B-180159, JUN 5, 1974, 53 COMP GEN 924

B-180159, JUN 5, 1974, 53 COMP GEN 924

TRANSPORTATION - AUTOMOBILES - MILITARY PERSONNEL - LONG-TERM LEASED VEHICLES - NO AUTHORITY FOR SHIPMENT MEMBER WITH MOTOR VEHICLE UNDER LONG-TERM LEASE IS NOT ENTITLED TO SHIPMENT OF LEASED VEHICLE OVERSEAS AT GOVERNMENT EXPENSE SINCE 10 U.S.C. 2634 AND PARAGRAPH M11000-1, JOINT TRAVEL REGULATIONS, PROVIDE VEHICLE MUST BE OWNED BY THE MEMBER, AND A LONG-TERM LEASE IS A BAILMENT AGREEMENT IN WHICH THE LESSEE IS GIVEN POSSESSION, BUT THE LESSOR RETAINS OWNERSHIP.

TO THE SECRETARY OF THE ARMY, JUNE 5, 1974:

FURTHER REFERENCE IS MADE TO LETTER, WITH ATTACHMENTS, DATED NOVEMBER 9, 1973, FROM THE ASSISTANT SECRETARY OF THE ARMY (MANPOWER AND RESERVE AFFAIRS), REQUESTING A DECISION AS TO WHETHER MEMBERS OF THE UNIFORMED SERVICES, WHO ARE ENTITLED TO SHIPMENT OF PRIVATELY OWNED VEHICLES, MAY SHIP LONG-TERM LEASED VEHICLES UNDER THE SAME STATUTE, SECTION 2634, TITLE 10, U.S.C. THIS REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 73-50 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

IN HIS LETTER THE ASSISTANT SECRETARY STATES THAT THE JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE ARMY, IS OF THE OPINION THAT THE CONCEPT OF A PRIVATELY OWNED VEHICLE, UNDER THE STATUTE, DOES NOT INCLUDE A LEASED VEHICLE BUT THAT THE STAFF JUDGE ADVOCATE, MILITARY TRAFFIC MANAGEMENT AND TERMINAL SERVICE (FROM WHOM THE REQUEST FOR A DECISION ORIGINATED), IS OF THE OPINION THAT A LESSEE OF A VEHICLE HAS EQUITABLE TITLE, AND THUS A LEASED VEHICLE SHOULD BE ELIGIBLE FOR SHIPMENT UNDER THE STATUTE.

THE STATUTORY AUTHORITY FOR THE SHIPMENT OF A MOTOR VEHICLE IS CONTAINED IN SECTION 2634 OF TITLE 10, U.S. CODE, WHICH PROVIDES:

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

THE ABOVE STATUTORY AUTHORITY IS IMPLEMENTED IN CHAPTER II OF VOLUME I, JOINT TRAVEL REGULATIONS, PARAGRAPH M11000-1, WHICH STATES AS FOLLOWS:

*** AS USED IN THIS CHAPTER, THE TERM "PRIVATELY OWNED MOTOR VEHICLE" MEANS ANY SELF-PROPELLED WHEELED MOTOR CONVEYANCE OWNED BY THE MEMBER, IN HIS POSSESSION, AND FOR USE BY THE MEMBER AND/OR HIS DEPENDENTS ***.

IN THE PRESENT CIRCUMSTANCES, IT APPEARS THAT THE VEHICLE IS THE SUBJECT OF A BAILMENT AGREEMENT. IN 8 AM JUR 2D, BAILMENTS SEC. 16, IT IS STATED THAT:

*** IT IS A GENERALLY RECOGNIZED FEATURE OF BAILMENTS THAT POSSESSION OF THE THING BAILED IS SEVERED FROM OWNERSHIP; THE BAILOR RETAINS THE GENERAL OWNERSHIP, WHILE THE BAILEE HAS THE LAWFUL POSSESSION OR CUSTODY FOR THE SPECIFIC PURPOSE OF THE BAILMENT ***

FURTHER, IN 8 AM JUR 2D, BAILMENTS SEC. 30, IT IS STATED THAT:

*** IF THE AGREEMENT IS THAT THE PARTY WHO RECEIVES POSSESSION OF THE PROPERTY IS TO RETAIN IT FOR A DEFINITE PERIOD, AND THAT IF, AT OR BEFORE THE EXPIRATION OF THAT PERIOD, HE PAYS FOR THE PROPERTY, HE IS TO BECOME THE OWNER, OTHERWISE TO PAY FOR ITS USE, THE TRANSACTION IS MERELY A BAILMENT AND TITLE TO THE PROPERTY, EVEN AS AGAINST CREDITORS, REMAINS IN THE BAILOR UNTIL THE PRICE IS PAID. ***

THIS OFFICE HELD IN DECISION B-167036, FEBRUARY 18, 1970, THAT WHILE THE WORD "OWNERSHIP" MAY BE USED WITH SEVERAL MEANINGS, DEPENDING UPON THE CONTEXT, ONE OF THE ACCEPTED TESTS OF "OWNERSHIP" IN ITS CUSTOMARY SENSE IS THE RIGHT TO DISPOSE OF, SELL, CONVEY, ASSIGN OR GIVE AWAY. IN THE PRESENT SITUATION, THE LESSEE OF THE VEHICLE WOULD HAVE NO RIGHT OF DISPOSAL. IF THERE WERE AN OPTION TO PURCHASE THE VEHICLE THERE WOULD BE NO RIGHT OF DISPOSAL UNTIL AFTER THE OPTION WAS EXERCISED.

AMONG THE ATTACHMENTS TO THE ASSISTANT SECRETARY'S LETTER IS A STATEMENT FROM THE MILITARY TRAFFIC MANAGEMENT AND TERMINAL SERVICE TO THE EFFECT THAT A LESSEE UNDER A LONG-TERM LEASE MAY BE CONSIDERED AS HAVING EQUITABLE TITLE TO THE MOTOR VEHICLE AND AS SUCH SHOULD BE CONSIDERED TO BE AN OWNER, CITING AS AUTHORITY POWELL V. HOME INDEMNITY COMPANY, 343 F.2D 856 (8TH CIR. 1965). IN THIS CASE THE COURT HAD FOR DETERMINATION THE QUESTION OF WHETHER THE COMPANY WHICH WAS USING A LEASED VEHICLE WAS THE OWNER WITHIN THE MEANING OF ITS LIABILITY INSURANCE POLICY. CONSTRUING THE WORD "OWNER" THE COURT STATED THAT IT SHOULD TAKE THE MEANING MOST FAVORABLE TO THE INSURED. IT WOULD THUS APPEAR THAT THE POWELL DECISION IS LIMITED IN ITS EFFECT AND IS NOT FOR APPLICATION TO THE QUESTION NOW BEFORE US.

ALSO, 19 COMP. GEN. 684 (1940) IS CITED IN SUPPORT OF THE ACCEPTANCE OF EQUITABLE OWNERSHIP UNDER 10 U.S.C. 2634. THAT DECISION WHICH INVOLVED THE RIGHT TO REIMBURSEMENT OF MILEAGE EXPENSES OF GOVERNMENT EMPLOYEES UNDER A 1931 STATUTE, STATED THE GENERAL RULE THAT EQUITABLE OWNERSHIP IS NOT CONTROLLING TO ESTABLISH RIGHT TO MILEAGE; BUT THAT WHERE THE TRAVELER HAD EQUITABLE OWNERSHIP OF AN AUTOMOBILE AT THE TIME OF PERFORMANCE OF OFFICIAL TRAVEL AND REGISTRATION OF THE AUTOMOBILE USED WAS SUBSEQUENTLY CHANGED TO THE TRAVELER'S NAME, MILEAGE WAS AUTHORIZED IN THE INTERIM PERIOD.

HOWEVER, WHILE EQUITABLE OWNERSHIP HAS BEEN CONSIDERED SUFFICIENT IN THE SPECIAL CIRCUMSTANCES INDICATED, A MEMBER WHO HAS USE AND POSSESSION BUT NOT THE RIGHT OF DISPOSAL OF A VEHICLE, I.E., A BAILMENT, IN OUR OPINION, IS NOT AN OWNER WITHIN THE CONTEMPLATION OF 10 U.S.C. 2634.

ACCORDINGLY, IT IS OUR VIEW THAT THERE IS NO LEGAL AUTHORITY FOR THE TRANSPORTATION OF A LONG-TERM LEASED VEHICLE UNDER 10 U.S.C. 2634.