B-156988, AUG. 2, 1965

B-156988, AUG. 2, 1965

TO MASTER SERGEANT BERNARD YELLIN, AF6979452:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 20, 1965, WITH ENCLOSURES, IN EFFECT REQUESTING A REVIEW OF OFFICE SETTLEMENT DATED FEBRUARY 1, 1965, WHICH ALLOWED YOU THE SUM OF $63.21 ON YOUR CLAIM FOR REFUND OF THE AMOUNT F $190.58 PAID BY YOU AS EXCESS COSTS RESULTING FROM THE SHIPMENT OF YOUR HOUSEHOLD GOODS FROM WIESBADEN, GERMANY, AND ALBUQUERQUE, NEW MEXICO, TO SHAW AIR FORCE BASE, SOUTH CAROLINA.

OUR FILE SHOWS THAT UNDER THE AUTHORITY OF SPECIAL ORDER NO. AA-591, DATED APRIL 8, 1963, OF HEADQUARTERS, 7101ST AIR BASE WING (USAFE), APO 332, NEW YORK, NEW YORK, TRANSFERRING YOU TO SHAW AIR FORCE BASE, SOUTH CAROLINA, ONE LOT OF YOUR HOUSEHOLD GOODS WITH A GROSS WEIGHT OF 3,254 POUNDS (3,091 POUNDS NET WEIGHT PLUS 163 POUNDS OR 5.263 PERCENT FOR PACKING) WAS SHIPPED FROM WIESBADEN, GERMANY, TO SHAW AIR FORCE BASE. SUCH GROSS WEIGHT DID NOT INCLUDE 380 POUNDS OF PROFESSIONAL BOOKS IN THE SHIPMENT. THE SECOND LOT OF YOUR HOUSEHOLD GOODS WAS REMOVED FROM STORAGE AT ALBUQUERQUE, NEW MEXICO, AND SHIPPED BY ALLIED VAN LINES, INCORPORATED, TO SHAW AIR FORCE BASE. THE GROSS WEIGHT OF THE SECOND LOT IS SHOWN AS 4,160 POUNDS (3,952 POUNDS NET WEIGHT PLUS 208 POUNDS OR 5.263 PERCENT FOR PACKING). THE TRANSPORTATION DIVISION, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, DETERMINED THAT THE WEIGHT OF THE TWO SHIPMENTS EXCEEDED THE WEIGHT ALLOWANCE (5,500 POUNDS) AUTHORIZED FOR A TECHNICAL SERGEANT (THE GRADE SHOWN ON YOUR ORDERS OF APRIL 8, 1963) BY 1,643 POUNDS AND, ACCORDINGLY, FOUND YOU INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $190.58 ON ACCOUNT OF SUCH EXCESS WEIGHT.

ON JUNE 11, 1964, YOU PAID THE EXCESS WEIGHT CHARGE UNDER PROTEST. YOU CONTENDED THAT HOLD BAGGAGE OF 1,625 POUNDS WHICH WAS COMBINED WITH THE FIRST LOT OF HOUSEHOLD GOODS PRIOR TO SHIPMENT SHOULD HAVE BEEN EXCLUDED FROM THE COMPUTATION OF THE TOTAL WEIGHT OF THE SHIPMENTS; THAT YOU SHOULD HAVE BEEN ALLOWED A WEIGHT AUTHORIZATION OF 6,000 POUNDS COMMENSURATE WITH YOUR GRADE AS MASTER SERGEANT; AND THAT THE SECOND LOT OF HOUSEHOLD GOODS SHIPPED TO SHAW AIR FORCE BASE IS SHOWN IN A LETTER DATED JANUARY 19, 1960, OF THE COMMERCIAL TRANSPORTATION SECTION, TRANSPORTATION BRANCH, KIRTLAND AIR FORCE BASE, NEW MEXICO, AS HAVING A NET WEIGHT OF 3,400 POUNDS WHEN PLACED IN STORAGE IN ALBUQUERQUE. THE TRANSPORTATION DIVISION, FINANCE CENTER, MADE A REDETERMINATION IN THE MATTER AND AFTER ASCERTAINING THAT YOU WERE ENTITLED TO A 6,000 POUND WEIGHT ALLOWANCE AS MASTER SERGEANT, THEY REESTABLISHED THE EXCESS COST AS $127.37 AND TRANSMITTED YOUR CLAIM WITH SUPPORTING PAPERS TO OUR CLAIMS DIVISION FOR APPROPRIATE ACTION.

BY SETTLEMENT DATED FEBRUARY 1, 1965, OUR CLAIMS DIVISION ALLOWED YOU THE DIFFERENCE OF $63.21 ($190.58 LESS $127.37), BUT DISALLOWED THE BALANCE OF YOUR CLAIM FOR THE REASON THAT YOUR CONTENTION OF THE INCORRECTNESS OF THE WEIGHT OF YOUR EFFECTS MAY NOT BE ACCEPTED AS CONTRAVENING THE WEIGHT ON THE BILLS OF LADING. THE COMPUTATION OF THE EXCESS COST OF $127.37 WAS SHOWN IN THAT SETTLEMENT AS HAVING BEEN COMPUTED AS PROVIDED IN PARAGRAPH M8006-2 OF THE JOINT TRAVEL REGULATIONS BY CHARGING YOU THE PRORATA PORTION OF THE COST OF THE SECOND SHIPMENT THAT THE EXCESS WEIGHT BORE TO THE TOTAL WEIGHT OF SUCH SHIPMENT.

IN YOUR LETTER OF MAY 20, 1965, YOU AGAIN CONTEND THAT (1) NO ALLOWANCE WAS GIVEN FOR THE HOLD BAGGAGE WHICH WAS COMBINED WITH THE SHIPMENT OF THE FIRST LOT OF HOUSEHOLD GOODS AND (2) THAT CONSIDERATION SHOULD BE GIVEN TO THE LETTER OF JANUARY 19, 1960, FROM KIRTLAND AIR FORCE BASE WHICH REFLECTS THE NET WEIGHT OF THE HOUSEHOLD GOODS WHEN PLACED IN STORAGE AS 3,400 POUNDS.

SECTION 406 OF TITLE 37, U.S.C. PROVIDES FOR THE TRANSPORTATION (INCLUDING PACKING AND CRATING) OF BAGGAGE AND HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES TO AND FROM SUCH LOCATIONS AND WITHIN SUCH WEIGHT ALLOWANCES AS MAY BE PRESCRIBED BY THE SECRETARIES. PARAGRAPH M8000-2 OF THE JOINT TRAVEL REGULATIONS PROMULGATED UNDER THE AUTHORITY OF THE ABOVE LAW DEFINES THE TERM "HOUSEHOLD GOODS" AS INCLUDING, AMONG OTHER THINGS, FURNITURE, CLOTHING, BAGGAGE AND ALL OTHER PERSONAL EFFECTS OF A SIMILAR CHARACTER EXCEPT CERTAIN LISTED ITEMS AMONG WHICH IS PERSONAL BAGGAGE WHEN CARRIED FREE ON TICKETS. PARAGRAPH M8002-1 PROVIDES THAT HOUSEHOLD GOODS OF MEMBERS, NOT IN EXCESS OF THE PRESCRIBED WEIGHT LIMIT IN POUNDS MAY BE TRANSPORTED AT GOVERNMENT EXPENSE IN ACCORDANCE WITH THE PROVISIONS OF THE REGULATIONS AND THAT THE WEIGHT ALLOWANCES SET FORTH IN PARAGRAPH M8003--- 6,000 POUNDS FOR THE GRADE HELD BY YOU--- ARE EXCLUSIVE OF BAGGAGE THAT IS TRANSPORTED FREE OF CHARGE ON A COMMERCIAL TICKET. SINCE YOUR UNACCOMPANIED BAGGAGE WAS COMBINED WITH YOUR FIRST LOT OF HOUSEHOLD GOODS AND THE GOVERNMENT EFFECTED PAYMENT TO THE CARRIER FOR THE TOTAL WEIGHT OF THE SHIPMENT, THERE IS NO AUTHORITY UNDER THE TOTAL CONTROLLING LAW AND REGULATIONS TO EXCLUDE 1,625 POUNDS OF HOLD BAGGAGE IN COMPUTING THE GROSS WEIGHT OF YOUR TWO SHIPMENTS. APPARENTLY, YOUR CONTENTION CONCERNING THE EXCLUSION OF SUCH HOLD BAGGAGE WAS MADE ON THE BASIS OF THE PROVISIONS OF SUBPARAGRAPHS 5506A AND B OF AIR FORCE MANUAL 75-4, DATED MAY 10, 0963, SINCE THE WEIGHT OF THE HOLD BAGGAGE, 1,625 POUNDS, WHICH YOU CONTEND SHOULD BE EXCLUDED FROM THE WEIGHT OF THE EFFECTS SHIPPED CORRESPONDS TO THE WEIGHT ALLOWANCE OF UNACCOMPANIED BAGGAGE PRESCRIBED IN THOSE SUBSECTIONS FOR A MEMBER IN YOUR GRADE WITH THE NUMBER OF YOUR DEPENDENTS. THOSE SUBSECTIONS SPECIFY GROSS WEIGHT ALLOWANCES OF UNACCOMPANIED BAGGAGE FOR PERSONNEL MOVING TO, FROM, AND BETWEEN OVERSEAS STATIONS ON COMPETENT ORDERS, THAT IS, 350 POUNDS FOR ADULTS, 175 POUNDS FOR EACH CHILD UNDER 12 YEARS OF AGE, AND 400 POUNDS FOR ENLISTED PERSONNEL IN THE GRADE OF E-4 WITH OVER 4 YEARS' SERVICE OR HIGHER MOVING UNDER PERMANENT CHANGE-OF-STATION ORDERS. HOWEVER, SUBPARAGRAPH 5506F PROVIDES THAT WHILE THE BAGGAGE ALLOWANCES AS SPECIFIED UNDER SUBPARAGRAPHS 5506A AND B FOR MILITARY PERSONNEL AND THEIR DEPENDENTS ARE IN ADDITION TO AND NOT PART OF THE HOUSEHOLD GOODS WEIGHT LIMITATIONS, IF ANY, SET FORTH IN CHAPTER 6 OF AIR FORCE MANUAL 75-4 (2,000 POUNDS NET WEIGHT LIMITATION ON AUTHORIZED SHIPMENTS OF HOUSEHOLD GOODS FOR AIR FORCE PERSONNEL TO AND FROM OVERSEAS AREAS WHERE ADEQUATELY FURNISHED QUARTERS ARE AVAILABLE), THE WEIGHT OF ALL BAGGAGE SHIPPED FOR AIR FORCE PERSONNEL AND/OR THEIR DEPENDENTS AT GOVERNMENT EXPENSE (AS OPPOSED TO BAGGAGE CHECKED FREE ON CARRIER'S TICKETS), IS TO BE CHARGED AGAINST THE HOUSEHOLD GOODS WEIGHT ALLOWANCE. THUS THE REGULATION PROVIDES NO BASIS FOR EXCLUDING 1,625 POUNDS OF HOLD BAGGAGE FROM THE GROSS WEIGHT OF THE OVERSEAS SHIPMENT.

REGARDING THE CORRECT WEIGHT OF THE SECOND LOT OF YOUR HOUSEHOLD GOODS WHICH WAS SHIPPED FROM ALBUQUERQUE, THERE IS NO LEGAL BASIS FOR US TO RECOGNIZE AND ACCEPT THE LETTER OF JANUARY 19, 1960, FROM KIRTLAND AIR FORCE BASE, IN THE ABSENCE OF SUBSTANTIATING EVIDENCE ESTABLISHING THAT SUCH LOT OF GOODS WHEN REMOVED FROM STORAGE AND PACKED FOR TRANSCONTINENTAL MOTOR SHIPMENT ON OR ABOUT JULY 15, 1963, DID NOT WEIGH 4,160 POUNDS (GROSS WEIGHT). IN THIS REGARD THE TRANSPORTATION DIVISION, FINANCE CENTER, IN A LETTER DATED JANUARY 15, 1965, TO OUR CLAIMS DIVISION STATED THAT THE CARRIER'S CERTIFICATION OF THE WEIGHT OF 4,160 POUNDS WAS BASED ON A WEIGH-MASTER'S CERTIFICATE. ACCORDINGLY, ON THE BASIS OF THE RECORD NOW BEFORE US AND SINCE YOU WERE REQUIRED BY THE REGULATIONS TO BE CHARGED WITH THE COST OF THE EXCESS WEIGHT, NO ADDITIONAL AMOUNT IS PAYABLE ON YOUR CLAIM. THE SETTLEMENT OF FEBRUARY 1, 1965, THEREFORE, IS SUSTAINED.