April 9, 1997
                                                 



                             GSBCA 13730-RELO


                     In the Matter of DELAND L. BROTEN


     Deland L. Broten, Roseau, MN, Claimant.

     James O. Burnett, Chief, Claims and Adjudication Division,
Defense Finance and Accounting Service, Indianapolis, IN, appearing
for Department of Defense.

GOODMAN, Board Judge.

     Mr. Deland L. Broten is a civilian employee of the Department
of the Army. On February 10, 1995, he requested through the
transportation office at Grand Forks Air Force Base, North Dakota
that his personal property be moved from Roseau, Minnesota to
Gwinn, Michigan as part of a permanent change of station move.  The
transportation office arranged to have the property shipped via
motor van on a Government bill of lading (GBL), and authorized
payment for shipping of household goods (HHG) weighing up to 18,000
pounds.  The agency determined that Mr. Broten shipped a total
weight of 19,560 pounds, resulting in excess weight of 1,560
pounds.

     By letter dated December 6, 1995, from the agency, Mr. Broten
was charged $843.40 for the excess weight shipped.  Mr. Broten
responded by letter dated January 3, 1996.  He alleges that when he
processed the shipment of his HHG through the Transportation
Management Office (TMO) of his agency, he was told that his allowed
weight was 18,000 pounds minus 10 percent for shipping boxes,
packing materials, etc.  He further alleges that after his goods
were loaded and weighed, he was told that a deduction of 10 percent
would be made.  He states:

     Since my total weight was 19,560 pounds and 10% deducted
     would be 1,956 pounds which then gives me a grand total
     of 17,604 shipped.  I therefore have not exceeded the
     maximum weight allowed.

Mr. Broten alleges that when he received the agency s letter
informing him of the debt, he again called the TMO and received the
same response.

     By letter dated February 29, 1996, the agency reiterated that
Mr. Broten was responsible for the repayment of the debt assessed
for excess shipping and further stated that "[t]he Comptroller
General has ruled that government employees cannot be held
accountable for erroneous information." 
     
     On March 11, 1996, Mr. Broten requested review by the General
Accounting Office of the agency s decision to hold him liable for
$843.40 for excess weight in the shipment of HHG.  He further
stated in that letter that had he not received the erroneous
information discussed above, he would have transported sufficient
HHG in his pick-up truck, which he drove empty to his new duty
station.

     Statute authorizes an agency to pay for transportation of (and
related activities involving) household goods and personal effects
not in excess of 18,000 pounds net weight.  5 U.S.C.  5724(a)(2)
(1994).  The Joint Travel Regulations (JTR), applicable to
Department of Defense civilian employees, implement the statute. 
JTR 8000.A reads, in relevant part:

     A. General.  The maximum weight of household goods (HHG)
     that may be transported or stored in connection therewith
     at Government expense is limited to 18,000 pounds net
     weight for all employees.

     . . . . 

     B. Determining the Net Weight

          1.  Uncrated Shipments.  When HHG are shipped
     uncrated as in a household mover s van or similar
     conveyance, the net weight shall be that shown on the
     bill of lading or on the weight certificate attached
     thereto, which, under Interstate Commerce Commission
     (ICC) regulations, includes the weight of barrels, boxes,
     cartons, and similar materials used in packing, but does
     not include pads, chains, dollies, and other equipment
     needed to load and secure the shipment.      

     According to the regulation, for all weight in excess of the
authorized allowance, the employee must pay the excess weight
charges.  Mr. Broten alleges that but for erroneous advice received
from the Government, he would not have shipped amounts in excess of
the authorized allowance.  It is therefore his position that the
debt arose solely from the erroneous advice he received from the
agency.  We see no reason to doubt Mr. Broten.  In fact, the
agency s response dated February 29, 1996, does not deny that
erroneous information was given, but states:  The Comptroller
General has ruled that government employees cannot be held
accountable for erroneous information.    We consider Mr. Broten to
have acted in good faith and to be free from fault in this matter.

     Even so, this Board cannot relieve Mr. Broten from this debt.
As explained below, the only possible remedy would be a waiver of
the debt, which this Board does not have the authority to exercise.


     The head of an agency has authority to waive an employee's
liability for debts rising out of certain "erroneous payments"
where collection would be "against equity and good conscience and
not in the best interests of the United States" and 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) (1994).  This waiver authority
applies to erroneous payments of travel and transportation
expenses.  Pub. L. No. 99-224, 99 Stat. 1741 (1985).

     It is standard practice of Government agencies to ship a
qualifying individual's HHG at Government expense and to then
collect any charges for excess weight or extra services, as the
agency attempts to do in the instant case.  When a HHG shipment is
made under this system, the GBL constitutes a contract between the
Government and the carrier under which the carrier is entitled to
be paid for its services.  The Comptroller General concluded that
there is no "erroneous payment" for purposes of the waiver statutes
where the Government pays or bears the cost of a HHG shipment which
exceeds the applicable weight allowance in reliance on collection
of the additional charges for the excess weight from the employee
pursuant to this standard procedure.  In these circumstances, the
Government has committed no "error," but has merely made payment in
the normal course of business to satisfy its obligation to the
carrier.  Transportation Debt Waivers--Household Goods and Mobile
Homes, 67 Comp. Gen. 484 (1988).  Mr. Broten therefore must pay
excess weight charges, unless the circumstances warrant relief
under the waiver statute. 

     The Comptroller General recognized that there might be some
cases where excess weight charges were incurred as the result of
Government error, such as where the excess weight was shipped on
the basis of erroneous authorizing orders.  The Comptroller General
noted that these unusual cases should be dealt with on a
case-by-case basis.  In Robert S. Jackowski, B-229335 (Oct. 21,
1988), the Comptroller General exercised this waiver authority to
relieve an employee of a debt for shipping HHG arising from
erroneous information which resulted in a shipment that exceeded
the weight limitation, in circumstances similar to those in the
instant case.  The Jackowski decision dealt with a uniformed
employee of the Department of Defense.  Paul Rodriguez, B-229107
(Aug. 22, 1988), applied the waiver authority in similar
circumstances to a civilian employee. 

     The waiver authority for Mr. Broten s debt resides in the head
of the agency, in this case the Department of Defense.  That
department may now wish to consider exercising its delegated
authority with regard to Mr. Broten s claim.  This Board does not
have the authority to grant relief under the waiver statute.





                                   _________________________
                                   ALLAN H. GOODMAN
                                   Board Judge