RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-1999-00981

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

She be reimbursed the $3,769.09 she had to pay for exceeding her authorized weight allowance for the shipment of her household goods (HHG).

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APPLICANT CONTENDS THAT:

There was probable fraud and a disregard for the regulations by the carrier during the shipment of her HHG.  This was compounded by inadequate preparation by the originating Traffic Management Office (TMO), and, almost no quality assurance, customer service, or representation of Air Force interests by the receiving TMO.

In support of her appeal, the applicant provided a personal statement and documentation pertaining to the shipment of her HHG.

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

At the time the applicant submitted her appeal, she was serving on active duty in the grade of major.  Information extracted from the Personnel Data System (PDS) indicates that the applicant has a date of separation (DOS) of 9 Sep 99.  Her Total Active Federal Commissioned Service Date (TAFCSD) and Total Active Federal Military Service Date (TAFMSD) are 21 Aug 95.

The relevant facts pertaining to this application are contained in the letter prepared by the appropriate Air Force office of primary responsibility.  Accordingly, there is no need to recite these facts in this Record of Proceedings.

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AIR FORCE EVALUATION:

The Joint Personal Property Shipping Office, Plans & Operations Division, JPPSO/XO, reviewed this application and recommended denial.  JPPSO/XO noted that the applicant was called to active duty from XXXXXXX, Colorado, and assigned to XXXXXXX AFB, XXXXXXXX.  She made a shipment of HHG in conjunction with her assignment.  The shipment moved under Government Bill of Lading (GBL) YP-237, 577.  It had an origin net weight of 26,460 pounds.  A reweigh at destination produced a lower net weight of 26,200 pounds.  She was billed $4,182.21 for exceeding her authorized weight allowance of 14,500 pounds.

According to JPPSO/XO, the applicant contacted the TMO at XXXXXXXX AFB who assisted her in filing a rebuttal of the overweight charges.  The rebuttal states, in part, the weight ticket at origin did not identify the trailer number, GBL number, or Carlyle as the carrier; the reweigh performed at destination had not been requested by their office and the tare weight on the trailer was not obtained until three days after the delivery.  The rebuttal further stated that using DD Form 1701, they estimated the shipment weight to be 16,642.

The Excess Cost Adjudication Function (ECAF) reviewed the case file and determined the applicant had shipped personal property in excess of the prescribed weight allowance.  However, applying the cube rule, they increased the weight credit for professional books, papers, and equipment (PBP&E) to 900 pounds, used the lower reweigh weight, and omitted the $80.00 destination third party service charge.  The excess cost charges was reduced to $3,769.09 vice $4,182.21.

JPPSO/XO indicated that the applicant was billed excess cost charges because her HHG shipment weight exceeded the prescribed weight authorization for her grade.  Paragraph U5340-B(1), JFTR, provides that the total cost of transportation shall be prorated on the basis that the member bears the portion that the excess net weight bears to the total net weight transported.  The applicant states that the carrier may have committed fraud regarding the weight of her shipment.  However, she did not provide evidence to support the allegation.  In similar cases, the Comptroller General has consistently held that the burden of establishing fraud rests upon the party alleging it and that the fraud must be proven by evidence sufficient to overcome the existing presumption of honesty and fair dealing.  Circumstantial evidence is competent only if it affords a clear inference of fraud and amounts to more than a suspicion or conjecture.  If, however, the circumstances are as consistent with honesty and fair dealing as with dishonesty, the inference of honesty is required to be drawn.

JPPSO/XO stated that carriers participating in the Department of the Defense (DoD) personal property program are paid on the bases of GBL weights as supported by proper weight certificates.  Any estimates provided by carrier or transportation personnel prior to loading are just that, an estimate.  The carrier provided weight tickets showing an origin weight of 26,460 pounds and a destination weight of 26,200 pounds.  The origin weight tickets identify the GBL number, shipper's name, and tractor number.  The destination weight tickets do not contain the GBL number, but do list the member's name and tractor number.  Both sets of weight tickets were signed by weighmasters provided by the states of Colorado and Washington.

In decisions B- 195256, November 15, 1975 and B-198576, June 10, 1981, the Comptroller General held that where the transportation voucher prepared by a mover in support of its charges is supported by a valid weight certificate or weight tickets, in the absence of fraud or clear error in the computation, the Government must rely on the scale certifications of record in computing excess costs.  Thus, absent computational errors, or fraud, the Government is bound by a weight certificate unless the certificate is shown to be invalid.  In order to show invalidity, one must show that the certificate is clearly in error.

According to JPPSO/XO, the fact that the carrier obtained a reweigh at destination without being ordered to do so by the destination TMO is not a violation of regulation.  Some carriers require a reweigh for their own purposes in establishing charges with their agents.  However, the Government is not required to pay for the second weighing unless it was requested by transportation personnel.  The reweigh provided a benefit to the applicant as the excess cost charges are based on the lower destination weights.  If the reweigh ticket is invalidated, it would require the charges to be recalculated based on the higher origin weights.

Normally, when the carrier arrives at destination, they contact the destination transportation office who coordinate the delivery with the military member.  Sometimes when the carrier arrives during non-duty hours, they will contact the member direct and ask if the member is willing to accept delivery of their shipment.  If it is convenient for the member, they may accept delivery during non-duty hours.  However, members are not required to accept delivery during non-duty hours, weekends, or holidays.  Therefore, when the carrier contacted the applicant and offered to deliver her shipment on Sunday, she could have refused delivery until the next duty day.

JPPSO/XO indicated that when a shipment is awarded to a carrier, the carrier is given a certain amount of time to get the shipment to destination based on estimated weight of the shipment and the distance involved.  The Government has no control over the number of drivers or routes the carrier is to use.  The shipment may arrive at destination at any time as long as it meets the agreed upon date.

According to JPPSO/XO, the applicant’s shipment exceeded the prescribed weight allowance as evidence by two sets of weight tickets, one at origin and one at destination.  Both sets of tickets were signed by certified weighmasters under authority of the states of Colorado and Washington.

A complete copy of the JPPSO/XO evaluation, with attachments, is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant indicated that she does not dispute the validity of the weight tickets submitted by the carrier, despite the problems with identifying information on the various tickets.  She contends that the carrier fraudulently increased the weight of the shipment in order to increase the billed amount.  She has no specifics as to how this was actually done, but she would suggest material that did not belong to her was included in the shipment in Colorado and not removed until after delivery in Washington.  As previously stated, she was never informed that she should make sure the truck was empty prior to loading and after delivery, or failing this, she should verify that the shipper had proper weight tickets showing the weight of the additional material.

Again, a major part of the problem with her shipment was the lack of counseling by the originating Traffic Management Office (TMO), despite completion of the required HHG counseling session.  Her only prior experience with HHG shipping was in the private world where the final weight was a guaranteed maximum based on the initial estimate made by the carrier.  No mention was made by the counseling TMO that the final shipment weight would be based on actual weight, and no suggestion/instruction was given that she should obtain the final weight prior to unloading.  As a result, she did not force the carrier to give her a final weight prior to unloading.  Even if she had obtained this weight prior to unloading, she would not have known to refuse delivery, as no mention was made by the counseling TMO that the shipment not only could but should be processed through the Fairchild TMO prior to actual delivery.

Finally, she believes that the carrier, who obviously understood the military TMO system very well, saw an opportunity to take advantage of a naïve, poorly prepared, inexperienced military person and took full advantage.  

Applicant’s complete response is at Exhibit D.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice.  The applicant's complete submission was thoroughly reviewed and her contentions were duly noted.  However, we do not find the applicant’s assertions or her supporting documentation sufficiently persuasive to override the rationale provided by JPPSO/XO.  Therefore, in the absence of clear and convincing evidence to the contrary, we agree with the recommendation of JPPSO/XO and adopt their rationale as the basis for our decision that the applicant has failed to sustain her burden of establishing that she has suffered either an error or an injustice.  Accordingly, we find no compelling basis to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered this application in Executive Session on 16 Nov 99, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 7 Jan 99, w/atchs.
    Exhibit B.  Letter, JPPSO/XO, dated 11 Jun 99.
    Exhibit C.  Letter, SAF/MIBR, dated 28 Jun 99.
    Exhibit D.  Letter, applicant, dated 6 Jul 99.