B-164136, SEPT. 5, 1968

B-164136, SEPT. 5, 1968

TO COMMANDER F. W. BUSTARD:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 11, 1968, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF DECEMBER 19, 1967, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE AMOUNT WITHHELD FROM YOUR PAY FOR STORAGE CHARGES ON THE EXCESS WEIGHT OF HOUSEHOLD EFFECTS SHIPPED TO YOUR RESIDENCE AT CHINA LAKE, CALIFORNIA, INCIDENT TO CHANGE OF STATION ORDERS DATED AUGUST 10, 1965.

YOUR APPLICATION FOR SHIPMENT OF YOUR HOUSEHOLD EFFECTS, DATED DECEMBER 6, 1965, REQUESTED THAT APPROXIMATELY 14,000 POUNDS OF HOUSEHOLD GOODS, WHICH INCLUDED 2,500 POUNDS OF PROFESSIONAL BOOKS, BE SHIPPED FROM BUENA PARK, CALIFORNIA, TO CHINA LAKE, CALIFORNIA. INSTRUCTIONS ON THE APPLICATION PROVIDED THAT PART OF THE EFFECTS WERE TO BE DELIVERED TO A RESIDENCE AT CHINA LAKE, AND PART TO STORAGE AT DESTINATION. THE APPLICATION CONTAINED A STATEMENT THAT YOU WOULD PAY FOR ALL EXCESS COST OCCASIONED BY THE SHIPMENT.

THE BILL OF LADING DATED DECEMBER 8, 1965, STATED THAT STORAGE IN TRANSIT AT DESTINATION WAS AUTHORIZED WITH PARTIAL DELIVERY TO BE MADE TO A RESIDENCE IN CHINA LAKE. SHIPMENT WAS MADE DECEMBER 14, 1965, TOTALING 18,240 POUNDS, OF WHICH 2,500 POUNDS WERE PROFESSIONAL BOOKS. THE BILL OF LADING SHOWS FURTHER THAT ON DECEMBER 15, 1965, 5,740 POUNDS WERE DELIVERED TO THE RESIDENCE AND 12,500 POUNDS TO THE STORAGE FACILITY.

FORM DD 139, ADJUSTMENT AUTHORIZATION, SHOWS THE ALLOCATION OF EXCESS COST FOR TWO MONTHS' STORAGE, HANDLING AND DRAYAGE OF EXCESS WEIGHT OF 4,161 POUNDS WAS $94.10, WHICH SUM WAS INCLUDED IN THE TOTAL EXCESS COST OF $388.45, CHARGEABLE FOR THE SHIPMENT, WHICH APPARENTLY WAS CHECKED AGAINST YOUR PAY ACCOUNT.

IN YOUR LETTER OF FEBRUARY 23, 1967, TO THE U.S. NAVY FINANCE CENTER, WASHINGTON, D.C., YOU DID NOT QUESTION THAT AN EXCESS WEIGHT OF 4,161 POUNDS WAS INVOLVED IN THE HOUSEHOLD EFFECTS SHIPPED. HOWEVER, YOU OBJECTED TO THE CHARGE AGAINST YOU OF $94.10 AS ATTRIBUTABLE TO THE EXCESS COST FOR STORAGE OF YOUR EFFECTS. IN JUSTIFICATION OF YOUR CLAIM FOR REFUND OF THAT ITEM, YOU STATED THAT UPON ARRIVAL AT YOUR NEW DUTY STATION YOU OCCUPIED TEMPORARY QUARTERS FOR TWO MONTHS BECAUSE THE PERMANENT QUARTERS ASSIGNED TO YOU HAD NOT BEEN VACATED. YOU STATED THAT THIS FACTOR, WHICH MADE STORAGE NECESSARY, WAS DUE TO NO FAULT OF YOURS SINCE THE PERMANENT QUARTERS WERE OCCUPIED BY CIVILIANS WHOSE PLANS WERE CHANGED DUE TO OFFICIAL BUSINESS AND THAT YOU SHOULD NOT SUFFER BECAUSE OF IT. YOUR CLAIM FOR REFUND OF $94.10 WAS DENIED BY THE FINANCE CENTER FOR THE REASON THAT UNDER APPLICABLE REGULATIONS EXCESS COSTS ARE COMPUTED ON THE BASIS THAT THE MEMBER AND GOVERNMENT WILL SHARE, ON A PRORATED BASIS, THE ENTIRE COST OF THE SHIPMENT AND ASSOCIATED SERVICES.

YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT DATED DECEMBER 19, 1967, FOR THE REASONS STATED. IN YOUR LETTER REQUESTING RECONSIDERATION OF YOUR CLAIM, YOU CONTENDED THAT SINCE YOU RETAINED A PART OF THE HOUSEHOLD GOODS IN THE TEMPORARY QUARTERS, THE WEIGHT OF THE HOUSEHOLD GOODS THAT WERE PLACED IN STORAGE WAS BELOW THE MAXIMUM WEIGHT ALLOWED FOR YOUR RANK AND THEREFORE YOU WERE JUSTIFIED IN YOUR CLAIM FOR REFUND OF THE AMOUNT COLLECTED, APPARENTLY IN THE BELIEF THAT IN THOSE CIRCUMSTANCES NO EXCESS WEIGHT WAS ATTRIBUTABLE TO THE GOODS IN STORAGE.

SECTION 406 (B) OF TITLE 37, U.S.C. PROVIDES IN PERTINENT PART THAT IN CONNECTION WITH A CHANGE OF PERMANENT STATION, A MEMBER IS ENTITLED TO TRANSPORTATION (INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE, AND UNPACKING) OF BAGGAGE AND HOUSEHOLD EFFECTS, OR REIMBURSEMENT THEREFOR, WITHIN SUCH WEIGHT ALLOWANCES PRESCRIBED BY THE SECRETARIES CONCERNED. PARAGRAPH M8100, CHAPTER 8, JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT THERETO, PROVIDES ENTITLEMENT TO TEMPORARY STORAGE IN CONNECTION WITH THE SHIPMENT OF PERMANENT CHANGE OF STATION WEIGHT ALLOWANCE OF HOUSEHOLD GOODS. SUCH STORAGE MAY ACCRUE AT PLACE OF ORIGIN, IN TRANSIT, AT DESTINATION, OR ANY COMBINATION THEREOF. PARAGRAPH M8003 OF THE REGULATIONS IN EFFECT AT THE TIME INVOLVED SETS FORTH THE MAXIMUM WEIGHT ALLOWANCES FOR MEMBERS IN ACCORDANCE WITH THEIR GRADES OR RANKS, PROVIDING A MAXIMUM PERMANENT CHANGE OF STATION WEIGHT ALLOWANCE OF 11,000 POUNDS FOR OFFICERS OF THE RANK OF COMMANDER IN THE NAVY.

PARAGRAPH M8007-2 OF THE REGULATIONS PROVIDES THAT THE GOVERNMENT'S MAXIMUM TRANSPORTATION OBLIGATION IS THE COST OF A THROUGH HOUSEHOLD GOODS MOVEMENT OF A MEMBER'S PRESCRIBED WEIGHT ALLOWANCE IN ONE LOT BETWEEN AUTHORIZED PLACES. IT PROVIDES FURTHER THAT THE MEMBER WILL BEAR ALL TRANSPORTATION COSTS ARISING FROM THE SHIPMENT FOR WEIGHTS IN EXCESS OF THE MAXIMUM ALLOWANCES PRESCRIBED IN PARAGRAPH M8003. THE PARAGRAPH PROVIDES FURTHER THAT IN DETERMINING THE COST ATTRIBUTABLE TO THE EXCESS WEIGHT, THE TOTAL COST OF TRANSPORTATION (WHICH INCLUDES STORAGE COSTS) SHALL BE PRORATED ON THE BASIS THAT THE MEMBER BEARS THE PORTION THEREOF THAT THE EXCESS NET WEIGHT BEARS TO THE TOTAL NET WEIGHT TRANSPORTED.

A MEMBER'S ENTITLEMENT IS ESSENTIALLY TO A SERVICE RATHER THAN AN ALLOWANCE WHICH CAN BE COMMUTED IN MONEY, AND UNDER THE PERTINENT STATUTE AND REGULATIONS THE AMOUNT OF SUCH SERVICES FOR EACH GRADE IS DETERMINED AND LIMITED SOLELY BY WEIGHT. AS A MATTER OF CONVENIENCE TO THE MEMBER, THE REGULATIONS PERMIT SUCH SERVICES WITH RESPECT TO HOUSEHOLD EFFECTS IN EXCESS OF THE AUTHORIZED WEIGHT ALLOWANCES UPON AGREEMENT OF THE MEMBER INVOLVED THAT HE WILL PAY THE ADDITIONAL COST INCURRED. IN THE ABSENCE OF SUCH AGREEMENT, THERE WOULD BE NO LEGAL AUTHORITY FOR MOVING HOUSEHOLD EFFECTS IN EXCESS OF THE AUTHORIZED WEIGHT ALLOWANCES. 44 COMP. GEN. 652- 654; B-151713, JULY 1, 1963. COMPARE 42 COMP. GEN. 332.

THE APPLICATION FOR THE SHIPMENT OF YOUR HOUSEHOLD EFFECTS TO CHINA LAKE, CALIFORNIA, DATED DECEMBER 6, 1965, PROVIDED FOR PARTIAL DELIVERY OF YOUR HOUSEHOLD EFFECTS TO A RESIDENCE AT YOUR NEW STATION AND TEMPORARY STORAGE FOR THE REST OF THE EFFECTS AT DESTINATION. IT WOULD THEREFORE APPEAR THAT AT THE TIME YOU FILED YOUR APPLICATION YOU WERE AWARE OF THE NECESSITY FOR STORAGE AT YOUR NEW STATION. AS INDICATED ABOVE, YOU AGREED TO PAY ALL ADDITIONAL COSTS OCCASIONED BY THE EXCESS WEIGHT OF THE SHIPMENT. UNDER APPLICABLE REGULATIONS SUCH ADDITIONAL COST IS DETERMINED ON THE PRORATED BASIS THAT THE COST ATTRIBUTABLE TO THE EXCESS WEIGHT, INCLUDING STORAGE COSTS, BEARS TO THE TOTAL COST OF THE SHIPMENT. THEREFORE, THERE IS NO BASIS UPON WHICH THAT PORTION OF THE EXCESS COST COLLECTED FROM YOUR PAY ATTRIBUTABLE TO EXCESS STORAGE CHARGES MAY BE REFUNDED.