B-163658, APR. 4, 1968

B-163658: Apr 4, 1968

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BERNITZ WAS ASSIGNED TO SERVE AS ASSISTANT AGRICULTURAL ATTACHE IN BONN. WAS USED BY THE EMPLOYEE UNTIL IT BECAME IRREPARABLE AND DANGEROUS TO OPERATE. THE BILL OF SALE SHOWS THAT THE NEW AUTOMOBILE WAS DELIVERED TO THE EMPLOYEE ON APRIL 26. YOU HAVE DOUBT AS TO WHETHER UNDER THE APPLICABLE LAW AND REGULATIONS THE VOUCHER MAY BE CERTIFIED FOR PAYMENT. BERNITZ WAS ASSIGNED TO SERVE ABROAD UNDER THE AUTHORITY OF TITLE VI OF THE ACT OF AUGUST 28. UNDER SECTION 603 OF THAT ACT HE WAS ENTITLED TO THE SAME BENEFITS AND ALLOWANCES PROVIDED BY TITLE IX OF THE FOREIGN SERVICE ACT OF 1946 (22 U.S.C. 1131- 1158). HE WAS SUBJECT TO THE RULES AND REGULATIONS PRESCRIBED BY THE SECRETARY OF STATE UNDER TITLE IX OF THE 1946 ACT.

B-163658, APR. 4, 1968

TO MR. A. M. FLATEQUAL:

BY LETTER DATED FEBRUARY 23, 1968, WITH ENCLOSURES, YOU REQUESTED OUR DECISION AS TO THE PROPRIETY OF CERTIFYING FOR PAYMENT A VOUCHER IN FAVOR OF MR. ALEXANDER BERNITZ FOR $320.60, REPRESENTING THE COST OF TRANSPORTING A PRIVATELY OWNED AUTOMOBILE FROM THE UNITED STATES TO BREMERHAVEN, GERMANY.

IN SEPTEMBER 1963 MR. BERNITZ WAS ASSIGNED TO SERVE AS ASSISTANT AGRICULTURAL ATTACHE IN BONN, GERMANY, UNDER THE AUTHORITY OF TITLE VI OF THE ACT OF AUGUST 28, 1954, 68 STAT. 908. INCIDENT TO SUCH ASSIGNMENT THE EMPLOYEE SHIPPED A PRIVATELY OWNED AUTOMOBILE FROM THE UNITED STATES TO BONN, GERMANY. THE AUTOMOBILE ARRIVED IN BONN ON OCTOBER 2, 1963, AND WAS USED BY THE EMPLOYEE UNTIL IT BECAME IRREPARABLE AND DANGEROUS TO OPERATE.

WITHOUT OBTAINING PRIOR AUTHORIZATION FOR SHIPMENT OF A REPLACEMENT VEHICLE, MR. BERNITZ PLACED AN ORDER FOR PURCHASE OF A NEW AUTOMOBILE ON APRIL 17, 1967. THE BILL OF SALE SHOWS THAT THE NEW AUTOMOBILE WAS DELIVERED TO THE EMPLOYEE ON APRIL 26, 1967.

ALTHOUGH THE SHIPMENT OF THE EMPLOYEE'S AUTOMOBILE HAS BEEN ADMINISTRATIVELY APPROVED (FEBRUARY 12, 1968), YOU HAVE DOUBT AS TO WHETHER UNDER THE APPLICABLE LAW AND REGULATIONS THE VOUCHER MAY BE CERTIFIED FOR PAYMENT.

AS NOTED ABOVE, MR. BERNITZ WAS ASSIGNED TO SERVE ABROAD UNDER THE AUTHORITY OF TITLE VI OF THE ACT OF AUGUST 28, 1954, SUPRA. UNDER SECTION 603 OF THAT ACT HE WAS ENTITLED TO THE SAME BENEFITS AND ALLOWANCES PROVIDED BY TITLE IX OF THE FOREIGN SERVICE ACT OF 1946 (22 U.S.C. 1131- 1158). ALSO, BY VIRTUE OF EXECUTIVE ORDER NO. 10624, DATED JULY 28, 1955, HE WAS SUBJECT TO THE RULES AND REGULATIONS PRESCRIBED BY THE SECRETARY OF STATE UNDER TITLE IX OF THE 1946 ACT.

WITH RESPECT TO TRANSPORTATION OF A MOTOR VEHICLE FOR REPLACEMENT PURPOSES, SECTION 913 OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, 22 U.S.C. 1138, PROVIDES AS FOLLOWS:

"* * * NOT MORE THAN ONE MOTOR VEHICLE OF ANY SUCH OFFICER OR EMPLOYEE MAY BE TRANSPORTED UNDER AUTHORITY OF THIS SECTION DURING ANY FOUR-YEAR PERIOD, EXCEPT THAT, AS A REPLACEMENT FOR SUCH MOTOR VEHICLE, ONE ADDITIONAL MOTOR VEHICLE OF ANY SUCH OFFICER OR EMPLOYEE MAY BE SO TRANSPORTED DURING SUCH PERIOD UPON APPROVAL, IN ADVANCE, BY THE SECRETARY AND UPON A DETERMINATION, IN ADVANCE, BY THE SECRETARY THAT SUCH REPLACEMENT IS NECESSARY FOR REASONS BEYOND THE CONTROL OF THE OFFICER OR EMPLOYEE AND IS IN THE INTEREST OF THE GOVERNMENT. AFTER THE EXPIRATION OF A PERIOD OF FOUR YEARS FOLLOWING THE DATE OF TRANSPORTATION UNDER AUTHORITY OF THIS SECTION OF A PRIVATELY OWNED MOTOR VEHICLE OF ANY OFFICER OR EMPLOYEE WHO HAS REMAINED IN CONTINUOUS SERVICE OUTSIDE THE CONTINENTAL UNITED STATES (EXCLUDING ALASKA AND HAWAII) DURING SUCH PERIOD, THE TRANSPORTATION OF A REPLACEMENT FOR SUCH MOTOR VEHICLE FOR SUCH OFFICER OR EMPLOYEE MAY BE AUTHORIZED BY THE SECRETARY IN ACCORDANCE WITH THIS SECTION.'

THE REGULATIONS WHICH IMPLEMENT THE ABOVE STATUTORY PROVISIONS ARE CONTAINED IN VOLUME 6 OF THE FOREIGN AFFAIRS MANUAL AND PROVIDE IN PERTINENT PART AS FOLLOWS:

"165.3 EMERGENCY REPLACEMENT

"THE TRANSPORTATION OF ONE ADDITIONAL PRIVATELY-OWNED MOTOR VEHICLE FROM THE UNITED STATES OR OTHER DESIGNATED PLACE OF PURCHASE MAY BE AUTHORIZED, IN ADVANCE, BY AN AUTHORIZING OFFICER DURING ANY FOUR-YEAR PERIOD AS AN EMERGENCY REPLACEMENT OF THE LAST MOTOR VEHICLE TRANSPORTED AT GOVERNMENT EXPENSE, WHEN HE DETERMINES, IN ADVANCE, THAT:

"A. THE REPLACEMENT IS IN THE INTEREST OF THE GOVERNMENT AND IS NECESSARY FOR REASONS BEYOND THE CONTROL OF THE EMPLOYEE; AND

"B. THE USE OF THE REPLACEMENT VEHICLE IS IN THE INTEREST OF THE GOVERNMENT.

"165.4 PERIODIC REPLACEMENT

"THE TRANSPORTATION OF ONE PRIVATELY-OWNED MOTOR VEHICLE FROM THE UNITED STATES OR OTHER DESIGNATED PLACE OF PURCHASE TO THE EMPLOYEE'S POST OF ASSIGNMENT ABROAD MAY BE AUTHORIZED BY AN AUTHORIZING OFFICER AS THE REPLACEMENT OF A MOTOR VEHICLE PREVIOUSLY TRANSPORTED AT GOVERNMENT EXPENSE PROVIDED THAT:

"A. THERE IS A LAPSE OF AT LEAST FOUR YEARS BETWEEN THE INITIAL DATE OF ARRIVAL OF THE VEHICLE TO BE REPLACED AT THE EMPLOYEE'S PRESENT OR PREVIOUS POST ABROAD AND THE DATE ON WHICH THE TRANSPORTATION OF THE REPLACEMENT VEHICLE WILL COMMENCE; * * *"

THE ABOVE PROVISIONS OF LAW CLEARLY AND PRECISELY DEFINE THE CONDITIONS UNDER WHICH A PRIVATELY OWNED MOTOR VEHICLE MAY BE SHIPPED ABROAD FOR REPLACEMENT PURPOSES. THE RECORD SHOWS THAT MR. BERNITZ DID NOT MEET THOSE CONDITIONS. BY TRANSPORTING THE REPLACEMENT VEHICLE TO BONN WITHOUT ADVANCE AUTHORIZATION AND PRIOR TO THE EXPIRATION OF FOUR YEARS FROM THE DATE HIS FIRST AUTOMOBILE ARRIVED OVERSEAS, MR. BERNITZ CONTRAVENED THE EXPRESS PROVISIONS OF THE STATUTE AND REGULATIONS QUOTED ABOVE. IN VIEW THEREOF WE ARE WITHOUT AUTHORITY TO AUTHORIZE PAYMENT OF THE TRANSPORTATION COSTS INCURRED. THEREFORE, THE VOUCHER WHICH IS RETURNED HEREWITH MAY NOT BE CERTIFIED FOR PAYMENT.