B-156892, MAR. 4, 1966, 45 COMP. GEN. 544

B-156892, MAR. 4, 1966, 45 COMP. GEN. 544

TRANSPORTATION - AUTOMOBILES - MILITARY PERSONNEL - TO OTHER THAN NEW DUTY STATION - ORDERS CANCELED, ETC. THE RESHIPMENT OF TRANSSHIPMENT OF A PRIVATELY OWNED MOTOR VEHICLE OF A MEMBER OF THE UNIFORMED SERVICES WHOSE ORDERS FOR OVERSEAS DUTY ARE AMENDED, CANCELED, OR REVOKED NOT FALLING WITHIN THE PURVIEW OF THE ACT OF DECEMBER 23, 1963 (37 U.S.C. 406A), PROVIDING REIMBURSEMENT TO A MEMBER FOR THE TRAVEL OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD GOODS UNDER PERMANENT CHANGE-OF-STATION ORDERS SUBSEQUENTLY MODIFIED, CANCELED, OR REVOKED, MAY NOT BE AUTHORIZED UNDER THE PRINCIPLE APPLIED PRIOR TO THE ACT, PURSUANT TO EXECUTIVE ORDER NO. 10053, DATED APRIL 20, 1949, THAT THE GOVERNMENT HAVING ASSUMED CONTROL OF A SHIPMENT OF HOUSEHOLD GOODS WAS RESPONSIBLE UPON AMENDMENT OR CANCELLATION OF ORDERS FOR DELIVERY TO THE PROPER STATION, THE TERM "HOUSEHOLD GOODS" AS DEFINED IN PARAGRAPH M8000- 2.2 OF THE JOINT TRAVEL REGULATIONS NOT INCLUDING A PRIVATELY OWNED VEHICLE, AND 10 U.S.C. 2634 PROVIDING FOR OCEAN SHIPMENT OF A VEHICLE INCIDENT TO A PERMANENT CHANGE OF STATION, SILENT AS TO SHIPMENT OF THE VEHICLE WHEN ORDERS ARE AMENDED, CANCELED, OR REVOKED, SHIPMENT AT GOVERNMENT EXPENSE MAY NOT BE AUTHORIZED.

TO THE SECRETARY OF THE NAVY, MARCH 4, 1966:

FURTHER REFERENCE IS MADE TO LETTER OF DECEMBER 30, 1965, FROM THE UNDER SECRETARY OF THE NAVY, FORWARDED HERE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, REQUESTING A DECISION WHETHER CHAPTER 11, VOLUME 1, JOINT TRAVEL REGULATIONS, MAY BE AMENDED TO AUTHORIZE, IN THE CASE OF A PRIVATELY OWNED MOTOR VEHICLE WHICH HAS BEEN SHIPPED AFTER RECEIPT OF COMPETENT CHANGE OF STATION ORDERS, THE FORWARDING OR RETURN AT GOVERNMENT EXPENSE OF THE VEHICLE TO THE PORT NEAREST THE MEMBER'S CURRENT DUTY STATION WHEN SUCH ORDERS ARE SUBSEQUENTLY AMENDED, CANCELED, OR REVOKED. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 66-2 BY THE PER DIEM, TRAVEL, AND TRANSPORTATION COMMITTEE.

THE UNDER SECRETARY SAYS THAT THE CURRENT PROVISIONS (PARAGRAPH M11002) OF THE JOINT TRAVEL REGULATIONS, VOLUME 1, CHAPTER 11, IMPLEMENTING 10 U.S.C. 2634, PROVIDE FOR SHIPMENT OF ONE PRIVATELY OWNED MOTOR VEHICLE TO THE MEMBER'S NEW DUTY STATION UPON A PERMANENT CHANGE OF STATION TO, FROM, OR BETWEEN PLACES OUTSIDE THE UNITED STATES OR UPON OFFICIAL CHANGE IN HOME YARD OR HOME PORT OF THE VESSEL TO WHICH ASSIGNED. HE POINTS OUT, HOWEVER, THAT THIS STATUTORY ENTITLEMENT DOES NOT EXTEND TO TRANSSHIPMENT OF A PRIVATELY OWNED VEHICLE WHEN THE ORDERS ARE SUBSEQUENTLY AMENDED, CANCELED, OR REVOKED. WHILE PARAGRAPHS M7051 AND M8014 OF THE JOINT TRAVEL REGULATIONS, IMPLEMENTING PUBLIC LAW 88-238, APPROVED DECEMBER 23, 1963, 37 U.S.C. 406A, NOW AUTHORIZE REIMBURSEMENT TO A MEMBER FOR TRAVEL OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD GOODS WHEN PERMANENT CHANGE OF STATION ORDERS ARE SUBSEQUENTLY MODIFIED, CANCELED, OR REVOKED, THE UNDER SECRETARY POINTS OUT THAT PRIOR TO SUCH STATUTORY AUTHORITY, THE JOINT TRAVEL REGULATIONS CONTAINED A PROVISION FOR FORWARDING OR RETURNING HOUSEHOLD GOODS TO PROPER DESTINATION UPON AMENDMENT OR CANCELLATION OF ORDERS WITHOUT ANY SPECIFIC COVERING LEGISLATION. THE FORWARDING OR RETURN OF SUCH HOUSEHOLD GOODS WAS BASED ON THE PRINCIPLE, THE UNDER SECRETARY SAYS, THAT ONCE THE GOVERNMENT ASSUMED CONTROL OF THE HOUSEHOLD GOODS FOR SHIPMENT, THE MEMBER LOST HIS CONTROL THERE OVER AND IN EQUITY AND GOOD CONSCIENCE IT WAS INCUMBENT UPON THE GOVERNMENT TO SHIP THEM TO THE PROPER STATION. THIS PRINCIPLE, IT IS STATED, WOULD BE APPLIED IN AMENDING THE JOINT TRAVEL REGULATIONS TO PROVIDE FOR SHIPMENT OF A PRIVATELY OWNED VEHICLE UNDER THE SAME CIRCUMSTANCES.

THE STATUTORY AUTHORITY FOR OCEAN SHIPMENT OF A PRIVATELY OWNED VEHICLE OF MEMBERS OF THE UNIFORMED SERVICES IS CONTAINED IN 10 U.S.C. 2634, AS AMENDED BY THE ACT OF JULY 30, 1965, PUBLIC LAW 89-101, 79 STAT. 425, WHICH PROVIDES IN PERTINENT PART, AS FOLLOWS:

SEC. 2634. MOTOR VEHICLES; FOR MEMBERS ON CHANGE OF PERMANENT STATION

(A) WHEN A MEMBER OF AN ARMED FORCE IS ORDERED TO MAKE A CHANGE OF PERMANENT STATION, ONE MOTOR VEHICLE OWNED BY HIM AND FOR HIS PERSONAL USE OR THE USE OF HIS DEPENDENTS MAY, UNLESS A MOTOR VEHICLE OWNED BY HIM WAS TRANSPORTED IN ADVANCE OF THAT CHANGE OF PERMANENT STATION UNDER SECTION (406) (H) OF TITLE 37, BE TRANSPORTED, AT THE EXPENSE OF THE UNITED STATES, TO HIS NEW STATION OR SUCH OTHER PLACE AS THE SECRETARY CONCERNED MAY AUTHORIZE---

(1) ON A VESSEL OWNED, LEASED, OR CHARTERED BY THE UNITED STATES;

(2) BY PRIVATELY OWNED AMERICAN SHIPPING SERVICES; OR

(3) BY FOREIGN-FLAG SHIPPING SERVICES IF SHIPPING SERVICES DESCRIBED IN CLAUSES (1) AND (2) ARE NOT REASONABLY AVAILABLE.

WHEN THE SECRETARY CONCERNED, OR HIS DESIGNEE, DETERMINES THAT A REPLACEMENT FOR THAT MOTOR VEHICLE IS NECESSARY FOR REASONS BEYOND THE CONTROL OF THE MEMBER AND IS IN THE INTEREST OF THE UNITED STATES, AND HE APPROVES THE TRANSPORTATION IN ADVANCE, ONE ADDITIONAL MOTOR VEHICLE OF THE MEMBER MAY BE SO TRANSPORTED.

(B) IN THIS SECTION,"CHANGE OF PERMANENT STATION" MEANS THE TRANSFER OR ASSIGNMENT OF A MEMBER OF THE ARMED FORCES FROM ONE PERMANENT STATION TO ANOTHER. IT INCLUDES THE CHANGE FROM HOME OR FROM THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY TO FIRST STATION UPON APPOINTMENT, CALL TO ACTIVE DUTY, ENLISTMENT, OR INDUCTION, AND FROM LAST DUTY STATION TO HOME OR TO PLACE FROM WHICH ORDERED TO ACTIVE DUTY UPON SEPARATION FROM THE SERVICE, PLACEMENT UPON THE TEMPORARY DISABILITY RETIRED LIST, RELEASE FROM ACTIVE DUTY, OR RETIREMENT. IT ALSO INCLUDES AN AUTHORIZED CHANGE IN HOME YARD OR HOME PORT OF A VESSEL.

UNDER THAT LAW AND CHAPTER 11 OF THE JOINT TRAVEL REGULATIONS IMPLEMENTING THAT LAW, A MEMBER WHO IS ORDERED TO MAKE A CHANGE OF PERMANENT STATION IS ENTITLED TO OCEAN SHIPMENT OF HIS PRIVATELY OWNED VEHICLE AT GOVERNMENT EXPENSE "TO HIS NEW STATION OR SUCH OTHER PLACE AS THE SECRETARY CONCERNED MAY AUTHORIZE.' THE LAW IS SILENT AS TO SHIPMENT OF THE VEHICLE WHEN THE MEMBER'S ORDERS ARE SUBSEQUENTLY AMENDED, CANCELED, OR REVOKED.

THE AUTHORITY FOR PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES AND TRANSPORTATION OF DEPENDENTS, BAGGAGE AND HOUSEHOLD EFFECTS UNDER ORDERS DIRECTING A CHANGE OF STATION WHICH ARE SUBSEQUENTLY CANCELED, REVOKED, OR MODIFIED, IS CONTAINED IN 37 U.S.C. 406A, AS ADDED BY THE ACT OF DECEMBER 23, 1963, PUBLIC LAW 88-238, AND PROVIDES IN PERTINENT PART AS FOLLOWS:

406A. TRAVEL AND TRANSPORTATION ALLOWANCES: AUTHORIZED FOR TRAVEL PERFORMED UNDER ORDERS THAT ARE CANCELED, REVOKED, OR MODIFIED

UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES UNDER SECTION 404 OF THIS TITLE, AND TO TRANSPORTATION OF HIS DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS UNDER SECTIONS 406 AND 409 OF THIS TITLE, IF OTHERWISE QUALIFIED, FOR TRAVEL PERFORMED BEFORE THE EFFECTIVE DATE OF ORDERS THAT DIRECT HIM TO MAKE A CHANGE OF STATION AND THAT ARE LATER---

(1) CANCELED, REVOKED, OR MODIFIED TO DIRECT HIM TO RETURN TO THE STATION FROM WHICH HE WAS BEING TRANSFERRED; OR

(2) MODIFIED TO DIRECT HIM TO MAKE A DIFFERENT CHANGE OF STATION.

WE RECOGNIZE THAT FOR YEARS PRIOR TO THE ENACTMENT OF THE ABOVE LAW (37 U.S.C. 406A), THE JOINT TRAVEL REGULATIONS (PARAGRAPH 8014, AND FORMERLY PARAGRAPH 8008) AUTHORIZED THE FORWARDING OR RETURN OF HOUSEHOLD GOODS SHIPPED BEFORE THE EFFECTIVE DATE OF CHANGE OF STATION ORDERS TO PROPER DESTINATION AT GOVERNMENT EXPENSE UPON AMENDMENT OR CANCELLATION OF THE ORDERS. THERE IS FOR NOTING, HOWEVER, THAT SUCH AUTHORITY WAS CARRIED OVER FROM THAT PROMULGATED IN PARAGRAPH 13D, EXECUTIVE ORDER NO. 10053, APRIL 20, 1949, AND IN EFFECT UNTIL THE JOINT TRAVEL REGULATIONS WERE ISSUED, WHICH SPECIFICALLY PROVIDED THAT SHIPMENT OF HOUSEHOLD GOODS, MADE AFTER RECEIPT OF COMPETENT CHANGE-OF STATION ORDERS BUT BEFORE THE EFFECTIVE DATE THEREOF, WOULD BE FORWARDED OR RETURNED TO PROPER DESTINATION AT GOVERNMENT EXPENSE IN CASE SUCH ORDERS WERE SUBSEQUENTLY AMENDED OR CANCELED, PROVIDED SUCH SHIPMENT WAS MADE IN THE BEST FORESEEABLE INTEREST OF THE GOVERNMENT AND THE OWNER. SEE 39 COMP. GEN. 522, 524. THE FACT THAT FOR YEARS AUTHORITY TO FORWARD OR RETURN HOUSEHOLD GOODS UPON AMENDMENT OR CANCELLATION OF ORDERS WAS RECOGNIZED AFFORDS NO BASIS TO CONCLUDE, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, THAT SUCH AUTHORITY, OR THE PRINCIPLE BEHIND SUCH AUTHORITY, SHOULD BE EXTENDED TO INCLUDE THE FORWARDING OR RETURN OF A PRIVATELY OWNED VEHICLE IN SUCH CIRCUMSTANCES. MOREOVER, IT HAS LONG BEEN RECOGNIZED THAT THE TERM "HOUSEHOLD GOODS" AS DEFINED IN PARAGRAPH M8000- 2.2, JOINT TRAVEL REGULATIONS, DOES NOT INCLUDE A PRIVATELY OWNED MOTOR VEHICLE.

IN OUR DECISION OF JULY 24, 1964, B-153872, CITED IN THE UNDER SECRETARY'S LETTER, THERE WAS CONSIDERED, AMONG OTHER THINGS, THE QUESTION WHETHER THE PROVISIONS OF 37 U.S.C. 406A (PUBLIC LAW 88-238) CONSTITUTED AUTHORITY TO REIMBURSE THE MEMBER FOR SHIPMENT OF HIS PRIVATELY OWNED VEHICLE UNDER ORDERS WHICH WERE LATER REVOKED. IN THAT DECISION WE SAID THAT THE PURPOSE OF THE ACT OF DECEMBER 23, 1963, IS TO REIMBURSE A MEMBER FOR EXPENSES AS PROVIDED IN SECTIONS 404, 406 AND 409 OF TITLE 37 OF THE U.S.C. FOR TRAVEL PERFORMED BY HIMSELF AND THE TRANSPORTATION OF HIS DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS WHEN IT IS SHOWN THAT SUCH EXPENSES WERE INCURRED PRIOR TO THE EFFECTIVE DATE OF THE ORDERS DIRECTING HIM TO MAKE A CHANGE OF STATION WHICH WERE LATER CANCELED, REVOKED, OR MODIFIED TO DIRECT HIM TO RETURN TO THE STATION FROM WHICH HE WAS TRANSFERRED, OR THE ORDERS WERE MODIFIED TO DIRECT HIM TO MAKE A DIFFERENT CHANGE OF STATION. WE POINTED OUT THAT ENTITLEMENT OF THE MEMBER UNDER THAT ACT IS LIMITED TO TRAVEL AND TRANSPORTATION ALLOWANCES SPECIFIED IN SECTIONS 404, 406 AND 409 OF TITLE 37. WE CONCLUDED THAT SINCE THE SHIPMENT OF A MEMBER'S PRIVATELY OWNED VEHICLE AT GOVERNMENT EXPENSE TO HIS NEW STATION IS NOT ONE OF THE "TRAVEL AND TRANSPORTATION ALLOWANCES" UNDER SECTIONS 404, 406 AND 409 OF TITLE 37, THE MEMBER'S CASE DID NOT FALL WITHIN THE PURVIEW OF THE ACT OF DECEMBER 23, 1963.

THE CONCLUSION REACHED IN THE ABOVE DECISION OF JULY 24, 1964, IS STRONGLY SUPPORTED BY THE LANGUAGE OF 37 U.S.C. 406A AND ITS LEGISLATIVE HISTORY. SECTION 406A SPECIFICALLY REFERS TO THOSE TRAVEL AND TRANSPORTATION ALLOWANCE SECTIONS, NAMELY, 404, 406 AND 409 OF TITLE 37, THE ALLOWANCES OF WHICH ARE AUTHORIZED TO BE PAID FOR TRAVEL PERFORMED UNDER ORDERS THAT ARE CANCELED, REVOKED, OR MODIFIED. GENERALLY, SECTION 404 GOVERNS THE MEMBER'S PERSONAL TRAVEL AND TRANSPORTATION ALLOWANCES; SECTION 406 GOVERNS DEPENDENT'S TRAVEL AND SHIPMENT OF BAGGAGE AND HOUSEHOLD EFFECTS, AND SECTION 409 IS THE AUTHORITY FOR TRANSPORTING A HOUSE TRAILER OR MOBILE DWELLING. IT IS CLEAR THAT 37 U.S.C. 406A LIMITS ENTITLEMENT TO THOSE SPECIFIC TRAVEL AND TRANSPORTATION ALLOWANCES THERE MENTIONED, AND THE FORWARDING OR RETURN SHIPMENT OF A PRIVATELY OWNED AUTOMOBILE AT GOVERNMENT EXPENSE UNDER ORDERS WHICH ARE SUBSEQUENTLY CANCELED, REVOKED, OR MODIFIED, IS NOT ONE OF THE TRAVEL AND TRANSPORTATION ALLOWANCES CONTEMPLATED BY THAT SECTION. IN THIS CONNECTION, SEE ENCLOSED COPY OF DECISION OF MARCH 1, 1965, 44 COMP. GEN. 522, HOLDING, IN SUBSTANCE, THAT A DISLOCATION ALLOWANCE WHICH IS AUTHORIZED UNDER SECTION 407 OF TITLE 37 DOES NOT COME WITHIN THE PURVIEW OF 37 U.S.C. 406A. HAD CONGRESS INTENDED TO AUTHORIZE THE RESHIPMENT OR TRANSSHIPMENT OF A PRIVATELY OWNED VEHICLE BECAUSE OF THE CANCELLATION OR REVOCATION OF ORDERS, IT APPEARS THAT IT WOULD HAVE DONE SO IN CLEAR AND UNMISTAKABLE LANGUAGE. IN THIS CONNECTION, IN AUTHORIZING THE ADVANCE MOVEMENT OF DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES FROM OUTSIDE THE UNITED STATES TO A LOCATION INSIDE THE UNITED STATES, CONGRESS CONSIDERED IT APPROPRIATE AND SPECIFICALLY INCLUDED AUTHORITY FOR ADVANCE SHIPMENT OF A PRIVATELY OWNED VEHICLE IN SUCH CIRCUMSTANCES. SEE SECTION 406 (H) (2) OF TITLE 37 AS ADDED BY PUBLIC LAW 88-431, APPROVED AUGUST 14, 1964, 78 STAT. 439, AND AMENDED BY SECTION 2 OF PUBLIC LAW 89-101 APPROVED JULY 30, 1965, 79 STAT. 425.

IN VIEW OF THE FOREGOING AND IN THE LIGHT OF SECTION 209 OF THE ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 73C, DECLARING THAT AFTER JUNE 30, 1932, NO LAW OR REGULATION AUTHORIZING OR PERMITTING THE TRANSPORTATION AT GOVERNMENT EXPENSE OF THE EFFECTS OF OFFICERS, EMPLOYEES OR OTHER PERSONS, SHALL BE CONSTRUED OR APPLIED AS INCLUDING OR AUTHORIZING THE TRANSPORTATION OF AN AUTOMOBILE, IT IS OUR VIEW THAT THERE IS NO PROPER BASIS FOR AMENDING THE JOINT TRAVEL REGULATIONS TO PERMIT THE FORWARDING OR RETURN OF A PRIVATELY OWNED VEHICLE AT GOVERNMENT EXPENSE IN THE CIRCUMSTANCES STATED WHEN THE MEMBER'S ORDERS ARE SUBSEQUENTLY AMENDED, CANCELED, OR REVOKED.