B-235375, Dec 20, 1989
B-235375: Dec 20, 1989
The agency's determination of weight under such circumstances will be upheld by this Office. In June 1985. /1/ We find that the assessment is proper. Captain Dell was entitled to ship 13. Captain Dell initially was charged $1. In responding to Captain Dell's complaint that the weight certificates were not properly completed and otherwise appeared irregular. The certificates were invalidated. Which was applicable at the time of the move. Provided that if the actual weight of household goods is unobtainable. The weight to be charged against the member's prescribed weight allowance is to be determined by the formula of 7 pounds per cubic foot for all shipments. The Navy was unable to apply that formula.
B-235375, Dec 20, 1989
MILITARY PERSONNEL - Relocation - Household goods - Weight restrictions - Liability - Computation DIGEST: Invalidation of weight certificates on a permanent change of station move does not prevent assessment of excess cost against the member. Weight can be determined by other reasonable means, including the estimated weight per article shipped, and the agency's determination of weight under such circumstances will be upheld by this Office, absent fraud or clear error.
Captain Julius B. Dell:
This responds to a request for an advance decision on the propriety of assessing Navy Captain Julius B. Dell excess weight charges in connection with the movement of his household goods from Annapolis, Maryland, to Alexandria, Virginia, in June 1985. /1/ We find that the assessment is proper.
Captain Dell was entitled to ship 13,000 pounds of goods in his permanent change of station move from Annapolis to Alexandria. The carrier's weight certificates indicated that the shipment weighed 18,316 pounds, and Captain Dell initially was charged $1,246.44 for the excess cost. However, in responding to Captain Dell's complaint that the weight certificates were not properly completed and otherwise appeared irregular, the certificates were invalidated.
Volume 1 of the Joint Travel Regulations (JTR), para. M8002-4 (change 376), which was applicable at the time of the move, provided that if the actual weight of household goods is unobtainable, the weight to be charged against the member's prescribed weight allowance is to be determined by the formula of 7 pounds per cubic foot for all shipments, with certain exceptions not applicable here.
The Navy was unable to apply that formula, however, because the carrier never provided the cubic volume of the shipment. Instead, the agency determined the shipment weight to have been 14,487 pounds, based on a Constructive Weight Analysis, showing an estimated weight per article shipped, formulated by the carrier. The Navy then recomputed Captain Dell's indebtedness as $479.61.
Captain Dell maintains that the weight of his household goods never exceeded 13,000 pounds. He points out that the shipment included 351 items, whereas when he moved from Texas to Annapolis in 1982 he shipped 381 items at a weight of only 13,620 pounds, and he states that he moved a number of heavier items that had been included in the first shipment to Alexandria himself. Captain Dell notes that the shipment was not reweighed even though he requested a reweigh when the shipment was picked up, and even though government regulations require reweighing of all shipments of more than 11,000 pounds. Captain Dell complains that the failure to reweigh as requested and required by regulation deprived him of evidence that would conclusively prove that his shipment was within authorized limits.
Captain Dell argues that for those reasons, as well as the carrier's failure to contest the invalidation of the weight certificates, the record should be viewed in his favor, and he therefore should not be assessed any excess charges.
We think the assessment of excess charges based on a weight of 14,487 pounds was reasonable. Initially, we point out that the invalidation of the weight certificates does not mean that excess weight costs incurred in the move may not be assessed. James C. Wilson, 62 Comp.Gen. 19 (1982). Also, when cubic volume also is not obtainable, the weight of the shipment must then be determined by other reasonable means. Id.; Major James S. True, USAF, B-206951, July 12, 1982.
Captain Dell never has actually provided an estimate of how much his shipment weighed. Further, Captain Dell has had the opportunity to examine the inventory of items listed in the Constructive Weight Analysis, which the Navy essentially adopted, and has not disputed either the shipment of any item, or the average weight used for each type of item. The weights used for the items do not appear unreasonable to us. The determination of a shipment's estimated weight under these circumstances is primarily for the government agency involved, and our Office will not disturb the agency's determination absent fraud or clear error. Colonel Donald MacLeod, Jr., B-214373, Jan. 3, 1985; Captain Roger L. Reasonover, Jr., B-213543, Dec. 7, 1983; Major James S. True, B-206951, supra. The burden of proof remains on Captain Dell to establish the liability of the United States and his right to payment. Colonel Donald MacLeod, Jr., B-214373, supra; 4 C.F.R. Part 31.
Further, we have held that even where a shipment wrongfully is not reweighed the assessment of excess weight charges against the member still may be proper. Administrative regulations providing for reweigh upon request are considered instructional or procedural, as are other administrative procedures providing for reweigh. Such provisions do not apply to the administration or interpretation of entitlements, nor do they provide additional entitlements or confer benefits not specifically authorized by the statute itself or by regulations. Captain Roger L. Reasonover, Jr., B-213543, supra; Major Arthur D. Eiff, B-207950, Feb. 8, 1983; Charles Gilliland, B-198576, June 10, 1981.
Captain Dell suggests that the facts surrounding his shipment imply that fraud may be involved and should be investigated. However, an allegation or suggestion of fraud is not sufficient proof to overcome the presumption of honesty and fair dealing, nor does it provide a clear inference that fraud was committed. Captain Roger L. Reasonover, B-213543, supra; Dennis O. Williams, B-207393, May 23, 1983. If Captain Dell desires to pursue the matter, he should discuss it with the appropriate Personal Property Shipping Office and/or the Naval Investigative Service.
In sum, the record provides no alternative to accepting what appears to be a reasonable estimate of the weight of Captain Dell's shipment: 14,487 pounds. We therefore think the excess charge in issue properly was assessed.
/1/ This request is made directly to this Office by the Commanding Officer, Navy Material Transportation Office, a disbursing officer.