMENT, STORAGE, HANDLING AND DRAYAGE OF YOUR HOUSEHOLD EFFECTS BY VAN FROM NORFOLK, VIRGINIA, TO STORAGE IN ARLINGTON, VIRGINIA, UNDER ORDERS OF SEPTEMBER 29, 1961, AS MODIFIED. COLLECTION ACTION IN THE CASE IS BEING TAKEN BY THE NAVY DEPARTMENT.

BY ORDERS OF BUREAU OF NAVAL PERSONNEL DATED SEPTEMBER 29, 1961, YOU WERE DETACHED FROM DUTY ABOARD THE USS LITTLE ROCK AND WERE DIRECTED TO REPORT TO THE CHIEF OF BUREAU OF NAVAL WEAPONS, WASHINGTON, D.C., FOR DUTY. TWENTY DAYS' DELAY TO BE COUNTED AS LEAVE WAS AUTHORIZED. ON OCTOBER 30, 1961, YOUR ORDERS WERE MODIFIED TO PROVIDE FOR YOU TO REPORT FOR DUTY ON DECEMBER 15, 1961. THE ORDERS WERE FURTHER MODIFIED BY SECOND ENDORSEMENT DATED DECEMBER 6, 1961, TO PROVIDE THAT YOU WERE AUTHORIZED TO DELAY IN REPORTING UNTIL JANUARY 2, 1962. THIRD ENDORSEMENT TO THE ORDERS INDICATES YOU REPORTED FOR DUTY AT WASHINGTON, D.C., ON JANUARY 2, 1962. ON JANUARY 9, 1962, YOU WERE TEMPORARILY APPOINTED A CAPTAIN, U.S. NAVY, UNDER THE PROVISIONS OF 10 U.S.C. 5769, RETROACTIVELY EFFECTIVE JANUARY 1, 1962, AND TO RANK FROM JANUARY 1, 1962. IT APPEARS THAT YOU ACCEPTED THE APPOINTMENT ON JANUARY 11, 1962.

THE RECORD SHOWS THAT INCIDENT TO THE ORDERS OF SEPTEMBER 29, 1961, AS MODIFIED, YOU MADE TWO SHIPMENTS OF HOUSEHOLD EFFECTS, WEIGHING 208 AND 155 POUNDS, RESPECTIVELY, BY RAILWAY EXPRESS FROM NORFOLK, VIRGINIA, TO WASHINGTON, D.C. A FURTHER SHIPMENT OF EFFECTS, WEIGHING 12,290 POUNDS, WAS MADE BY VAN FROM NORFOLK, VIRGINIA, TO STORAGE IN ARLINGTON, VIRGINIA. BASED ON THE AUTHORIZED WEIGHT ALLOWANCE OF YOUR RANK AS COMMANDER OF 10,000 POUNDS, IT WAS DETERMINED THAT 1,993 POUNDS OF EXCESS WEIGHT, CHARGEABLE TO YOU, WAS SHIPPED TO STORAGE IN ARLINGTON, VIRGINIA, AT A COST OF $159.29 FOR TRANSPORTATION, STORAGE IN TRANSIT, WAREHOUSE HANDLING AND DRAYAGE. HOWEVER, A NOTICE OF CREDIT IN THE AMOUNT OF $83.93 ON ACCOUNT OF 1,050 POUNDS OF PROFESSIONAL BOOKS SHIPPED SUBSEQUENTLY WAS FORWARDED TO THE DISBURSING OFFICER HANDLING YOUR PAY ACCOUNT FOR CREDIT THERETO, LEAVING A NET BALANCE OF $75.36 WITH WHICH YOU WERE CHARGED FOR THE EXCESS WEIGHT SHIPPED.

THE STATUTORY AUTHORITY FOR TRANSPORTATION OF HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES, 37 U.S.C. 406, PROVIDES IN SUBSECTION (B) THAT A MEMBER OF A UNIFORMED SERVICE IS ENTITLED IN CONNECTION WITH TEMPORARY OR PERMANENT CHANGE OF STATION TO THE TRANSPORTATION OF HIS HOUSEHOLD EFFECTS OR REIMBURSEMENT THEREFOR, WITHIN SUCH WEIGHT ALLOWANCES AS PRESCRIBED BY THE SECRETARIES CONCERNED. PARAGRAPH 8003 OF THE JOINT TRAVEL REGULATIONS, AS THEN IN EFFECT, PROMULGATED PURSUANT TO THAT PROVISION, LISTS THE PERMANENT CHANGE OF STATION WEIGHT ALLOWANCES FOR COMMANDERS AND CAPTAINS OF THE NAVY TO BE 10,000 AND 11,000 POUNDS RESPECTIVELY. THE FIRST FOOTNOTE TO THAT PARAGRAPH PROVIDES THAT THE WEIGHT ALLOWANCE OF A MEMBER WILL BE BASED ON THE GRADE OR RATING HELD BY HIM ON THE DATE THE ORDERS AUTHORIZING SHIPMENT OF HOUSEHOLD GOODS BECOME EFFECTIVE. PARAGRAPH 3003-1B OF THE REGULATIONS PROVIDES THAT THE EFFECTIVE DATE OF ORDERS IS THE DATE OF THE MEMBER'S RELIEF (DETACHMENT) FROM THE OLD STATION EXCEPT THAT WHEN LEAVE OR DELAY PRIOR TO REPORTING TO THE NEW STATION IS AUTHORIZED IN THE ORDERS OR THE MEMBER IS GRANTED ADDITIONAL TRAVEL TIME TO PERMIT TRAVEL BY A SPECIFIC MODE OF TRANSPORTATION, THE AMOUNT OF SUCH LEAVE, DELAY, OR ADDITIONAL TRAVEL TIME WILL BE ADDED TO THE DATE OF RELIEF (DETACHMENT) TO DETERMINE THE EFFECTIVE DATE. SECTION 5775 OF TITLE 10, U.S.C. PROVIDES IN PERTINENT PART THAT EACH OFFICER WHO IS PROMOTED UNDER SECTION 5769 OF THAT TITLE IS ENTITLED TO THE PAY AND ALLOWANCES OF THE GRADE TO WHICH PROMOTED FROM THE DATE OF THE OCCURRENCE OF THE VACANCY THAT HE IS PROMOTED TO FILL, IF OTHERWISE QUALIFIED.

IN 22 COMP. GEN. 1107 (B-34770, DATED JUNE 15, 1943), WHICH WAS CITED AS AUTHORITY FOR THE EXCESS WEIGHT CHARGES MADE AGAINST YOU, THERE WAS CONSIDERED THE RIGHT OF A NAVAL OFFICER TEMPORARILY PROMOTED PURSUANT TO THE ACT OF JULY 24, 1941, 55 STAT. 603, TO THE HOUSEHOLD EFFECTS WEIGHT OF THE RANK TO WHICH HE WAS APPOINTED WHERE HIS EFFECTS WERE SHIPPED UPON PERMANENT CHANGE OF STATION SUBSEQUENT TO THE DATE SPECIFIED IN THE APPOINTMENT, BUT PRIOR TO THE DATE OF RECEIPT AND ACCEPTANCE OF SUCH APPOINTMENT. THERE WAS CITED AS AUTHORITY FOR USING THE WEIGHT ALLOWANCE OF THE HIGHER GRADE SECTION 5 OF THE ACT OF JUNE 30, 1942, 56 STAT. 465, WHICH PROVIDED THAT PERSONNEL APPOINTED UNDER THE ACT OF JULY 24, 1941, WERE ENTITLED TO THE PAY AND ALLOWANCES OF THE GRADE OR RANK TO WHICH APPOINTED FROM THE DATE ON WHICH SUCH APPOINTMENTS WERE MADE BY THE PRESIDENT AND THAT SUCH APPOINTMENTS, UNLESS EXPRESSLY DECLINED, SHOULD BE REGARDED FOR ALL PURPOSES AS HAVING BEEN ACCEPTED ON THE DATE MADE, WITHOUT FORMAL ACCEPTANCE OR OATH OF OFFICE. SINCE, HOWEVER, THE TRANSPORTATION OF HOUSEHOLD EFFECTS FURNISHED MEMBERS OF THE UNIFORMED SERVICES UNDER LAWS IN EFFECT AT THAT TIME WAS NOT PROVIDED ON A MONETARY ALLOWANCE BASIS BUT WAS AUTHORIZED AS A SERVICE RENDERED IN KIND, SUCH STATUTORY PROVISIONS WERE NOT APPLICABLE TO THE TRANSPORTATION OF HOUSEHOLD EFFECTS AND AS AN OFFICER PROMOTED TEMPORARILY IS PRESUMED TO BE FUNCTIONING IN THE LOWER GRADE UNTIL HE RECEIVES NOTICE OF HIS PROMOTION, IT WAS HELD THAT HIS RIGHT TO TRANSPORTATION OF HOUSEHOLD EFFECTS WAS LIMITED TO THE WEIGHT ALLOWANCE PRESCRIBED FOR THE RANK WHICH HE IN FACT HELD ON THE EFFECTIVE DATE OF SUCH ORDERS.

THE PROVISIONS OF 37 U.S.C. 406, NOW IN EFFECT, DO NOT PROVIDE TRANSPORTATION OF HOUSEHOLD EFFECTS IN THE FORM OF A MONETARY ALLOWANCE BUT CONTINUE TO AUTHORIZE SUCH TRANSPORTATION ON AN IN KIND BASIS AND, ACCORDINGLY, THE PROVISIONS OF 10 U.S.C. 5775 DO NOT OPERATE TO CREATE ENTITLEMENT TO THE WEIGHT ALLOWANCES OF THE HIGHER GRADE FROM THE DATE OF THE APPOINTMENT. SINCE THE EFFECTIVE DATE OF YOUR CHANGE OF STATION ORDERS WAS JANUARY 2, 1962, AND THE ORDERS ANNOUNCING YOUR APPOINTMENT TO CAPTAIN WERE NOT ISSUED UNTIL JANUARY 9, 1962, YOU WERE LIMITED TO THE WEIGHT ALLOWANCE PRESCRIBED FOR A COMMANDER ON THE EFFECTIVE DATE OF SUCH ORDERS.

ACCORDINGLY, YOU SHOULD REMIT THE AMOUNT DETERMINED TO BE DUE FOR THE TRANSPORTATION OF YOUR HOUSEHOLD EFFECTS TO THE DISBURSING OFFICER PRESENTLY CARRYING YOUR PAY ACCOUNT IF YOU HAVE NOT ALREADY DONE SO.

A COPY OF THIS LETTER IS BEING SENT TO THE NAVY FINANCE CENTER, WASHINGTON 25, D.C. ..END :