B-147559, DEC. 26, 1961

B-147559: Dec 26, 1961

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USN: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 30. YOU WERE DIRECTED WHEN RELIEVED FROM YOUR OVERSEAS DUTY TO PROCEED TO THE CONTINENTAL UNITED STATES. TO THESE ORDERS SHOWS THAT YOU WERE FURNISHED TRANSPORTATION VIA MATS FLIGHT A-448. WAS DENIED FOR THE REASON THAT NAVAL MESSAGE ALNAV 10-61 PROHIBITS TRANSPORTATION AT GOVERNMENT EXPENSE OF ANY FOREIGN MADE MOTOR VEHICLE PURCHASED AFTER MARCH 6. THAT YOU WERE ILLEGALLY REQUIRED TO PAY THE SHIPPING COSTS FOR YOUR AUTOMOBILE. YOU URGE THAT YOU ARE ENTITLED TO REIMBURSEMENT OF THESE COSTS. THE STATUTORY AUTHORITY FOR TRANSOCEANIC SHIPMENT AT GOVERNMENT EXPENSE OF PRIVATELY OWNED VEHICLES OF MEMBERS OF THE UNIFORMED SERVICES WAS ENLARGED BY THE ACT OF MAY 28.

B-147559, DEC. 26, 1961

TO LIEUTENANT DELBERT A. SEXTON, USN:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 30, 1961, REQUESTING REVIEW OF OUR SETTLEMENT DATED OCTOBER 10, 1961, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR THE COST OF SHIPMENT OF YOUR AUTOMOBILE FROM GLASGOW, SCOTLAND, TO BALTIMORE, MARYLAND, INCIDENT TO YOUR RETURN FROM OVERSEAS.

BY ORDERS DATED MARCH 10, 1961, YOU WERE DIRECTED WHEN RELIEVED FROM YOUR OVERSEAS DUTY TO PROCEED TO THE CONTINENTAL UNITED STATES, THEN TO WASHINGTON, D.C., AND REPORT TO THE CHIEF OF NAVAL PERSONNEL FOR DUTY. THIRD ENDORSEMENT DATED JULY 17, 1961, TO THESE ORDERS SHOWS THAT YOU WERE FURNISHED TRANSPORTATION VIA MATS FLIGHT A-448, AUGUST 7, 1961. YOUR REQUEST DATED AUGUST 7, 1961, TO SHIP TO THE UNITED STATES ON THESE ORDERS YOUR AUTOMOBILE WHICH YOU HAD PURCHASED ON MARCH 23, 1961, FROM THE AIR FORCE EXCHANGE AT PRESTWICK, SCOTLAND, WAS DENIED FOR THE REASON THAT NAVAL MESSAGE ALNAV 10-61 PROHIBITS TRANSPORTATION AT GOVERNMENT EXPENSE OF ANY FOREIGN MADE MOTOR VEHICLE PURCHASED AFTER MARCH 6, 1961. YOU CONTEND THAT NAVAL MESSAGE ALNAV 43-61 DATED OCTOBER 6, 1961, EXEMPTS THE AREA IN PROXIMITY TO HOLY LOCH, SCOTLAND, FROM THE SHIPPING RESTRICTIONS CONTAINED IN NAVAL MESSAGE ALNAV 10-61 AND PARAGRAPH 58302-2 (CUMULATIVE SUPPLEMENT 5-5 DATED JULY 24, 1961), OF THE BUREAU OF SUPPLIES AND ACCOUNTS MANUAL, AND THAT YOU WERE ILLEGALLY REQUIRED TO PAY THE SHIPPING COSTS FOR YOUR AUTOMOBILE. SINCE PUBLIC LAW 538, 70 STAT. 187, CONTAINS NO EXPRESS PROVISIONS PROHIBITING REIMBURSEMENT TO OWNERS WHO EFFECT SHIPMENT OF THEIR VEHICLES ON THEIR OWN RESPONSIBILITY, YOU URGE THAT YOU ARE ENTITLED TO REIMBURSEMENT OF THESE COSTS.

THE STATUTORY AUTHORITY FOR TRANSOCEANIC SHIPMENT AT GOVERNMENT EXPENSE OF PRIVATELY OWNED VEHICLES OF MEMBERS OF THE UNIFORMED SERVICES WAS ENLARGED BY THE ACT OF MAY 28, 1956, 70 STAT. 187, 46 U.S.C. 1241 (C), 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.'

THIS STATUTE IS NOT SELF-EXECUTING, BUT REQUIRED THAT IMPLEMENTING REGULATIONS BE ISSUED BY THE SECRETARIES OF THE SERVICES INVOLVED. THE FOLLOWING PERTINENT REGULATIONS FOR NAVAL PERSONNEL ARE FOUND IN BUREAU OF SUPPLIES AND ACCOUNTS MANUAL, VOLUME V:

"58300 AUTHORITY

1. FOR MILITARY PERSONNEL AND COAST GUARD WHEN TRANSFERRED TO, FROM, OR BETWEEN OVERSEAS AREAS. TRANSPORTATION OF ONE PRIVATELY OWNED MOTOR VEHICLE OF MILITARY PERSONNEL OF THE NAVY, MARINE CORPS, ARMY, AIR FORCE, AND COAST GUARD UNIFORMED PERSONNEL SPECIFIED IN PAR. 58308 2 ORDERED TO MAKE A PERMANENT CHANGE OF STATION TO, FROM, OR BETWEEN OVERSEAS AREAS OR TO A NONROTATED VESSEL OR UNIT WHICH IS BASED OVERSEAS MAY BE AUTHORIZED TO THE NEW STATION ON GOVERNMENT OWNED VESSELS OR ON PRIVATELY OWNED UNITED STATES FLAG COMMERCIAL VESSELS, FREE OF LOADING AND OCEAN TRANSPORTATION CHARGES UNDER THE PROVISION OF THIS PARAGRAPH. * * *

"58303 APPLICATION FOR SHIPMENT OF PRIVATELY OWNED AUTOMOBILES

1. SUBMISSION OF APPLICATION

A. AUTHORIZED SHIPPING ACTIVITIES. REQUESTS FOR THE SHIPMENT OF MOTOR VEHICLES WILL BE MADE BY THE OWNER ON A MOTOR VEHICLE SHIPMENT APPLICATION (DD FORM 828). * * *"

WHILE THE STATUTE AND REGULATIONS PROVIDE FOR TRANSOCEANIC SHIPMENT AT GOVERNMENT EXPENSE OF PRIVATELY OWNED VEHICLES ON COMMERCIAL AMERICAN VESSELS, BOTH THE STATUTE AND REGULATIONS CONTEMPLATE THAT ARRANGEMENTS FOR SUCH SHIPMENT WILL BE MADE BY THE APPROPRIATE SHIPPING OFFICER. NEITHER THE STATUTE NOR THE REGULATIONS CONTAIN ANY PROVISION FOR REIMBURSING A MEMBER WHO MAKES HIS OWN ARRANGEMENTS FOR SHIPPING HIS VEHICLE ON A COMMERCIAL VESSEL. THUS, ASIDE FROM THE FACT THAT YOUR ORDERS DID NOT AUTHORIZE THE SHIPMENT OF YOUR AUTOMOBILE AT GOVERNMENT EXPENSE, IT CLEARLY IS APPARENT FROM THE CITED REGULATIONS THAT ALL TRANSOCEANIC SHIPMENTS ON COMMERCIAL VESSELS ARE TO BE ARRANGED BY THE APPROPRIATE GOVERNMENT SHIPPING OFFICER AND NOT THE OWNER OF THE AUTOMOBILE. THE FACT THAT THE LAW DOES NOT SPECIFICALLY PROHIBIT REIMBURSEMENT DOES NOT PROVIDE A BASIS FOR PAYMENT OF YOUR CLAIM SINCE VALID STATUTORY REGULATIONS HAVE THE FORCE AND EFFECT OF LAW AND MAY NO MORE BE WAIVED THAN THE PROVISIONS OF THE STATUTE ITSELF. SEE 22 COMP. GEN. 895.

SINCE YOU WERE NOT AUTHORIZED TO MAKE PERSONAL ARRANGEMENTS FOR THE SHIPMENT OF YOUR AUTOMOBILE TO THIS COUNTRY AT GOVERNMENT EXPENSE AND THE APPROPRIATE NAVY SHIPPING OFFICER DID NOT ARRANGE FOR ITS SHIPMENT, YOU ARE NOT ENTITLED TO REIMBURSEMENT OF THE COSTS INCURRED. SINCE ALNAV 43- 61 QUOTES FROM A MEMORANDUM DATED SEPTEMBER 28, 1961, FROM THE SECRETARY OF DEFENSE IN WHICH HE ADVISED THAT THE AREAS THERE LISTED ARE EXEMPT FROM THE RESTRICTIONS OF ALNAV 10-61, THERE APPARENTLY WOULD BE NO BASIS FOR CONSIDERING THAT THE RESTRICTION WAS REMOVED RETROACTIVELY FOR THE PERIOD PRIOR TO THE DATE OF SUCH MEMORANDUM. HENCE, IT WOULD APPEAR THAT THE REQUEST WHICH YOU MADE IN AUGUST 1961 FOR THE SHIPMENT OF YOUR AUTOMOBILE AT GOVERNMENT EXPENSE PROPERLY WAS DENIED.

ACCORDINGLY, THE SETTLEMENT OF OCTOBER 10, 1961, WAS CORRECT AND IS SUSTAINED.