B-140615, OCT. 5, 1959

B-140615: Oct 5, 1959

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KUGLEN: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 12. YOU WERE RELIEVED FROM ACTIVE DUTY AT WHEELER AIR FORCE BASE. YOUR CLAIM FOR SUCH EXPENSE WAS PREVIOUSLY DISALLOWED SINCE NO PROVISION OF LAW WAS FOUND TO PERMIT REIMBURSEMENT OF EXPENSES INCURRED BY A MEMBER IN TRANSPORTATION OF HIS AUTOMOBILE FROM AN OVERSEAS LOCATION TO A UNITED STATES PORT BY COMMERCIAL CARRIER. THE AUTHORITY FOR TRANSPORTATION OF A PRIVATELY OWNED VEHICLE OF AIR FORCE MEMBERS IS FOUND IN SECTION 617 OF THE NATIONAL MILITARY ESTABLISHMENT APPROPRIATION ACT OF 1950. WHICH IS AS FOLLOWS: "WHEN PERSONNEL OF THE AIR FORCE OR ARMY ARE ORDERED TO MAKE A PERMANENT CHANGE OF STATION. THIS STATUTE IS NOT SELF-EXECUTING.

B-140615, OCT. 5, 1959

TO MR. ROBERT R. KUGLEN:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 12, 1959, REQUESTING REVIEW OF OUR SETTLEMENT OF AUGUST 3, 1959, WHICH DISALLOWED YOUR CLAIM FOR $151.15, AS REIMBURSEMENT FOR THE COST OF COMMERCIAL SHIPMENT OF YOUR PRIVATELY OWNED AUTOMOBILE FROM BREMERHAVEN, GERMANY, TO NEW YORK, NEW YORK, INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY.

BY SPECIAL ORDERS NO. 20, DATED JANUARY 27, 1959, 58TH AIR RESCUE SQUADRON, AIR RESCUE SERVICE (MATS), APO 231, NEW YORK, NEW YORK, YOU WERE RELIEVED FROM ACTIVE DUTY AT WHEELER AIR FORCE BASE, TRIPOLI, LIBIA, EFFECTIVE FEBRUARY 6, 1959, AND AUTHORIZED TRAVEL FROM RHEIN MAIN AIR BASE, GERMANY, TO PORT OF EMBARKATION WITHIN ONE YEAR AFTER RELIEF FROM ACTIVE DUTY. PARAGRAPH 1 OF SPECIAL ORDERS NO. 8, AUTHORIZED SHIPMENT OF YOUR PRIVATELY OWNED VEHICLE BY THE AUTHORITY OF 3RD INDORSEMENT, HEADQUARTERS, 17TH AIR FORCE, TO LETTER FROM LIEUTENANT KUGLEN, SUBJECT: SHIPMENT PRIVATELY OWNED VEHICLE FROM SECONDARY PORT DATED SEPTEMBER 9, 1959. YOU INDICATE THAT PRIOR TO YOUR ORDERS OF JANUARY 27, 1959, YOU ARRANGED FOR THE AUTHORIZATION OF SHIPMENT FROM BREMERHAVEN AT GOVERNMENT EXPENSE. THE TRANSPORTATION OFFICER AT BREMERHAVEN APPARENTLY ADVISED YOU THAT HE COULD NOT ACCEPT YOUR AUTOMOBILE FOR SHIPMENT, DESPITE YOUR ORDERS, DUE TO THE PROVISIONS OF AIR FORCE LETTER NO. 75-4, DATED JANUARY 14, 1959, ISSUED BY THE DEPARTMENT OF THE AIR FORCE, WASHINGTON, D.C. THIS LETTER--- REFERRED TO, BY YOU, IN YOUR LETTER OF AUGUST 12, 1959--- PROHIBITED SHIPMENT OF A PRIVATELY OWNED VEHICLE FROM A PORT OTHER THAN THE PORT SERVING THE MEMBER'S OLD OVERSEAS STATION. YOU STATE THAT DUE TO THE DENIAL OF TRANSPORTATION AT GOVERNMENT EXPENSES YOU HAD NO ALTERNATIVE OTHER THAN TO SHIP YOUR AUTOMOBILE TO NEW YORK, NEW YORK, AT PERSONAL EXPENSE. YOUR CLAIM FOR SUCH EXPENSE WAS PREVIOUSLY DISALLOWED SINCE NO PROVISION OF LAW WAS FOUND TO PERMIT REIMBURSEMENT OF EXPENSES INCURRED BY A MEMBER IN TRANSPORTATION OF HIS AUTOMOBILE FROM AN OVERSEAS LOCATION TO A UNITED STATES PORT BY COMMERCIAL CARRIER.

THE AUTHORITY FOR TRANSPORTATION OF A PRIVATELY OWNED VEHICLE OF AIR FORCE MEMBERS IS FOUND IN SECTION 617 OF THE NATIONAL MILITARY ESTABLISHMENT APPROPRIATION ACT OF 1950, 63 STAT. 1020, WHICH IS 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 REQUIRED THAT IMPLEMENTING REGULATIONS BE ISSUED BY THE SECRETARIES OF THE SERVICES INVOLVED. THE 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 27, 1959, PURPORTING TO AUTHORIZE SHIPMENT OF YOUR AUTOMOBILE FROM THE SECONDARY PORT AT BREMERHAVEN WAS CONTRARY TO THE THEN CONTROLLING REGULATIONS IT IS WITHOUT EFFECT, AND DOES NOT PROVIDE A LEGAL BASIS FOR THE PAYMENT OF YOUR CLAIM. B-139956, JULY 9, 1959.

NEITHER THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 803, AS AMENDED, NOR THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT THERETO, PROVIDE FOR TRANSPORTATION BY THE GOVERNMENT OF PRIVATELY OWNED AUTOMOBILES. CHAPTER 11, PART 9, OF AIR FORCE MANUAL 75-1 EFFECTIVE AT THE TIME OF SHIPMENT, PROVIDES THAT AIR FORCE PERSONNEL, OF THE APPROPRIATE GRADE OR RANK, UPON PERMANENT CHANGE OF STATION ORDERS RETURNING THEM TO THE UNITED STATES, MAY SHIP ONE PRIVATELY OWNED VEHICLE ON A SPACE REQUIREMENT BASIS AT GOVERNMENT EXPENSE THROUGH THE PORTS OF EMBARKATION AND DEBARKATION NORMALLY USED BY GOVERNMENT VESSELS. THESE SHIPMENTS ARE AUTHORIZED FREE OF ALL PORT ACCESSORIAL AND OCEAN TRANSPORTATION CHARGES ABOARD GOVERNMENT -OWNED VESSELS PURSUANT TO PERMANENT CHANGE OF STATION ORDERS INVOLVING TRANSOCEANIC MOVEMENT. HOWEVER, THERE IS NOTHING IN EITHER THE ABOVE- QUOTED STATUTE OR THE CITED REGULATIONS WHICH PURPORTS TO AUTHORIZE REIMBURSEMENT OF AMOUNTS EXPENDED FOR TRANSPORTATION OF PRIVATELY OWNED MOTOR VEHICLES ON VESSELS COMMERCIALLY OWNED AND OPERATED.

THE STATUTORY AUTHORITY FOR TRANSOCEANIC SHIPMENT AT GOVERNMENT EXPENSE OF PRIVATELY OWNED VEHICLES OF MEMBERS OF THE UNIFORMED SERVICES WAS ENLARGED BY PUBLIC LAW 538, APPROVED MAY 28, 1956, 70 STAT. 187, WHICH AMENDED SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, AS AMENDED, BY ADDING AT THE END THEREOF A NEW SUBSECTION READING AS FOLLOWS:

"/C) THAT NOTWITHSTANDING ANY OTHER PROVISION OF LAW, PRIVATELY OWNED AMERICAN SHIPPING SERVICES MAY BE UTILIZED FOR THE TRANSPORTATION OF MOTOR VEHICLES OWNED BY GOVERNMENT PERSONNEL WHENEVER TRANSPORTATION OF SUCH VEHICLES AT GOVERNMENT EXPENSE IS OTHERWISE AUTHORIZED BY LAW.'

YOU WILL NOTE THAT THIS ACT CONTAINS NO EXPRESS PROVISION FOR REIMBURSING OWNERS WHO EFFECT SHIPMENT OF THEIR VEHICLES ON THEIR OWN RESPONSIBILITY. ITS PURPOSE IS TO AUTHORIZE THE USE OF AMERICAN COMMERCIAL VESSELS--- IN ADDITION TO GOVERNMENT OWNED OR OPERATED VESSELS-- FOR TRANSOCEANIC SHIPMENT OF PRIVATELY OWNED VEHICLES OF MILITARY PERSONNEL. PARAGRAPH 91104, OF CHAPTER 11, PART 9, AIR FORCE MANUAL 75-1, DATED SEPTEMBER 1, 1957, AND EFFECTIVE AT THE TIME OF SHIPMENT, PROVIDES THAT THE MILITARY SEA TRANSPORTATION SERVICE SHALL PROCURE SHIPPING SPACE FOR ALL PRIVATELY OWNED VEHICLES OFFERED FOR SHIPMENT AT ARMY TERMINALS.

THUS, ASIDE FROM THE FACT THAT YOUR ORDERS WERE INEFFECTIVE TO AUTHORIZE THE MOVEMENT OF YOUR AUTOMOBILE AT GOVERNMENT EXPENSE, IT CLEARLY IS APPARENT FROM THE CITED REGULATIONS THAT ALL TRANSOCEANIC SHIPMENTS ON COMMERCIAL VESSELS WERE TO BE ARRANGED BY THE MILITARY SEA TRANSPORTATION SERVICE, AND THAT SUCH AGENCY--- NOT THE OWNERS OF VEHICLES--- WOULD ADJUST OR SETTLE THE CHARGES THEREFOR. IN THE CIRCUMSTANCES, THERE IS NO AUTHORITY TO REIMBURSE YOU FOR THE EXPENSES CLAIMED.

ACCORDINGLY, THE SETTLEMENT OF AUGUST 3, 1959, MUST BE AND IS SUSTAINED.

INASMUCH AS THE PAPERS FILED HERE IN SUPPORT OF YOUR CLAIM NOW CONSTITUTE A PART OF THE PERMANENT RECORD UPON WHICH THE DISALLOWANCE WAS BASED, THEY ARE REQUIRED TO BE RETAINED HERE, AND MAY NOT BE RETURNED TO YOU. COMP. GEN. 819, 823.