B-152812, NOV. 26, 1963

B-152812: Nov 26, 1963

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TO THE SECRETARY OF THE AIR FORCE: REFERENCE IS MADE TO LETTER OF OCTOBER 30. WAS RELIEVED FROM HIS ASSIGNMENT WITH THE 7030TH COMBAT SUPPORT WING. THE EFFECTIVE DATE OF CHANGE OF STRENGTH ACCOUNTABILITY WAS SET AS JUNE 2. PERSONNEL AT THE PROCESSING CENTER ERRONEOUSLY REFUSED TO ACCEPT THE VEHICLE FOR SHIPMENT ON THE GROUND THAT TO BE ENTITLED TO SHIPMENT UNDER THE PERTINENT REGULATIONS AN ENLISTED MEMBER MUST HAVE ATTAINED THE GRADE OF E-4 OR HIGHER WITH AT LEAST 4 YEARS' SERVICE PRIOR TO MARCH 7. LENO WAS UNABLE TO SECURE SHIPMENT OF HIS AUTOMOBILE AT GOVERNMENT EXPENSE. LENO'S CLAIM FOR REIMBURSEMENT OF THE COSTS OF THE SHIPMENT ($181.75) WAS DISALLOWED BY THE AIR FORCE ACCOUNTING AND FINANCE CENTER.

B-152812, NOV. 26, 1963

TO THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO LETTER OF OCTOBER 30, 1963, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE REQUESTING A DECISION CONCERNING THE PROPRIETY OF REIMBURSING MR. RAYMOND R. LENO FOR EXPENSES INCURRED BY HIM WHILE A MEMBER OF THE AIR FORCE IN SECURING THE SHIPMENT OF HIS PRIVATELY OWNED AUTOMOBILE FROM BREMERHAVEN, GERMANY, TO THE UNITED STATES IN CONNECTION WITH A PERMANENT CHANGE OF STATION.

BY ORDERS DATED APRIL 26, 1963, MR. LENO, THEN AN AIRMAN FIRST CLASS (E- 4) WITH OVER 4 YEARS' SERVICE, WAS RELIEVED FROM HIS ASSIGNMENT WITH THE 7030TH COMBAT SUPPORT WING, UNITED STATES AIR FORCE (EUROPE), AND ASSIGNED TO THE 1611 AB GROUP, MCGUIRE AIR FORCE BASE, NEW JERSEY, FOR SEPARATION FROM THE SERVICE. THE EFFECTIVE DATE OF CHANGE OF STRENGTH ACCOUNTABILITY WAS SET AS JUNE 2, 1963. THE RECORD INDICATES THAT ON MAY 3, 1963, MR. LENO APPLIED AT THE VEHICLE PROCESSING CENTER IN BREMERHAVEN FOR SHIPMENT TO THE UNITED STATES OF HIS FOREIGN MANUFACTURED AUTOMOBILE WHICH HAD BEEN PURCHASED PRIOR TO MARCH 7, 1961, THE PURCHASE CUT-OFF DATE FOR SHIPMENT OF SUCH CARS TO THE CONTINENTAL UNITED STATES AT GOVERNMENT EXPENSE. PERSONNEL AT THE PROCESSING CENTER ERRONEOUSLY REFUSED TO ACCEPT THE VEHICLE FOR SHIPMENT ON THE GROUND THAT TO BE ENTITLED TO SHIPMENT UNDER THE PERTINENT REGULATIONS AN ENLISTED MEMBER MUST HAVE ATTAINED THE GRADE OF E-4 OR HIGHER WITH AT LEAST 4 YEARS' SERVICE PRIOR TO MARCH 7, 1961, INSTEAD OF ON THE EFFECTIVE DATE OF HIS PERMANENT CHANGE OF STATION ORDERS. INASMUCH AS MR. LENO WAS UNABLE TO SECURE SHIPMENT OF HIS AUTOMOBILE AT GOVERNMENT EXPENSE, HE DELIVERED HIS CAR TO COMMERCIAL SHIPPERS IN BREMERHAVEN ON MAY 4, 1963, FOR TRANSPORTATION TO NEW YORK, NEW YORK, AT HIS PERSONAL EXPENSE. MR. LENO'S CLAIM FOR REIMBURSEMENT OF THE COSTS OF THE SHIPMENT ($181.75) WAS DISALLOWED BY THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, FOR THE REASON THAT IRRESPECTIVE OF THE CIRCUMSTANCES INVOLVED, THE REGULATIONS DO NOT AUTHORIZE REIMBURSEMENT TO A MEMBER WHO MAKES HIS OWN ARRANGEMENTS FOR SHIPPING HIS AUTOMOBILE ON A COMMERCIAL VESSEL (PARAGRAPH 5804D, AFM 75- 4).

WHILE THE ASSISTANT SECRETARY EXPRESSES AGREEMENT WITH OUR DECISIONS (CITING B-133872, NOVEMBER 15, 1957; B-138106, DECEMBER 30, 1958; B 139174, APRIL 20, 1960) IN THIS AREA, GENERALLY, HOLDING THAT STATUTES SIMILAR TO 10 U.S.C. 2634, DO NOT PROVIDE FOR REIMBURSEMENT TO THE MEMBER WHO MAKES HIS OWN ARRANGEMENTS FOR SHIPPING HIS VEHICLES BUT CONTEMPLATE ONLY THE FURNISHING OF SHIPPING SERVICES IN KIND THROUGH AN APPROPRIATE TRANSPORTATION OFFICER, HE SUGGESTS THAT A REASONABLE BASIS EXISTS FOR REIMBURSEMENT INASMUCH AS THE FAILURE TO SHIP IN THE CONTEMPLATED MANNER WAS WITHOUT FAULT ON THE PART OF MR. LENO AND DESPITE HIS BEST EFFORTS.

IN OUR ADJUDICATION OF MR. LENO'S CLAIM FOR REIMBURSEMENT IT WAS POINTED OUT THAT THE S.S. HAVSKAR, ABOARD WHICH MR. LENO'S AUTOMOBILE WAS TRANSPORTED TO THE UNITED STATES, IS A FOREIGN FLAG VESSEL REGISTERED UNDER THE LAWS OF NORWAY AND THAT NEITHER THE LAW OF THE UNITED STATES NOR THE REGULATIONS ISSUED PURSUANT THERETO AUTHORIZE SHIPMENT OF PRIVATELY OWNED VEHICLES OF MEMBERS OF THE ARMED FORCES ON VESSELS OF FOREIGN REGISTRY.

THE STATUTORY AUTHORITY FOR SHIPMENT OF MOTOR VEHICLES OF MEMBERS OF THE ARMED FORCES ON PERMANENT CHANGE OF STATION IS CONTAINED IN 10 U.S.C. 2634 (SUPP. IV) WHICH PROVIDES AS FOLLOWS:

"WHEN A MEMBER OF AN ARMED FORCE IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION, ONE MOTOR VEHICLE OWNED BY HIM AND FOR HIS PERSONAL USE MAY BE TRANSPORTED TO HIS NEW STATION AT THE EXPENSE OF THE UNITED STATES---

"/1) ON A VESSEL OWNED BY THE UNITED STATES; OR

"/2) BY PRIVATELY OWNED AMERICAN SHIPPING SERVICES.'

THUS, SINCE THE BASIC LAW AUTHORIZING THE SHIPMENT OF A MEMBER'S AUTOMOBILE AT GOVERNMENT EXPENSE CLEARLY LIMITS THE MODE OF TRANSPORTATION TO EITHER GOVERNMENT OR PRIVATELY OWNED AMERICAN FACILITIES, THERE IS NO STATUTORY BASIS FOR REIMBURSING MR. LENO FOR THE COSTS INCURRED IN SHIPPING HIS AUTOMOBILE BY A FOREIGN VESSEL REGARDLESS OF THE REASON FOR THE SHIPMENT HAVING BEEN MADE BY A COMMERCIAL CARRIER. WHILE IT IS UNFORTUNATE THAT MR. LENO'S AUTOMOBILE WAS NOT ACCEPTED FOR SHIPMENT BY THE VEHICLE PROCESSING CENTER PERSONNEL, THE JURISDICTION OF OUR OFFICE IS SUCH THAT WE MAY DIRECT THE PAYMENT OF CLAIMS FROM PUBLIC FUNDS ONLY IF SUCH PAYMENT IS AUTHORIZED BY LAW. FURTHER, IT IS WELL ESTABLISHED THAT, IN THE ABSENCE OF SPECIFIC STATUTORY PROVISIONS, THE UNITED STATES IS NOT LIABLE FOR NEGLIGENT OR WRONGFUL ACTIONS OF ITS OFFICERS, AGENTS OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. GERMAN BANK OF MEMPHIS V. UNITED STATES, 148 U.S. 573; 19 COMP. GEN. 503; 22 ID. 221.

ACCORDINGLY, SINCE THERE IS NO AUTHORITY FOR REIMBURSEMENT OF THE COST INCURRED BY MR. LENO IN SHIPPING HIS PRIVATELY OWNED VEHICLE FROM BREMERHAVEN TO THE UNITED STATES BY FOREIGN CARRIER, HIS CLAIM MAY NOT PROPERLY BE ALLOWED.