B-163247, JUL. 8, 1968

B-163247, JUL. 8, 1968

TO LIEUTENANT COLONEL GEORGE P. WARD;

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 13, 1967, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR REIMBURSEMENT OF THE COST INCURRED BY YOU IN SHIPPING A PORTION OF YOUR HOUSEHOLD EFFECTS FROM YOUR OVERSEA STATION TO KELLY AIR FORCE BASE, TEXAS, INCIDENT TO REASSIGNMENT ORDERS DATED DECEMBER 27, 1966, AS AMENDED.

YOUR HOUSEHOLD EFFECTS WERE SHIPPED FROM ZWEIBRUCKEN, GERMANY, TO KELLY AIR FORCE BASE, TEXAS. THIS SHIPMENT INCLUDED 1572 POUNDS OF EFFECTS WHICH WERE MOVED AT YOUR OWN EXPENSE. YOU WERE ADVISED THAT THESE EFFECTS WERE IN EXCESS OF THE WEIGHT ALLOWANCE OF 3750 POUNDS, WHICH YOU WERE AUTHORIZED BY AIR FORCE REGULATIONS TO SHIP FROM ZWEIBRUCKEN AT GOVERNMENT EXPENSE.

IN YOUR CLAIM YOU SAID THAT YOU OCCUPIED GERMAN ECONOMY HOUSING AND GOVERNMENT QUARTERS WHILE YOU WERE AT ZWEIBRUCKEN, THAT HOUSING AND BILLETING THERE WERE UNDER ARMY CONTROL, AND WERE FURNISHED ACCORDING TO ARMY STANDARDS, WHICH WERE CONSIDERABLY BELOW THOSE OF THE AIR FORCE. A CONSEQUENCE, YOU PROCURED ADDITIONAL HOUSEHOLD EFFECTS. APPARENTLY THESE EFFECTS WERE INCLUDED IN YOUR SHIPMENT TO THE UNITED STATES.

YOU SAY THAT ARMY PERSONNEL IN THAT AREA WERE ALLOWED 25 PERCENT OF THEIR TOTAL WEIGHT ALLOWANCE AUTHORIZED UNDER JOINT TRAVEL REGULATIONS FOR PERMANENT CHANGE OF STATION SHIPMENTS, PLUS BAGGAGE ALLOWANCE AND THE SAME ALLOWANCE IS NOW AUTHORIZED UNDER RECENT AIR FORCE REGULATIONS. ON THE BASIS THAT SUCH AN ALLOWANCE WOULD HAVE BEEN SUFFICIENT TO COVER YOUR SHIPMENT YOU EXPRESSED THE BELIEF THAT YOUR CLAIM SHOULD BE ALLOWED. AS A FURTHER BASIS FOR ALLOWANCE OF YOUR CLAIM YOU SAID THAT, ALTHOUGH YOU DID NOT DECLARE YOUR PROFESSIONAL BOOKS AT THE TIME OF YOUR APPLICATION, THESE BOOKS, TOTALING 140 POUNDS, WERE IDENTIFIED AS SUCH ON THE INVENTORY SHEET. THE AIR FORCE, HOWEVER, HAS NOT ACCEPTED YOUR STATEMENT AS TO THE WEIGHT OF PROFESSIONAL BOOKS.

THE CLAIM WAS TRANSMITTED TO OUR OFFICE AS A DOUBTFUL CLAIM AND BY SETTLEMENT DATED NOVEMBER 28, 1967, OF OUR CLAIMS DIVISION, IT WAS DISALLOWED FOR THE REASONS STATED.

IN YOUR LETTER DATED DECEMBER 13, 1967, YOU EXPRESS THE BELIEF THAT IT WAS THE INTENT OF CONGRESS IN A STATUTE PASSED LATE IN 1966, THAT THE WEIGHT ALLOWANCE FOR THE AIR FORCE SHOULD BE COMPUTED ON 25 PERCENT OF THE TOTAL WEIGHT ALLOWANCE AUTHORIZED BY THE JOINT TRAVEL REGULATIONS. YOU CONTEND THAT SINCE THAT LAW WAS IN EFFECT AT THE TIME OF YOUR SHIPMENT YOU SHOULD NOT BE PENALIZED FOR THE DELAY CAUSED BY ADMINISTRATIVE PROCESSING IN CHANGING AIR FORCE REGULATIONS. YOU CONTEND FURTHER THAT SINCE THE DEPARTMENT OF THE ARMY WAS RESPONSIBLE FOR ALL MATTERS PERTAINING TO HOUSING IN ZWEIBRUCKEN, ARMY REGULATIONS RATHER THAN AIR FORCE REGULATIONS SHOULD APPLY. IF YOUR CLAIM IS FINALLY DENIED, YOU ASK THAT THE ORIGINAL FILE BE RETURNED FOR YOUR USE.

YOUR REFERENCE TO A LAW ENACTED BY CONGRESS IN 1966 IS NOT CLEAR. ASIDE FROM THE PROVISIONS OF SECTION 615 OF THE DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 1967, APPROVED OCTOBER 15, 1966, 80 STAT. 994, AUTHORIZING THE MOVEMENT AT GOVERNMENT EXPENSE OF 13,500 POUNDS OF HOUSEHOLD EFFECTS, WE ARE NOT AWARE OF ANY CHANGE EFFECTED AT THAT TIME IN THE HOUSEHOLD EFFECTS SHIPPING ENTITLEMENTS OF MEMBERS OF THE UNIFORMED SERVICE. SECTION 615 SIMPLY INCREASED THE WEIGHT ALLOWANCE CEILING FROM 11,000 POUNDS TO 13,500 POUNDS AND HAS NO APPLICATION TO THIS CLAIM.

SINCE 1955 THE DEPARTMENT OF DEFENSE APPROPRIATION ACTS HAVE AUTHORIZED THE USE OF APPROPRIATED FUNDS TO PROVIDE FURNISHINGS, WITHOUT CHARGE, IN OTHER THAN PUBLIC QUARTERS OCCUPIED BY MILITARY OR CIVILIAN PERSONNEL OF THE DEPARTMENT OF DEFENSE OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA, UPON A DETERMINATION, UNDER REGULATIONS APPROVED BY THE SECRETARY OF DEFENSE, THAT SUCH ACTION IS ADVANTAGEOUS TO THE GOVERNMENT.

REGULATIONS PROMULGATED PURSUANT TO SUCH PROVISIONS ARE CONTAINED IN DEPARTMENT OF DEFENSE DIRECTIVE 7140.2 (FORMERLY 7000.2) WHICH HAVE BEEN IN EFFECT SINCE SEPTEMBER 13, 1956. THE DIRECTIVE STATES THAT ITS PROVISIONS ARE APPLICABLE TO THE MILITARY DEPARTMENTS ON A PERMISSIVE BASIS. IT REQUESTS THAT DEPARTMENTS IMPLEMENTING THE DIRECTIVE MAKE PROVISION FOR RESTRICTION OR LIMITATION OF HOUSEHOLD EFFECTS SHIPPED TO AREAS WHERE APPLICABLE BY PERSONNEL OF THOSE DEPARTMENTS TO A MAXIMUM OF 2,000 POUNDS OR 25 PERCENT OF THE MAXIMUM WEIGHT TO WHICH CURRENTLY AUTHORIZED BY LAW, WHICHEVER IS GREATER.

SECTION 406C OF TITLE 37, U.S.C. AUTHORIZES, IN PERTINENT PART, THE TRANSPORTATION OF HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES, OR REIMBURSEMENT THEREFOR, SUBJECT TO SUCH CONDITIONS AND LIMITATIONS AS ARE PRESCRIBED BY THE SECRETARIES CONCERNED. PARAGRAPH M8253-2 OF THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO SECTION 406C RECOGNIZES THAT UNDER CERTAIN CONDITIONS, RESTRICTIONS IN THE SHIPMENT OF HOUSEHOLD EFFECTS OF MILITARY PERSONNEL ORDERED TO DUTY OVERSEAS MAY BE AUTHORIZED BY COMPETENT AUTHORITY.

IN THE FURTHERANCE OF THE POLICY STATED IN DEPARTMENT OF DEFENSE DIRECTIVE 7140.2, PARAGRAPH 5603-A OF AIR FORCE MANUAL 75-4, PROVIDED AT THE TIME HERE INVOLVED THAT FOR SHIPMENT TO, FROM AND BETWEEN THE AREAS LISTED IN PARAGRAPH 5604 (WHICH INCLUDES AREAS IN GERMANY) HOUSEHOLD GOODS FOR AIR FORCE PERSONNEL WOULD BE LIMITED TO 2,000 POUNDS NET WEIGHT (EXCLUSIVE OF PROFESSIONAL BOOKS, PAPERS AND EQUIPMENT WHEN AUTHORIZED, AND UNACCOMPANIED BAGGAGE). PARAGRAPH 5605 B OF THE MANUAL PROVIDES THAT THE APPLICABLE MAJOR COMMAND MAY APPROVE EXCEPTIONS TO THE 2,000 POUND WEIGHT LIMITATION IN CERTAIN CIRCUMSTANCES, WHICH INCLUDE INSTANCES WHEN MORE THAN 2,000 POUNDS HAD BEEN SHIPPED INTO A RESTRICTED AREA THROUGH NO FAULT OF THE MEMBER, AND WHEN THE OVERSEA MAJOR COMMAND DETERMINES THAT THERE ARE INSUFFICIENT GOVERNMENT-OWNED HOUSEHOLD FURNISHINGS AVAILABLE TO ADEQUATELY FURNISH QUARTERS. THESE PROVISIONS CONSTITUTED YOUR ONLY SHIPPING ENTITLEMENTS, NOTWITHSTANDING OTHER ENTITLEMENTS WERE AUTHORIZED FOR ARMY MEMBERS.

THE SUBSEQUENT CHANGE IN AIR FORCE SHIPPING ENTITLEMENTS TO MAKE THEM AGREE WITH THOSE AUTHORIZED FOR THE ARMY MAY NOT BE APPLIED RETROACTIVELY TO EITHER INCREASE OR DECREASE YOUR RIGHTS. SEE 32 COMP. GEN. 315; 33 ID. 504; AND 40 ID. 242. ACCORDINGLY, THE WEIGHT LIMITATION AUTHORIZED ON YOUR SHIPMENT UPON THE EFFECTIVE DATE OF ORDERS DATED DECEMBER 27, 1966, MUST BE DETERMINED ON THE BASIS OF THE RESTRICTIONS THAT WERE IN EFFECT PRIOR TO FEBRUARY 28, 1967.

AS STATED ABOVE, THE APPLICABLE REGULATIONS PERMIT AN EXCEPTION TO THE 2,000 POUND WEIGHT LIMITATION ON SHIPMENT FROM A RESTRICTED AREA TO THE UNITED STATES, IN CERTAIN CASES WHEN MORE THAN 2,000 POUNDS WERE SHIPPED TO THE RESTRICTED AREA THROUGH NO FAULT OF THE MEMBER. FOR THE PURPOSE OF DETERMINING THE APPLICATION OF THIS EXCEPTION TO YOUR CASE WE HAVE NOW OBTAINED A COPY OF THE BILL OF LADING COVERING THE SHIPMENT OF YOUR HOUSEHOLD EFFECTS TO GERMANY. THE DELAY IN DISPOSING OF YOUR CASE WAS CAUSED BY THE DIFFICULTY EXPERIENCED IN OBTAINING THIS DOCUMENT.

THE COPY OF THE BILL OF LADING SHOWS THAT HOUSEHOLD EFFECTS TOTALING 2,400 POUNDS WERE SHIPPED TO YOUR STATION IN GERMANY AT GOVERNMENT EXPENSE. WHILE THIS ASPECT OF YOUR CLAIM DOES NOT APPEAR TO HAVE BEEN CONSIDERED BY THE AIR FORCE, NOTHING IN THE RECORD REQUIRES A CONCLUSION THAT YOU WOULD NOT HAVE BEEN AFFORDED THE BENEFIT OF THE EXCEPTION BY THE AIR FORCE. ACCORDINGLY, WE ARE INSTRUCTING OUR CLAIMS DIVISION TO ALLOW YOU THAT PORTION OF THE COST OF THE SHIPMENT BY COMMERCIAL MEANS WHICH REPRESENTS THE COST OF TRANSPORTING 400 POUNDS.

WITH RESPECT TO YOUR STATEMENT THAT NO DEDUCTIONS WERE MADE FOR 140 POUNDS OF PROFESSIONAL BOOKS INCLUDED IN THE SHIPMENT OF YOUR EFFECTS, THE RECORD SHOWS THAT ON YOUR APPLICATION FOR SHIPMENT OF YOUR HOUSEHOLD GOODS TO GERMANY DATED JUNE 17, 1964, A STATEMENT WAS MADE THAT NO PROFESSIONAL BOOKS WERE INCLUDED, ALTHOUGH THE HOUSEHOLD GOODS INVENTORY LISTS SEVERAL BOOKS WITHOUT FURTHER DESCRIPTION, AS PART OF THE SHIPMENT. SINCE YOU STATED THAT YOU DID NOT DECLARE YOUR PROFESSIONAL BOOKS AT THE TIME OF YOUR APPLICATION FOR SHIPMENT OF YOUR EFFECTS FROM GERMANY, NO DETERMINATION CAN BE MADE AS TO WHETHER IN FACT ANY PROFESSIONAL BOOKS WERE INCLUDED IN THE GOODS SHIPPED OR THE WEIGHT OF SUCH PROFESSIONAL BOOKS. IN THE ABSENCE OF EVIDENCE THAT SUCH BOOKS WERE SHIPPED AND IF SHIPPED WERE NOT CONSIDERED IN COMPUTING THE 3,700 POUNDS ALLOWANCE TO WHICH YOU WERE ENTITLED, THER IS NO BASIS UPON WHICH AN ADJUSTMENT MAY BE MADE FOR SUCH BOOKS.

CONCERNING YOUR REQUEST FOR THE RETURN OF THE ORIGINAL PAPERS IN YOUR FILE, YOU ARE ADVISED THAT THE PAPERS ARE THE BASIS UPON WHICH OUR ACTION WAS TAKEN AND THUS HAVE BECOME A PART OF THE PERMANENT RECORDS OF OUR OFFICE AND MAY NOT BE RETURNED. 8GAO MANUAL 2010.10. HOWEVER, WE ARE RETURNING COPIES OF YOUR STATEMENTS, CERTIFICATE AND LETTERS FOR YOUR RECORDS.