B-139956, JUL. 9, 1959

B-139956, JUL. 9, 1959

TO MR. HARRY L. ARKIN:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 8, 1959, REQUESTING REVIEW OF SETTLEMENT DATED MAY 27, 1959, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD MARCH 1 TO 6, 1959, AND FOR THE COST OF SHIPPING YOUR PRIVATELY OWNED AUTOMOBILE FROM BREMERHAVEN, GERMANY, TO NEW YORK, NEW YORK.

BY ORDERS DATED JANUARY 23, 1959, YOU WERE RELIEVED FROM YOUR OVERSEAS ASSIGNMENT IN LIBYA, AFRICA, AND DIRECTED TO REPORT TO FRANKFURT AIR PASSENGER CENTER, RHEIN/MAIN AIR BASE, GERMANY, NOT LATER THAN 1400 HOURS, FEBRUARY 28, 1959, FOR TRANSPORTATION TO THE UNITED STATES, FOR RELEASE FROM ACTIVE DUTY. THESE ORDERS FURTHER STATED "SHIPMENT OF POV VIA SECONDARY PORT OF BREMERHAVEN, GERMANY AUTHORIZED BY 17AF MESSAGE DM-4 43616, 24 DEC. 58.'

IT APPEARS THAT PRIOR TO MAKING ARRANGEMENTS ON NOVEMBER 30, 1958, FOR THE PURCHASE OF A NEW CAR IN GERMANY FOR DELIVERY TO YOU EN ROUTE TO THE UNITED STATES, YOU WERE ASSURED AT YOUR OLD STATION THAT TRANSOCEAN SHIPMENT OF SUCH VEHICLE FROM BREMERHAVEN, GERMANY, TO THE UNITED STATES WOULD BE AT GOVERNMENT EXPENSE. WHEN YOU PRESENTED YOUR CAR AT THE PORT IN GERMANY FOR SHIPMENT THE TRANSPORTATION OFFICER ADVISED YOU THAT HE COULD NOT ACCEPT IT BECAUSE AIR FORCE LETTER NO. 75 4, DATED JANUARY 14, 1959, ISSUED BY THE DEPARTMENT OF THE AIR FORCE, WASHINGTON, D.C., PROHIBITED SHIPMENT OF A PRIVATELY OWNED VEHICLE FROM A PORT OTHER THAN THE PORT SERVING THE MEMBER'S OLD OVERSEAS STATION. ATTEMPTS WERE MADE TO OBTAIN SPECIAL PERMISSION TO SHIP YOUR AUTOMOBILE AT GOVERNMENT EXPENSE AS A RESULT OF WHICH YOUR DEPARTURE DATE WAS EXTENDED TO MARCH 6, 1959, BY SPECIAL ORDERS NO. W-110, DATED FEBRUARY 28, 1959, WITH "6 DAYS PERMISSIVE TDY AT NO EXPENSE TO THE GOVT STARTING ON OR ABOUT 28 FEB 59.' THE REQUEST FOR PERMISSION TO MAKE THE SHIPMENT FOR YOU WAS EXPRESSLY DENIED BY HEADQUARTERS, UNITED STATES AIR FORCE, WHEREUPON YOU HAD YOUR CAR SHIPPED AT PERSONAL EXPENSE ON A VESSEL OF FOREIGN REGISTRY. YOUR CLAIM FOR REIMBURSEMENT OF THE EXPENSES SO INCURRED, TOGETHER WITH PER DIEM FOR THE DELAY OF SIX DAYS AUTHORIZED INCIDENT TO YOUR EFFORTS TO OBTAIN SHIPMENT OF YOUR CAR AT PUBLIC EXPENSE, WAS DENIED BY THE SETTLEMENT OF MAY 27, 1959. IN URGING PAYMENT OF YOUR CLAIM, YOU CONTEND, IN SUBSTANCE, THAT AIR FORCE LETTER NO. 75-4, JANUARY 14, 1959, HAS NO APPLICATION BECAUSE IT IS DATED SUBSEQUENT TO DECEMBER 1959 WHEN YOUR REQUEST FOR SHIPMENT OF A CAR WAS ACTUALLY APPROVED BY HEADQUARTERS, SEVENTEENTH AIR FORCE, AND BECAUSE FAILURE TO SHIP YOUR CAR CONTRAVENED A RIGHT VESTED IN YOU BY SECTION 617 OF THE NATIONAL MILITARY ESTABLISHMENT APPROPRIATION ACT OF 1950, 63 STAT. 1020.

THE STATUTE CITED BY YOU PROVIDES AS FOLLOWS:

"WHEN PERSONNEL OF THE AIR FORCE OR ARMY ARE ORDERED TO MAKE A PERMANENT CHANGE OF STATION, MOTOR VEHICLES OWNED BY THEM FOR THEIR PERSONAL USE (NOT TO EXCEED ONE VEHICLE PER PERSON) MAY BE TRANSPORTED TO THEIR NEW POSTS OF DUTY ON GOVERNMENT-OWNED VESSELS.'

THIS STATUTE IS NOT SELF-EXECUTING BUT REQUIRES THAT IMPLEMENTING REGULATIONS BE ISSUED BY THE SECRETARIES OF THE SERVICES INVOLVED. THE AIR FORCE LETTER NO. 75-4, JANUARY 14, 1959, WAS NOT THE INITIAL ACTION OF THE SECRETARY OF THE AIR FORCE UNDER THIS STATUTE WITH RESPECT TO THE SHIPMENT OF PRIVATELY OWNED VEHICLES FROM SECONDARY PORTS BUT WAS A RESTATEMENT OF AIR FORCE LETTER NO. 75-4, TO THE SAME EFFECT, ISSUED JULY 23, 1958. SINCE THE PROVISION IN YOUR ORDERS OF JANUARY 23, 1959,PURPORTING TO AUTHORIZE SHIPMENT OF YOUR CAR FROM THE SECONDARY PORT OF BREMERHAVEN WAS CONTRARY TO THEN CONTROLLING REGULATIONS IT IS WITHOUT EFFECT. HENCE, IRRESPECTIVE OF THE PROVISIONS OF ANY SUBSEQUENT REGULATIONS, THERE IS NO LEGAL BASIS UPON WHICH WE MAY ALLOW YOUR CLAIM FOR REIMBURSEMENT FOR COSTS INCURRED BY YOU FOR TRANSOCEAN SHIPMENT OF YOUR AUTOMOBILE.

CONCERNING YOUR CLAIM FOR PER DIEM FOR THE PERIOD MARCH 1 TO 6, 1959, SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS. JOINT TRAVEL REGULATIONS PROMULGATED UNDER THAT ACT PROVIDE (PARAGRAPH 3050-1) THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHEN ACTUALLY IN A TRAVEL STATUS WHILE PERFORMING TRAVEL ON PUBLIC BUSINESS UNDER COMPETENT ORDERS. PARAGRAPH 6453 OF THE SAME REGULATIONS PROVIDES THAT ORDERS PERMITTING A MEMBER TO TRAVEL AS DISTINGUISHED FROM ORDERS DIRECTING HIM TO TRAVEL DO NOT ENTITLE HIM TO EXPENSES OF TRAVEL.

THE ORDERS OF FEBRUARY 28, 1959, AMENDED YOUR ORDERS OF JANUARY 23, 1959, BY EXTENDING YOUR DEPARTURE DATE FOR THE UNITED STATES TO MARCH 6, 1959, SO THAT YOU COULD REMAIN OVERSEAS PENDING RECEIPT OF REPLY TO THE TRANSPORTATION OFFICER'S REQUEST FOR SPECIAL PERMISSION TO SHIP YOUR AUTOMOBILE. SINCE THE POSTPONEMENT OF YOUR DEPARTURE DATE WAS ORDERED FOR YOUR PERSONAL BENEFIT AND NOT FOR THE PURPOSES OF PUBLIC BUSINESS, PAYMENT OF PER DIEM ALLOWANCE FOR THE PERIOD INVOLVED WOULD NOT BE AUTHORIZED. CF. 30 COMP. GEN. 19.