B-207761-OM, JAN 17, 1983

B-207761-OM, JAN 17, 1983

PRECIS-UNAVAILABLE

THE COMPTROLLER GENERAL:

WE ARE FORWARDING THE CLAIM OF MAJOR DAVID M. JACOBS, 414 VANDERBERG STREET, KEESLER AIR FORCE BASE, MISSISSIPPI 39534. MAJOR JACOBS, AN AIR FORCE MEMBER, IS CLAIMING AN INCENTIVE PAYMENT FOR A DO-IT-YOURSELF (DITY) MOVE PERFORMED IN JANUARY, 1981, FROM HARAHAN, LOUISIANA, TO KEESLER AIR FORCE BASE, MISSISSIPPI.

THE RECORD SHOWS THAT THE NAVY SUPPORT ACTIVITY AT NEW ORLEANS, LOUISIANA IS RESPONSIBLE FOR SHIPMENT OF HOUSEHOLD GOODS FOR ALL MILITARY MEMBERS IN THEIR AREA. MAJOR JACOBS RECEIVED HIS PRE-MOVE BRIEFING FROM NAVY PERSONNEL WHO DIRECTED HIM TO WEIGH HIS GOODS AT A SCALE IN SLIDELL, LOUISIANA. NAVSUPINST 4050.62D, SUP 053, I-K REQUIRES ONLY THAT CERTIFIED WEIGHT TICKETS BE OBTAINED. AIR FORCE REGULATION 75-33, 3-2E(1) SPECIFICALLY PROHIBITS THE USE OF AXLE WEIGHTS. 1 JTR M8401 PROVIDES ONLY THAT THE MEMBER ESTABLISH THE NET WEIGHT OF HIS HOUSEHOLD GOODS WITH CERTIFIED WEIGHT CERTIFICATES FROM A PUBLIC WEIGHMASTER OR GOVERNMENT SCALES. MAJOR JACOBS COMPLIED WITH THE REQUIREMENT TO ESTABLISH HIS NET WEIGHT WITH CERTIFIED WEIGHT TICKETS; HOWEVER, THE SCALES HE WAS DIRECTED TO USE MEASURED AXLE WEIGHTS.

THIS OFFICE HELD IN B-191016, APRIL 20, 1979, THAT THE REGULATIONS OF THE SERVICES, ISSUED PURSUANT TO THE AUTHORITY DELEGATED IN 1 JTR, M8400, LEGALLY MAY REQUIRE WEIGHT CERTIFICATES FROM CERTIFIED SCALES SHOWING BOTH THE EMPTY AND LOADED WEIGHT OF THE VEHICLE BE FURNISHED AS A CONDITION TO A MEMBER'S QUALIFYING FOR AN INCENTIVE PAYMENT. THE PROHIBITION AGAINST AXLE WEIGHTS, SEEN ONLY IN THE AIR FORCE REGULATIONS, APPEARS TO LIMIT A MEMBER USING THE DITY METHOD FURTHER THAN THE CONTROLLING REGULATION.

WE HAVE BEEN ADVISED THAT MILITARY MEMBERS, REGARDLESS OF BRANCH OF SERVICE, ARE COUNSELED BY THE SERVICE WHICH HAS JURISDICTION OVER THE AREA IN WHICH THEY RESIDE. THIS OFTEN RESULTS IN MEMBERS BEING COUNSELED UNDER ONE SERVICE'S REGULATION AND PAID IN ACCORDANCE WITH ANOTHER'S.

IN THE INSTANT CASE, IT WORKED TO DENY MAJOR JACOBS PAYMENT FOR THE INCENTIVE ALLOWANCE EVEN THOUGH HE FOLLOWED HIS INSTRUCTIONS. THE AIR FORCE HAS RECOMMENDED FAVORABLE CONSIDERATION OF THIS CLAIM OR, ABSENT AN AUTHORIZATION FOR PAYMENT, CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT.

ACCORDINGLY, IN LIGHT OF THE CONFLICT PRESENTED BY THE NAVY AND AIR FORCE REGULATIONS THE MATTER IS SUBMITTED FOR YOUR CONSIDERATION AND INSTRUCTIONS. THE ADJUDICATOR HANDLING THIS CLAIM IS MS. THERESA ROBERSON WHO MAY BE REACHED ON EXTENSION 53218.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858)

RETURNED. PARAGRAPH M8401 OF VOLUME 1, JOINT TRAVEL REGULATIONS (1 JTR), STATES THAT THE NET WEIGHT OF HOUSEHOLD GOODS WILL BE ESTABLISHED THROUGH USE OF CERTIFIED WEIGHT CERTIFICATES FROM A PUBLIC WEIGHTMASTER OR GOVERNMENT SCALES.

PARAGRAPH M8400 ALSO PROVIDES IN PART THAT EACH OF THE UNIFORMED SERVICES WILL ISSUE SUCH SUPPLEMENTAL IMPLEMENTING REGULATIONS AS ARE CONSIDERED TO BE NECESSARY TO JUDICIOUSLY ADMINISTER THE PROGRAM. THE AIR FORCE HAS CHOSEN TO PROHIBIT THE USE OF AXLE WEIGHTS IN ESTABLISHING THE NET WEIGHT. PRESUMABLY THIS RESTRICTION IS BASED ON THE VIEW THAT AXLE WEIGHTS DO NOT PROVIDE AS HIGH A DEGREE OF ACCURACY AS OTHER METHODS. WHETHER OR NOT THIS RESTRICTION EXCEEDS THE DELEGATION OF AUTHORITY UNDER PARAGRAPH M8400, NEED NOT BE ANSWERED AT THIS TIME, SINCE IT IS OUR VIEW THE MEMBER'S CLAIM MAY BE ALLOWED ON THE BASIS OF THE EVIDENCE SUBMITTED AND THE CIRCUMSTANCES OF THIS CASE.

ORDINARILY A MEMBER OF A PARTICULAR UNIFORMED SERVICE IS REQUIRED TO COMPLY WITH THE REGULATIONS OF HIS SERVICE. HOWEVER, WHERE A MEMBER OF ONE SERVICE IS PLACED UNDER THE JURISDICTION OF ANOTHER SERVICE FOR A PARTICULAR PURPOSE, AS WAS THE CASE, IT IS OUR VIEW THAT DIFFERENCES IN THE REGULATIONS OF THE TWO SERVICES INVOLVED SHOULD BE RESOLVED BY USING THE REGULATION OF THE SERVICE WHICH HAS JURISDICTION OVER THE PARTICULAR CIRCUMSTANCE.

THE RECORD INDICATES THAT THE MEMBER COMPLIED WITH THE REQUIREMENTS IN CHAPTER 8, PART H OF VOLUME 1, JTR, AND HAS COMPLIED WITH NAVY REGULATIONS AND FOLLOWED THE OFFICIAL COUNSELING REQUIRED BY 1 JTR M8400 ALTHOUGH NOT IN CONFORMANCE WITH AIR FORCE REGULATIONS. THEREFORE, UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE, THE MEMBER SHOULD BE ENTITLED TO THE PRESCRIBED BENEFITS AS A RESULT OF THE DO-IT YOURSELF MOVE, SINCE HE FOLLOWED THE DIRECTIONS OF THE NAVY SUPPORT ACTIVITY.

ACCORDINGLY, SETTLEMENT MAY ISSUE IN FAVOR OF MAJOR JACOBS, IF OTHERWISE CORRECT.