RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

      IN THE MATTER OF:            DOCKET NUMBER:  BC-2006-03436
            INDEX CODE:  128.00
      XXXXXXX                     COUNSEL:  NONE

                                  HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  10 MAY 08
________________________________________________________________

APPLICANT REQUESTS THAT:

His claim ($2547.13) for damaged household goods (HHGs) be processed.

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APPLICANT CONTENDS THAT:

An injustice  was  caused  by  the  moving  company  and  the  legal  office
responsible for  handling  his  HHGs  claim.   Applicant  states  his  HHG’s
arrived with obvious damage.  He was instructed by the movers to  only  mark
the inventory sheet if anything was missing.  After accounting for  all  the
items, he states the movers did not properly complete  the  paperwork  prior
to leaving and asked him to complete the forms when time permitted. In  July
06, he contacted the Personal Property Office (PPO) in  Saratoga,  New  York
(NY) and was advised there was plenty of time  to  send  the  DD  Form  1840
(Joint Statement Of  Loss  Or  Damage  At  Delivery)  by  regular  mail  vs.
overnight mail.  On 2 Aug 06 the DD Form 1840 was  received  from  the  PPO.
On 13 Sep 06, he met with the claims examiner to process the  paperwork.   A
few days later, he received a response stating the payment on his claim  was
deferred.  He contacted the claims examiner  who  indicated  everything  was
ready to process.  A few days later, an appointment was arranged for  22 Sep
06 to inspect the  damaged  goods.   On  22  Sep  06,  the  claims  examiner
indicated she would not make the appointment and  would  process  the  claim
with the information she had.  He received a letter dated 29 Sep 06  stating
the claim was denied because he  was  late  submitting  the  DD  Form  1840;
consequently, the carrier did not receive the DD Form 1840 in  the  required
amount of time.  In the end, the PPO Office indicated  the  carrier  did  in
fact receive the claim and the Claims Office in  Rome  NY  never  filed  the
claim at all.

In support of his request, the  applicant  submits  a  personal  memorandum,
copies of two Personal Property Claim denial letters and a general power  of
attorney.

The complete submission, with attachments, is at Exhibit A.

__________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular  Air  Force  on  5  Dec  01  and  was
discharged in  the  grade  of  senior  airman  on 4  Mar  06  with  service
characterized as honorable. He served a  total  of  four  years  and  three
months on active duty.

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AIR FORCE EVALUATION:

AFLSA/JACC recommends denial.  JACC  states  a  government  contracted  HHGs
carrier caused damaged to the applicant’s property during a military  funded
shipment from Georgia to NY.  The claim was denied based on  lost  potential
carrier recovery  (PCR).   The  applicant  failed  to  notify  the  military
officials of the damage  within  75  days.   According  to  the  applicant’s
statement, the damage was noticed 8 May 06; however the  applicant  did  not
document the damage because the representative failed  to  brief  him.   The
applicant's claim is cognizable under the provisions of  the  PCA.   However
the claim was denied because AFI 51-502, (Personnel and Government  Recovery
Claims) para 2.79 specifies if a claimant prevents Air Force from  recovery,
unless there is a good cause, settlement authorities should  reduce  payment
to the claimant by the amount the Air Force would have otherwise  been  able
to recover from the carrier.  In this case, the Air Force  would  have  been
able to recover the full amount.  The  carrier  industry  and  the  military
have  a  memorandum  of  understanding  (MOU)  on  loss  and  damage  rules.
According to the MOU, loss/damage reported beyond 75 days will  be  presumed
not to have been caused by  the  carrier.   In  order  to  investigate  this
matter, JACC obtained the original claim from the  Rome  Laboratory  in  New
York.  The files contain the carrier’s  copy  of  the  DD  Form  1840.   The
carriers copy shows, in  Section  B,  Block  13,  the  words  “70  days”  is
circled, which indicates the carrier  briefed  the  applicant  of  the  time
limit.  The claim form instructions specify the 70-day time  limit  and  the
words are underlined for emphasis.  The applicant’s carbon copy  of  the  DD
Form 1840 given to him by the carrier shows their copy  has  the  words  “70
days” circled in carbon. Moreover,  the  damage  listed  is  in  ink,  which
indicates it was added some point after the  DD  Form  1840  was  completed.
The claims examiner’s memo for record (MFR) indicates she  investigated  the
claim and was unable to find good cause for the untimely notice.  The  claim
files show the carrier provided  the  DD  Form  1840  to  the  applicant  at
delivery and notified the  applicant  of  the  requirement  to  file  timely
notice.  The claims examiner tried to determine why the  applicant  did  not
provide timely notice considering it is his third claim for HHGs  damage  in
shipment.  Furthermore, the PPO indicated members are informed  on  the  70-
day time limit prior to shipment of their HHGs and the applicant would  have
signed a DD Form 1797, Personal Property  Counseling  Checklist  during  his
pre-move briefings.  The 70-day  time  limit  is  also  briefed  during  the
“Smooth Move” briefing which the  applicant  would  have  been  required  to
attend or read prior to his shipment of HHGs.  JACC states  the  applicant's
claim  was  processed  in  accordance  with  the  Personnel  and  Government
Recovery Claims (PCA) and  AFI  51-502.   Additionally,  JACC  believes  the
claims examiner acted appropriately by not asserting a  demand  against  the
carrier. The applicant was briefed multiple times regarding the 70-day  rule
and has experience filing claims for damaged HHGs from shipment.   Approving
this request for payment under these  circumstances  would  set  a  negative
precedent.

The complete JACC evaluation, with attachments, is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force Evaluation was forwarded to the applicant on 16  Mar
07 for review and comment within 30 days. As of this date, this  office  has
received no response (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 an error or injustice.   We  took  notice  of  the  applicant's
complete submission in judging the merits of the case; however,  it  is  our
opinion  that  guidance  provided  by   the   applicable   instruction   was
appropriately applied in the case.  We are not persuaded by the  applicant's
contentions that he was unaware of the time limitations for filing  a  claim
and do not find his assertions of miscounseling sufficiently  persuasive  to
warrant excusal of his failure to file a timely claim.  Therefore, we  agree
with the Air Force and adopt its rationale as basis for our conclusion  that
the  applicant  has  not  been  the  victim  of  an  error   or   injustice.
Accordingly, absent persuasive evidence to the contrary, we  find  no  basis
upon which to recommend favorable consideration of his request.

________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of 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.

________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2006-
03436 in Executive Session on 25 April 07, under the provisions of  AFI  36-
2603:

                 Ms. Charlene M. Bradley, Panel Chair
            Mr.  Wallace F. Beard Jr., Member
            Ms. Karen A. Holloman, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 2 Nov 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JACC, dated 12 Mar 07.
    Exhibit D.  Letter, SAF/MRBR, dated 16 Mar 07.




                                   CHARLENE M. BRADLEY
                                   Panel Chair