B-204780.OM, FEB 2, 1982

B-204780.OM, FEB 2, 1982

DIGEST: AIR FORCE MEMBER UNDERSTOOD THAT HER HOUSEHOLD EFFECTS WOULD BE TRANSPORTED BY SURFACE TRANSPORTATION WHEN SHE MADE ARRANGEMENTS WITH THE TRANSPORTATION OFFICE TO SHIP THEM TO HER NEW DUTY STATION. HOWEVER, HIGHER COST AIR TRANSPORTATION WAS USED. REGARDLESS OF THE MISUNDERSTANDING, THE MEMBER IS LIABLE FOR THE FULL COST OF SHIPPING THE EXCESS WEIGHT PORTION OF HER EFFECTS BY AIR.

THE COMPTROLLER GENERAL:

HEREWITH IS THE FILE CONCERNING AIRMAN BETTY E. BUTLER, A MEMBER OF THE AIR FORCE. A QUESTION HAS ARISEN CONCERNING HER LIABILITY FOR THE TOTAL AMOUNT OF THE EXCESS COSTS OF SHIPPING HER PERSONAL EFFECTS INCIDENT TO A PERMANENT CHANGE OF STATION. AN ADDED PROBLEM IN THIS PARTICULAR CASE IS THE PAUCITY OF DOCUMENTATION; HOWEVER, WE BELIEVE THE AVAILABLE DOCUMENTS RAISE SUCH DOUBT AS TO MERIT CONSIDERATION.

THE RECORD SHOWS THAT WHEN AIRMAN BUTLER WAS TRANSFERRED ON PERMANENT CHANGE OF STATION ORDERS FROM CASTLE AFB, CALIFORNIA, TO RAF BENTWATERS, ENGLAND, SHE WAS ENTITLED TO SHIP 225 POUNDS GROSS OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE. INCIDENT TO THE ISSUANCE OF THE MEMBER'S ORDERS, SHE WAS COUNSELED CONCERNING THE SHIPMENT OF HER PERSONAL EFFECTS. AT THAT TIME THE MEMBER'S REQUIRED PICK-UP DATE WAS APPARENTLY ESTABLISHED AS JULY 26, 1976, AND HER REQUIRED DELIVERY DATE AS OCTOBER 4, 1976. THIS TIME PERIOD ALLOWED FOR A NORMAL SURFACE TRANSPORT, AND DUE TO THIS SITUATION, ACCORDING TO THE MEMBER, THE TRANSPORTATION OFFICE INFORMED HER THAT SURFACE TRANSPORT WOULD BE USED.

SUBSEQUENTLY, THE MEMBER'S PROPERTY WAS SHIPPED UNDER GOVERNMENT BILL OF LADING M0-750,651 DATED JULY 30, 1976, VIA AIRLIFT, RATHER THAN VIA SURFACE TRANSPORT, THE CHEAPER METHOD. WHEN THE PROPERTY WAS WEIGHED, THE GROSS WEIGHT WAS SHOWN TO BE 1,970 POUNDS. THE AIR FORCE THEN DETERMINED THAT THE TOTAL COST OF SHIPPING THIS PROPERTY WAS $2,857.21. ON THE BASIS OF THIS INFORMATION, THEY DETERMINED THAT THE MEMBER HAD EXCEEDED HER WEIGHT ALLOWANCE BY 1,730 POUNDS AND THAT THE PRO-RATA COST OF SHIPPING THIS EXCESS WEIGHT WAS $2,530.88. FURTHERMORE, THEY DETERMINED THAT THE MEMBER IS LIABLE FOR THIS AMOUNT.

THE MEMBER HAS DISAGREED WITH THESE DETERMINATIONS. IN HER REBUTTAL, AIRMAN BUTLER STATED THAT SHE NEVER REQUESTED SHIPMENT VIA AN EXPEDITED MODE. FURTHERMORE, SHE STATED THAT BECAUSE THE PROPERTY WAS SHIPPED VIA AIRLIFT RATHER THAN VIA SURFACE TRANSPORT, THE PROPERTY ARRIVED TOO EARLY. AS A RESULT, THE MEMBER INCURRED UNEXPECTED STORAGE EXPENSES.

UNDER PARAGRAPH M8001 OF THE JOINT TRAVEL REGULATIONS, THE TMO RESPONSIBLE FOR SHIPPING A MEMBER'S PROPERTY IS AUTHORIZED TO SELECT THE TRANSPORTATION MODE WHICH WILL RESULT IN THE LOWEST OVERALL COST TO THE GOVERNMENT, PROVIDED THE CHEAPEST MODE WILL MEET THE REQUIRED NEEDS OF THE MEMBER. IF THE CHEAPEST MODE WILL NOT MEET THOSE NEEDS, THE NEXT CHEAPEST MODE IS TO BE UTILIZED. AIRLIFT TRANSPORT IS NORMALLY NOT AUTHORIZED UNLESS APPROVED UNDER THE REGULATIONS OF THE SERVICE CONCERNED. IN THE CASE OF AIR FORCE MEMBERS, THE RELEVANT REGULATIONS CAN BE FOUND IN AIR FORCE REGULATION 75-25, PARAGRAPH 1-1B(2) AND PARAGRAPH 11-11, WHICH PROVIDE THAT SURFACE MODE TRANSPORT WILL BE USED UNDER ORDINARY CIRCUMSTANCES AND THAT AIRLIFT TRANSPORT TO OTHER THAN HARDLIFT AREAS IS ORDINARILY PROHIBITED.

AT THE TIME IN QUESTION RAF BENTWATERS WAS NOT CLASSIFIED AS A HARDLIFT AREA. FURTHERMORE, IT APPEARS FROM THE FILE BEFORE US THAT AIRLIFT TRANSPORT WAS NOT THE CHEAPEST TRANSPORTATION MODE AVAILABLE TO MEET THE REQUIRED NEEDS OF THE MEMBER. THEREFORE, IT APPEARS TO US THAT THE TMO'S DECISION TO SEND AIRMAN BUTLER'S PROPERTY VIA AIRLIFT WAS AN ERRONEOUS ACTION.

PARAGRAPH M8012 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT WHEN A MEMBER'S PROPERTY IS IMPROPERLY SHIPPED OR OTHERWISE UNAVOIDABLY SEPARATED FROM THE MEMBER, THROUGH NO FAULT ON THE MEMBER'S PART, THE PROPERTY MAY BE FORWARDED TO THE PROPER DESTINATION AT GOVERNMENT EXPENSE. OUR OFFICE HAS INTERPRETED THIS REGULATION BROADLY. FOR EXAMPLE, IN THE MATTER OF TSGT JOSEPH LIBURDI, B-162663, DECEMBER 29, 1967, WE HELD THAT THE AIR FORCE'S SEPARATE SHIPMENT OF THE MEMBER'S HOUSEHOLD GOODS AND THE CONTINUED LINE HAUL OF THE MEMBER'S HOUSE TRAILER CONSTITUTED AN IMPROPER SHIPMENT, BECAUSE THE MEMBER HAD SPECIFICALLY REQUESTED RAIL TRANSPORT FOR THE TRAILER WITH THE HOUSEHOLD GOODS INSIDE. THEREFORE, UNDER THE CITED REGULATION, WE HELD THAT THE MEMBER WAS LIABLE ONLY FOR THE EXCESS CONSTRUCTIVE COSTS FOR THE ACTUAL SERVICES REQUESTED.

HOWEVER, THE PRESENT CASE DIFFERS FROM PREVIOUS CASES CONSIDERED UNDER JTR M8012 IN THAT IT INVOLVES EXCESS WEIGHT. PARAGRAPH M8012 SPECIFICALLY STATES THAT PROPERTY WITHIN PRESCRIBED WEIGHT ALLOWANCES MAY BE SHIPPED TO THE PROPER DESTINATION AT GOVERNMENT EXPENSE WHEN IT HAS BEEN IMPROPERLY SHIPPED, BUT NO MENTION IS MADE OF ANY GOVERNMENT LIABILITY FOR THE IMPROPER SHIPMENT OF PROPERTY IN EXCESS OF THE WEIGHT ALLOWANCE. ALSO, PARAGRAPH M8007-2 OF THE JTR PROVIDES THAT THE GOVERNMENT'S MAXIMUM LIABILITY IS THE THROUGH SHIPMENT OF A MEMBER'S WEIGHT ALLOWANCE. IF THE SHIPMENT'S WEIGHT EXCEEDS THAT ALLOWANCE, THE MEMBER IS LIABLE FOR ALL TRANSPORTATION COSTS ATTRIBUTABLE TO THE EXCESS WEIGHT.

IN VIEW OF THESE LIMITATIONS, IT WOULD APPEAR THAT THE AIR FORCE'S DETERMINATIONS IN THE PRESENT MATTER WERE CORRECT. IN THIS REGARD, WE POINT IN PARTICULAR TO OUR HOLDINGS IN THOSE CASES WHERE A MEMBER'S ORDERS HAVE BEEN CHANGED AFTER HIS PROPERTY HAS BEEN SHIPPED. IN THOSE CASES, WE HAVE HELD THAT THE MEMBER IS LIABLE FOR THE COSTS OF SHIPPING THE EXCESS WEIGHT TO THE FIRST DESTINATION, AS WELL AS THE DESTINATION CITED IN THE AMENDED ORDERS. SEE 49 COMP.GEN. 255.

HOWEVER, IN THOSE CASES, THE TMO'S, WHEN THEY SHIPPED THE PROPERTY, WERE ACTING UPON PROPER ORDERS AND IN COMPLIANCE WITH REGULATIONS. THE ORIGINAL ORDERS WERE SIMPLY CHANGED. IN THE PRESENT CASE, IT APPEARS THAT THE TMO DID NOT ACT IN ACCORDANCE WITH EXISTING REGULATIONS AT THE TIME THE PROPERTY WAS SHIPPED. THUS, WE ASK THE FOLLOWING QUESTIONS:

1. CAN A MEMBER BE HELD LIABLE FOR THE TOTAL ACTUAL COSTS OF SHIPPING EXCESS WEIGHT WHEN THE PROPERTY HAS NOT BEEN SHIPPED ACCORDING TO REGULATIONS?

2. OR, IS THE MEMBER LIABLE ONLY FOR THE CONSTRUCTIVE COSTS OF SHIPPING THE EXCESS WEIGHT VIA THE MODE REGULATIONS AUTHORIZE?

IN VIEW OF THE QUESTIONS INVOLVED IN THIS CASE, WE SUBMIT THE MATTER TO YOU FOR REVIEW AND CONSIDERATION.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858)

RETURNED. INCIDENT TO A PERMANENT CHANGE OF STATION, THE MEMBER WAS ADVISED THAT 225 POUNDS OF HER HOUSEHOLD EFFECTS WOULD BE SHIPPED AT GOVERNMENT EXPENSE BY SURFACE TRANSPORTATION FROM CASTLE AIR FORCE BASE, CALIFORNIA, TO HER NEW DUTY LOCATION IN BENTWATERS, ENGLAND. SUBSEQUENTLY, THE TRAFFIC MANAGEMENT OFFICE ORDERED SHIPMENT BY THE MORE EXPENSIVE AIRLIFT MODE. SINCE THE MEMBER'S HOUSEHOLD EFFECTS EXCEEDED THE PRESCRIBED WEIGHT ALLOWANCE BY 1,730 POUNDS, THE AIR FORCE DETERMINED THAT THE MEMBER WAS LIABLE FOR EXCESS TRANSPORTATION CHARGES TOTALING $2,530.88.

WHILE IT IS NOT CLEAR FROM THE RECORD WHY THE DETERMINATION TO USE AIR TRANSPORTATION WAS MADE, IT APPEARS THAT DETERMINATION MAY NOT HAVE BEEN IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH M8001, 1 JTR, AND PARAGRAPHS 1-1(B) AND 11-11, AFR 75-25. UNDER THOSE REGULATIONS HOUSEHOLD GOODS ARE TO BE TRANSPORTED BY SURFACE TRANSPORTATION, WITH SOME EXCEPTIONS WHICH DO NOT APPEAR TO APPLY TO THIS CASE. REGARDLESS OF THE POSSIBLE FAILURE TO FOLLOW THESE PROCEDURAL REGULATIONS, THE LIABILITY OF THE GOVERNMENT IS LIMITED TO THAT PROVIDED BY THE LAW AND REGULATIONS. COMPARE B-190687, MARCH 22, 1978. PARAGRAPH M8007-2, 1 JTR, SPECIFICALLY 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 AND THAT THE MEMBER WILL BEAR ALL TRANSPORTATION COSTS FOR WEIGHT IN EXCESS OF THE MAXIMUM ALLOWANCE. THAT PARAGRAPH ALSO MAKES SPECIFIC PROVISIONS FOR ALLOCATING THE EXCESS COSTS ON A PRO RATA BASIS WHICH THE AIR FORCE WAS BOUND TO FOLLOW. COMPARE B-1980336, JUNE 9, 1981.

AS NOTED IN YOUR SUBMISSION, PARAGRAPH M8012, 1 JTR, STATES THAT HOUSEHOLD GOODS "WITHIN PRESCRIBED WEIGHT ALLOWANCE" WHICH HAVE BEEN IMPROPERLY SHIPPED OR UNAVOIDABLY SEPARATED FROM THE MEMBER, THROUGH NO FAULT OF HIS OWN, MAY BE FORWARDED TO THE PROPER DESTINATION AT GOVERNMENT EXPENSE. BASED ON THIS REGULATION, WE HELD IN B-162663, DECEMBER 29, 1967, THAT THE GOVERNMENT IS LIABLE FOR TRANSPORTATION COSTS WHERE AUTHORITIES IMPROPERLY DISREGARDED A MEMBER'S INSTRUCTIONS CONCERNING MODE OF SHIPMENT. ALTHOUGH WE AGREE THAT OUR HOLDING IN B-162633 REFLECTS A DETERMINATION TO LIBERALLY CONSTRUE THE PROVISIONS OF PARAGRAPH M8012, 1 JTR, THE EXPRESS LANGUAGE OF THAT REGULATION PRECLUDES ITS APPLICATION TO CASES INVOLVING SHIPMENT OF WEIGHTS IN EXCESS OF THE MAXIMUM ALLOWANCE.

WHILE IT IS UNFORTUNATE THAT THE MODE OF TRANSPORTATION SELECTED TO SHIP AIRMAN BUTLER'S GOODS WAS MORE EXPENSIVE THAN SHE EXPECTED, THERE WAS NO COST TO HER FOR SHIPMENT BY AIR OF HER AUTHORIZED WEIGHT ALLOWANCE (225 POUNDS). HOWEVER, UNDER THE REGULATIONS SHE IS RESPONSIBLE FOR THE COST OF SHIPPING THE EXCESS WEIGHT. COMPARE B-199111, MARCH 17, 1981, AND B-197948, DECEMBER 29, 1980.

WE NOTE FROM INFORMATION IN THE FILE THAT AIRMAN BUTLER ALSO REQUESTED REMISSION OF HER DEBT. THAT, OF COURSE, IS A MATTER FOR THE AIR FORCE TO CONSIDER UNDER 10 U.S.C. SEC. 9837(D). SINCE ACTION UNDER THAT STATUTE MUST BE TAKEN WHILE THE MEMBER IS STILL IN THE SERVICE, IN YOUR CORRESPONDENCE TO THE AIR FORCE IN THIS CASE, IT WOULD BE APPROPRIATE TO REMIND THEM OF THE REQUEST FOR REMISSION UNDER 10 U.S.C. SEC. 9837(D).