MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            9 January 2001
	DOCKET NUMBER:   AR2000047617

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Eric N. Andersen		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Waiver/Cancellation of a $4,262.13 debt he incurred as a result of an overweight household goods (HHG) shipment. 

APPLICANT STATES:  In effect, that his debt of $4,262.13 should be waived or cancelled because it has never been satisfactorily determined that he was in fact overweight.  He further states that at the time his HHG were packed for shipment to Panama, it was raining very hard and the wooden crates were soaked with water, which would have caused the shipment to be heavier than they should have been.  Accordingly, they should have been re-weighed prior to delivery and he requested a re-weigh before delivery but there is no evidence to show that the shipment was re-weighed.  He also states that his shipment incurred a lot of damage and loss and had the shipment been re-weighed, given the items that were missing upon delivery, the weight would have been different.  This is supported by the inspection report (DD Form 1780-R) which indicates that the HHG shipment was improperly packed and that improper/inadequate packing materials were used.  He goes on to state that he was not properly notified of the overweight condition and the debt he incurred by Department officials and contends that the failure to follow proper procedures should also be a basis to exonerate him of the debt.  He also states that he submitted a request for a waiver of the debt that was approved by his battalion commander and turned into finance officials, however, no action was taken to waive the debt.  In support of his application he submits photocopied documents relating to his shipment and debt.

EVIDENCE OF RECORD:  The applicant's military records show:

On 27 June 1996, while serving as a captain at Fort Drum, New York, the applicant submitted an application for shipment of HHG (DD Form 1299) to Panama in connection with a permanent change of station (PCS).  Although the DD Form 1299 is not complete (only one side provided), it indicates in the remarks section that the applicant was aware that there may be excess costs involved.  The form does not provide sufficient information to determine what the excess costs were to consist of.  The pick-up date for his HHG was scheduled for 12 July 1996 with a destination delivery date of 12 September 1996.  He was authorized to ship 14,500 pounds of HHG.  The shipment was weighed and after deducting 1,240 pounds of professional books and equipment, 10% credit for packing materials and 11.11% for repack charge, the applicant exceeded his weight by 4,608 pounds.

His HHG were delivered, according to the shipment evaluation and inspection record, on 24 September, 6 days after the requested delivery date and the unsigned inspection report provided by the applicant (DD Form 1780-R) indicates that the applicant’s HHG shipment was improperly packed/loaded and that improper/inadequate packing materials were used.  It also made note that the carrier failed to notify the personal property shipping office of the inability to meet the requested delivery date. It also noted that several items were missing from the shipment. 

On 23 November 1999 the applicant submitted a DD Form 2789 (Waiver/Remission of Indebtedness Application) in which he requested that the debt be waived because he was not notified until 23 September 1999 of the debt, because the shipment was not re-weighed prior to delivery, and because it was packed improperly and damaged by rain.  His battalion commander indicated that his request justified approval of a waiver and indicated that he approved the waiver of the debt.  There is no indication in the available evidence where the applicant went from that point.

In the processing of his application to the Board, a staff advisory opinion was obtained from the Defense Finance and Accounting Service (DFAS) Claims and Adjudication Branch.  Officials at the DFAS opined that the applicant did in fact exceed his authorized HHG allowance twice and that he was liable for $6,544.67 in excess shipping costs.  The DFAS also offered that the debt was established on 2 September 1997, electronic message traffic was dispatched to his servicing finance office, and the debt was placed in a non-collective status for a period of 30 days to allow the applicant due process to accept or rebut the debt based on written notification from his servicing finance office.  The debt appeared on his September 1997 leave and earnings statement (LES) and there is no indication that the applicant ever communicated with the DFAS regarding the debt.

Officials at the DFAS went on to state that they received notification on 12 August 1999 that the applicant had made another shipment with additional excess weight of 3,829 pounds in the amount of $3,267.56.  After notification, the debt was activated by the servicing finance office.  This gave him excess weight debts totaling approximately $8,437.00.

On 26 January 2000 the DFAS received a call from the applicant’s servicing finance office requesting that the debt collection be suspended until further notice.  The DFAS complied with the request and on 13 October 2000 was notified by the servicing finance office that the applicant had filed a request for a waiver of the debts based on untimely notification and that he was of the understanding that it had been approved.  He was not disputing the excess weight shipment that resulted in a debt of $3,267.56.

The DFAS initiated an investigation through the Judge Advocate General (JAG) Recovery Branch at Fort Meade, Maryland and discovered that the applicant had filed a claim for damaged/lost HHG and that he received a check for $4,042.00.  DFAS obtained copies of his claims documents and was able to credit the applicant with 1,066 additional pounds along with the standard computations and reduced the applicant’s debt from $4,262.18 to $3,277.11.  The DFAS opined that the applicant had valid debts of $3,277.11 and $3,267.56 and opined that they should be collected. 

The opinion was provided to the applicant for comment and he responded to the effect that he questions the credibility and accuracy of the information provided in the advisory opinion because the debt collection was never suspended as the opinion suggests.  He further contends that because he does not have any evidence in his possession to show that a re-weigh was conducted, there is no way to validate the claim that he was overweight.  Therefore, he requests that the debt be cancelled and that all funds collected be returned to him.  

Army Regulation 37-106 provides the procedures for finance officials to determine the excess costs involved in the shipment of HHG.  It provides, in pertinent part, that weight allowances are intended to represent the actual net weights of HHG, exclusive of any packing, authorized to be shipped at government expense.  When the actual weight of unpacked and uncrated HHG is not known, the net weight will be determined by reducing the gross weight in accordance with the packing allowances authorized in paragraph U5335 of the Joint Federal Travel Regulation (JFTR).  When a move involves HHG shipping boxes provided by the mover, the net weight shown on the carrier’s bill of lading will be reduced by 10%. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  While the applicant has provided some of the documents used in the shipment of his HHG, the documents are incomplete and of poor quality (readability) and do not provide sufficient evidence to show that he was not overweight or that his HHG shipment weight and debt were not calculated properly by DFAS officials.  

3.  It appears, based on information obtained from the DFAS, that every attempt has been made by that agency to give the applicant the benefit of doubt in every aspect of his shipment and computation/reduction of his debt.  However, the available evidence still indicates that his HHG shipment was overweight.

4.  The applicant’s contentions regarding the packing of his HHG and the weather at the time have been noted by the Board; however, given the deductions allowed for such packing, it does not appear that these issues would have affected his final weight computations.  Overall, it appears that DFAS officials have given him every deduction allowable to reduce his shipping weight and debt to the government.

5.  Given that the applicant has provided no evidence to show that the weight for which he was ultimately charged is abnormal when compared to the actual HHG he shipped, the Board must presume in the absence of evidence to the contrary, that the weight for which he was charged is correct.

6.  The Board understands the discontent that the applicant has in regards to the damage he incurred during his HHG shipment.  However, the Board also understands that it is not uncommon for damage to be experienced when moving HHG to an overseas area and recognizes that it is an unpleasant experience that is associated with moving in the military.  For this reason, the government provides a means by which individuals may file claims against the government for the losses they incur during such moves.  Accordingly, the applicant exercised his rights in filing a claim against the government and was paid for his claim of damages. 

7.  The Board also notes that the applicant attempted to file for a waiver of the debt and although there is no evidence to show that the application was ever forwarded to DFAS officials for approval, it appears that DFAS officials have reviewed his claim thoroughly and determined that his debt, which they further reduced after review, is still valid.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___ena__  __mdm__  __clg____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000047617	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/01/09	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  293	128.100/CANC DEBT	
2.		
3.		
4.		
5.		
6.