B-100383, MAR 23, 1951

B-100383: Mar 23, 1951

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PRECIS-UNAVAILABLE THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 27. REQUESTING AN OPINION AS TO WHETHER FUNDS WHICH HAVE BEEN ALLOCATED TO THE DEPARTMENT OF THE ARMY PURSUANT TO THE ACT OF MAY 22. ARE AVAILABLE TO PAY THE COST OF COMMERCIAL SHIPMENT OF PRIVATE AUTOMOBILES OF MISSION MEMBERS TO GREECE AND TURKEY. ISSUED EXECUTIVE ORDER 9857 WHEREIN IT IS PROVIDED THAT: "SUBJECT TO SUCH POLICIES AS THE PRESIDENT MAY FROM TIME TO TIME PRESCRIBE. THE SECRETARY OF STATE IS HEREBY AUTHORIZED. IT IS EXPLAINED THAT THE USE OF PRIVATE AUTOMOBILES ADMINISTRATIVELY HAS BEEN DEEMED ESSENTIAL TO THE SUCCESSFUL OPERATION OF THE MILITARY MISSION TO TURKEY BECAUSE OF THE LACK OF NORMAL COMMERCIAL TRANSPORTATION FACILITIES AND THE INADEQUACY OF OTHER MEANS OF TRANSPORTATION.

B-100383, MAR 23, 1951

PRECIS-UNAVAILABLE

THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 27, 1950, REQUESTING AN OPINION AS TO WHETHER FUNDS WHICH HAVE BEEN ALLOCATED TO THE DEPARTMENT OF THE ARMY PURSUANT TO THE ACT OF MAY 22, 1947, 61 STAT. 103, AS AMENDED, 22 U.S.C. 1401-1410, ARE AVAILABLE TO PAY THE COST OF COMMERCIAL SHIPMENT OF PRIVATE AUTOMOBILES OF MISSION MEMBERS TO GREECE AND TURKEY.

THE SAID ACT OF MAY 22, 1947, 61 STAT. 104, PROVIDES IN PERTINENT PART AS FOLLOWS:

"THAT, NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, THE PRESIDENT MAY FROM TIME TO TIME WHEN HE DEEMS IT IN THE INTEREST OF THE UNITED STATES FURNISH ASSISTANCE TO GREECE AND TURKEY, UPON REQUEST OF THEIR GOVERNMENTS, AND UPON TERMS AND CONDITIONS DETERMINED BY HIM *** BY INCURRING AND DEFRAYING NECESSARY EXPENSES, INCLUDING ADMINISTRATIVE EXPENSES AND EXPENSES FOR COMPENSATION OF PERSONNEL, IN CONNECTION WITH THE CARRYING OUT OF THE PROVISIONS OF THIS ACT."

SECTION 5 OF THE ABOVE ACT 61 STAT. 105, AUTHORIZED THE PRESIDENT TO UTILIZE THE FACILITIES OF ANY DEPARTMENT OR AGENCY OF THE GOVERNMENT AND TO MAKE RULES AND REGULATIONS NECESSARY TO CARRY OUT THE INTENT OF THE STATUTE. PURSUANT TO THIS PROVISION THE PRESIDENT UNDER DATE OF MAY 22, 1947, ISSUED EXECUTIVE ORDER 9857 WHEREIN IT IS PROVIDED THAT:

"SUBJECT TO SUCH POLICIES AS THE PRESIDENT MAY FROM TIME TO TIME PRESCRIBE, THE SECRETARY OF STATE IS HEREBY AUTHORIZED, THROUGH SUCH DEPARTMENTS, AGENCIES, AND INDEPENDENT ESTABLISHMENTS OF THE GOVERNMENT AS HE MAY DESIGNATE, TO EXCERCISE ANY POWER OR AUTHORITY CONFERRED UPON THE PRESIDENT BY THE ACT, INCLUDING EXPENDITURE OF FUNDS MADE AVAILABLE FOR THE PURPOSES OF THE ACT."

IT IS EXPLAINED THAT THE USE OF PRIVATE AUTOMOBILES ADMINISTRATIVELY HAS BEEN DEEMED ESSENTIAL TO THE SUCCESSFUL OPERATION OF THE MILITARY MISSION TO TURKEY BECAUSE OF THE LACK OF NORMAL COMMERCIAL TRANSPORTATION FACILITIES AND THE INADEQUACY OF OTHER MEANS OF TRANSPORTATION; THE DISTANCES INVOLVED BETWEEN RESIDENCES, PLACES OF DUTY, AND MEDICAL AND SHOPPING FACILITIES; AND EXISTING RESTRICTIONS ON THE USE OF GOVERNMENT AUTOMOBILES WHICH MAKE THEIR USE IMPRACTICABLE.

WHILE IT IS STATED THAT, IN VIEW OF THE ABOVE CONDITIONS AND BECAUSE OF THE NONAVAILABILITY OF GOVERNMENT TRANSPORT BETWEEN THE UNITED STATES AND TURKEY, COMMERCIAL TRANSPORTATION OF PRIVATE AUTOMOBILES TO TURKEY HAS BEEN AUTHORIZED FOR MEMBERS OF THE MISSION AND A NUMBER OF SHIPMENTS HAVE TAKEN PLACE, QUESTION ARISES AS TO THE PROPRIETY OF SUCH SHIPMENTS BECAUSE OF THE PROVISIONS OF SECTION 209 OF THE ACT OF JUNE 30, 1932, 47 STAT. 405, AS AMENDED (5 U.S.C. 73C), WHICH READS IN PERTINENT PART, AS FOLLOWS:

"HEREAFTER, 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 ***."

UNDER THE BROAD PROVISIONS OF THE "NOTWITHSTANDING CLAUSE" CONTAINED IN THE ACT OF MAY 22, 1947, SUPRA, AND THE POWER CONFERRED UPON THE SECRETARY OF STATE BY EXECUTIVE ORDER 9857, THE SECRETARY OF STATE MAY WAIVE, SUSPEND, OR DISREGARD THOSE LAWS THE PROVISIONS OF WHICH MIGHT PROHIBIT OR UNDULY INTERFERE WITH THE CARRYING OUT OF THE PURPOSE INTENDED TO BE ACCOMPLISHED BY THE SAID ACT. CF. 22 COMP. GEN. 400.

IN THIS CONNECTION PARAGRAPH 023.3 OF THE DEPARTMENT OF STATE MANUAL - AID TO GREECE, PROVIDES THAT:

"THE ESTABLISHMENT OF SPECIAL REGULATIONS, EXEMPTIONS AND WAIVERS UNDER THE 'NOTWITHSTANDING CLAUSE' MUST BE SPECIFICALLY JUSTIFIED IN WRITING AND APPROVED UNDER THE AUTHORITY OF THE SECRETARY OF STATE OR BY THE CHIEF OF MISSION CITING THE AUTHORITY GRANTED BY PUBLIC LAW 75. *** ANY REGULATIONS ESTABLISHED UNDER AUTHORITY OF THE 'NOTWITHSTANDING CLAUSE' MUST BE FILED WITH THE GENERAL ACCOUNTING OFFICE THROUGH THE DEPARTMENT. ALL VOUCHERS SUBMITTED UNDER SUCH REGULATIONS MUST CONTAIN REFERENCE THERETO. ***"

PARAGRAPH 023.4 OF THE SAID MANUAL PROVIDES:

"ANY EMERGENCY UNUSUAL, OR ADDITIONAL EXPENDITURE NOT SPECIFICALLY AUTHORIZED IN ANY STATUTES OR REGULATIONS, MAY, UPON JUSTIFICATION SUBMITTED TO THE SECRETARY, BE AUTHORIZED OR APPROVED BY HIM IF HE DEEMS IT NECESSARY OR EXPEDIENT. MODIFICATIONS OR ADDITIONS TO REGULAR FEDERAL STATUTES AND REGULATIONS PERTAINING TO TRAVEL ARE PRESCRIBED IN THE REGULATIONS OF THIS MANUAL. UNLESS SPECIFICALLY AUTHORIZED BY THOSE STATUTES OR REGULATIONS, NO EXPENDITURE MAY BE MADE FOR ANY PURPOSE."

THERE IS FOUND NO PROVISION IN THE MANUAL FOR THE PAYMENT OF THE COST OF SHIPPING PERSONAL AUTOMOBILES. IN FACT, PARAGRAPH 251.31 OF THE MANUAL SPECIFICALLY EXCLUDES AUTOMOBILES FROM THE DEFINITION OF "EFFECTS" OTHERWISE AUTHORIZED TO BE SHIPPED AT THE EXPENSE OF THE GOVERNMENT.

IN VIEW OF THE FOREGOING IT APPEARS THAT PRIVATELY OWNED AUTOMOBILES OF MISSION MEMBERS MAY BE SHIPPED TO GREECE AT GOVERNMENT EXPENSE ONLY IF SPECIFICALLY AUTHORIZED BY THE SECRETARY OF STATE OR THE CHIEF OF MISSION AND REGULATIONS HAVE BEEN ESTABLISHED UNDER AUTHORITY OF THE "NOTWITHSTANDING CLAUSE" AS CONTEMPLATED BY PARAGRAPH 023.3 OF THE MANUAL.

THERE IS NO RECORD IN THIS OFFICE OF THE ISSUANCE OF A SIMILAR MANUAL DIRECTED TO OPERATIONS UNDER THE PROGRAM FOR AID TO TURKEY. HOWEVER, EXAMINATION OF DOCUMENTS RELATING TO THE DELEGATION OF AUTHORITY PURSUANT TO THE ACT OF MAY 22, 1947, WHICH HAVE BEEN FURNISHED THIS OFFICE, DISCLOSES THAT THE CHIEF OF THE AMERICAN MISSION FOR AID TO TURKEY IS AUTHORIZED TO EXERCISE ANY POWER OR AUTHORITY CONFERRED UPON THE SECRETARY OF STATE BY EXECUTIVE ORDER 9857, SUPRA, AND THAT THE CHIEFS OF THE ARMY, NAVY, AND AIR GROUPS WITHIN THE MISSION ARE RESPONSIBLE TO THE CHIEF OF THE MISSION.

ACCORDINGLY, IN THE ABSENCE OF REGULATIONS ISSUED BY THE DEPARTMENT OF STATE EXCLUDING THE SHIPMENT OF AUTOMOBILES AS PART OF THE EFFECTS OF PERSONNEL OF THE MISSION WHO ARE ORDERED TO TURKEY, AND SPECIFICALLY REQUIRING A WAIVER UNDER THE "NOTWITHSTANDING CLAUSE," WHERE THE CHIEF OF THE MISSION TO TURKEY DEEMS IT NECESSARY TO THE ACCOMPLISHMENT OF HIS MISSION, THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO THE PAYMENT OF THE COST OF COMMERCIAL SHIPMENT OF PRIVATE AUTOMOBILES OF MISSION MEMBERS TO TURKEY.