Board of Contract Appeals
                 General Services Administration
                      Washington, D.C. 20405
                                                            
                   ___________________________

                         August 29, 2003
                   ___________________________


                         GSBCA 16066-RELO


                In the Matter of KELLIS L. NOBLES


     Kellis L. Nobles, Wiesbaden, Germany, Claimant.

     Cynthia R. Blevins, Deputy Director, Finance Center, United States Army Corps of
Engineers, Millington, TN, appearing for Department of the Army.

HYATT, Board Judge.

     Claimant, Kellis L. Nobles, a civilian employee of the United States Army Corps of
Engineers, was relocated from Japan to Wiesbaden, Germany, in March 2002.  In connection
with this relocation, he was authorized to ship, via Government bill of lading (GBL), 18,000
pounds of household goods (HHG), including air shipment of 350 pounds of unaccompanied
baggage for each adult and dependent twelve years of age or older, and 175 pounds for each
dependent under the age of twelve.

     Claimant was accompanied by his spouse and thirteen-year-old son, entitling him to
1000 pounds of unaccompanied baggage to be shipped, at Government expense, by air from
Japan to Germany.  [Foot # 1 ]  In making the move, claimant and his family air-shipped
more than 1000 pounds of unaccompanied baggage.  [Foot # 2 ] 

     

****************** Footnote Begin **********
[Foot # 2 ]         Mr. Nobles also shipped 2515 pounds of HHG from Japan and 1040
pounds of stored HHG from the United States to Germany by surface (non-air)
transportation.
****************** Footnote End ************

****************** Footnote Begin **********
[Foot # 1 ]         Under the Joint Travel Regulations (JTR), the provision that each adult
and dependent is entitled to shipment of a specified weight of unaccompanied baggage is
qualified by a further provision that the total amount of unaccompanied baggage is limited
to 1000 pounds.  JTR C8020-B, -D.1.a.
****************** Footnote End ************

 After completing an audit of his travel voucher, the Corps' Finance Center in Tennessee
initially informed claimant that he owed the Government $2144.06 based on the excess
weight of the unaccompanied baggage he had shipped by air.  This was calculated using the
actual air rate of $298.20 per hundred pounds shipped and using the net weight of the
shipment.  At claimant's request, this assessment was reviewed by the European
Transportation Office.  A representative of this office recommended that the excess billing
cost be computed based on the difference between the actual air rate ($298.20 per hundred
pounds) and the actual surface rate ($120.02 per hundred pounds), or a rate of $178.18,
which results in an excess unaccompanied baggage cost of $1281.11 (based on 719 net
pounds).  

     Thereafter, Mr. Nobles received a second bill from the Corps' Finance Center, seeking
repayment of an additional $1103.34.  This was accompanied with the explanation that the
first bill was erroneously calculated upon the net, rather than the gross, weight of the air
shipment.  The Corps actually paid the shipper for transporting 2089 pounds of
unaccompanied baggage.
 [Foot # 3 ] 
     
****************** Footnote Begin **********
[Foot # 3 ]         The total cost of the air shipment was  $6306.78.
****************** Footnote End ************

 The Corps' Finance Center continues to maintain that claimant must repay the Government
a total of $3247.40.  Claimant has requested the Board's review of this decision, urging that
he should not be required to repay any of the amount assessed by the Corps.  In the
alternative, claimant challenges the methodology used by the Corps to calculate the amount
he owes.

                            Discussion

     Claimant contends first that since the actual total cost of his combined shipments of
HHG ($8144.56) amounted to far less than the amount authorized in his travel orders
($23,385.40), he should not be required to pay any of the amounts billed to him by the
Finance Center.  He suggests that repayment of the charges for excess weight shipped by air
should either not be required or should be waived.  [Foot # 4 ]  As to the first point, we note
that the Government's authority is to pay the actual costs of shipping household goods by the
authorized method up to a maximum of 18,000 pounds, including unaccompanied baggage,
if any.  JTR C8000.  As discussed in more detail below, the regulations do not contemplate
allowing use of a more expensive means of transport at the expense of the Government
simply because the total amount of HHG to be moved is less than the maximum authorized. 
Thus, the Corps has properly determined that under the applicable regulation, Mr. Nobles
should reimburse the agency for any unauthorized additional expense attributable to the
shipment of unaccompanied baggage in excess of 1000 pounds. 

     
****************** Footnote Begin **********
[Foot # 4 ]         In support of this contention Mr. Nobles explains that he did not
intentionally exceed the 1000 pound maximum for unaccompanied baggage.  Rather, he
mistakenly relied on his packers to help keep the weight of the unaccompanied air shipment
within the 1000 pound limitation.  
****************** Footnote End ************

To the extent Mr. Nobles believes repayment should be waived under the circumstances, this
is a prerogative that rests solely with the agency.  Under applicable law, the Corps may
consider exercising the authority it has to waive repayment of this cost if it concludes that
collection would be "against equity and good conscience and not in the best interests of the
United States" and if there is no indication of "fraud, misrepresentation, fault, or lack of good
faith" on the part of the person whose debt is requested to be waived.  5 U.S.C.  
5584(a)(2)(A) (2000); See, e.g., Marlene J. Walters, GSBCA 15875-RELO, 03-1 BCA  
32,124 (2002); Brian Johnson, GSBCA 15316-RELO, 01-1 BCA   31,337; Gerald A.
Sherman, GSBCA 13791-TRAV, 97-2 BCA   29,299.  The exercise of this authority is
committed entirely to the discretion of the agency, however, and is not within the purview
of this Board's review function.  Thus, Mr. Nobles must direct this request to the Corps.

     Mr. Nobles has also questioned the methodology used to calculate the amount he must
repay.  His first objection to the approach taken by the Finance Center is based on his reading
of an internal Army regulation relating to the determination of excess costs in shipping of
HHG.  Department of the Army Regulation (AR) 55-71, paragraph 8-6(b) contains a note that
provides the following guidance for Travel Offices (TO's):
 [Foot # 5 ] 
          
****************** Footnote Begin **********
[Foot # 5 ]         The preface to the regulation states its purpose as follows:

          This revision incorporates Army policy on shipments after use
          of Joint Travel Regulations (JTR) weight allowance; use of
          orders in combination; shipments for military members with a
          homebase or advanced assignment; shipments of household
          goods to Alaska, Hawaii, Puerto Rico, or a US Territory or
          possession when a military member is assigned to a restricted
          area outside the continental United States (CONUS); and
          shipment of unaccompanied baggage within CONUS. It
          provides guidance on the account properly chargeable when an
          Army member is assigned to Government quarters administered
          by another Service.  It delegates to major Army commands
          authority to extend travel and transportation entitlements in
          cases where a member has died while on active duty.  It includes
          charges on accompanied baggage allowances.  It updates
          appendix B, incorporating changes in weight allowances to
          oversea areas listed therein.

The regulation was effective September 15, 1984.
****************** Footnote End ************

 When a member's shipment exceeds authorized distance or weight and the mode of shipment
directed to be used for operational purposes is not the lowest cost mode of service, the TO's
estimate of transportation charges that the member owes for excess is to be computed using
the rate of the lowest cost mode rather than the rate of the higher cost directed mode. 

Paragraph 8-3 of this regulation suggests that for civilian employees the procedures
applicable to excess costs on HHG shipments overseas are governed by the JTR.  Since the
note relied on by claimant refers to a "member's shipment," it does not appear that the
regulation is intended to apply to civilian employees.  Even if it does, however, by its
language the regulation only applies when the Army has directed shipment by a means more
expensive than the lowest cost method and then seeks to recover from the transferee the costs
attributable to weight in excess of the amount authorized to be shipped.  That is not what
occurred here.  The Army did not direct Mr. Nobles to move the extra weight at issue here
by air.  It simply authorized him to ship up to 1000 pounds of unaccompanied baggage by
air if he chose to do so.

     Although the regulation cited by Mr. Nobles does not apply, his challenge to the
methodology used by the Corps' Finance Center to calculate the amount he should repay is
appropriate for another reason.  The proper approach was the one advocated by the European
Transportation Office, which concluded that the cost attributable to shipping excess weight
by air should be  computed by using the difference between the actual air rate ($298.20 per
hundred pounds) and the actual surface rate ($120.02 per hundred pounds), which is $178.18
per hundred pounds.  Claimant's repayment obligation should be derived by multiplying the
excess net weight by that amount. 

     The Board and the Comptroller General, the Board's predecessor in settling claims
involving relocation of federal civilian employees, have consistently held that the cost of
additional shipments of HHG, including unaccompanied baggage, may be paid by the
Government up to the cost of moving the employee's HHG in one lot, at a maximum net
weight of 18,000 pounds, in the most economical way.  See David A. Dunlap, GSBCA
15764-RELO, 03-1 BCA   32,120 (2002).  When unaccompanied baggage has been properly
authorized, as it was here, the Government should pay for the cost of shipping the authorized
amount of unaccompanied baggage by air, plus the cost that would have been incurred to
include the excess baggage along with the HHG that was shipped by the most economical
route -- here, by surface transportation.  The employee is liable for the difference.  William
J. Feaser, B-189968 (Mar. 31, 1978); Paul C. Salute, B-187020 (Jan. 24, 1977).  Thus, in this
instance, the Corps is responsible for the cost of shipping 1000 pounds of HHG as
unaccompanied baggage and the constructive cost of shipping the excess pounds as HHG at
the surface rate from Japan to Germany.  Mr. Nobles is responsible for the remainder.  This
is the approach adopted by the European Transportation Office.

     Finally, Mr. Nobles challenges the Corps' determination that his liability for excess
weight should be calculated based on the gross, rather than the net, weight of the air
shipment.  The statute and implementing regulations governing shipment of household goods
authorize shipment of 18,000 pounds net weight of HHG when an employee relocates  in the
interest of the Government.  Richard D. Grulich, GSBCA 15800-RELO, 02-2 BCA   31,891;
Robert J. Land, GSBCA 15367-RELO, 01-2 BCA   31,455.  Based on the record before us,
the Corps initially determined a net excess weight of some 719 pounds.  Subsequently, the
Corps adjusted the bill, informing Mr. Nobles that it should have billed him on the basis of
the gross weight in excess of 1000 pounds.  The only document included in the record is a
bill from the air shipper to the Corps for shipment of "2089#."  This document does not state
whether the weight is net or gross.  There is no way to determine from the record what the
net weight of the shipment was.  [Foot # 6 ]  The Corps has not offered any further
explanation of its position.  If the additional charge is indeed based on the gross, rather than
on the net, weight of the unaccompanied baggage, then Mr. Nobles is correct in his
contention that he should not be required to pay this additional amount.  

                                 
****************** Footnote Begin **********
[Foot # 6 ]         The allowances for shipments of both HHG and unaccompanied
baggage are based on net weights.  JTR C2304, C8100. 
****************** Footnote End ************

Decision

     Claimant's liability for the cost of shipping unaccompanied baggage in excess of 1000
pounds should be computed by using the adjusted rate of $178.18 per hundred pounds. The net amount of excess weight should be determined in accordance with the JTR.  Whether
repayment should be waived is a matter within the discretion of the agency.



                                   _________________________________
                                   CATHERINE B. HYATT
                                   Board Judge