B-199296, DEC 27, 1985 OFFICE OF GENERAL COUNSEL

B-199296, DEC 27, 1985 OFFICE OF GENERAL COUNSEL

TRANSPORTATION - AUTOMOBILES - OVERSEAS EMPLOYEES - AUTHORITY - LACKING DIGEST: EMPLOYEE QUESTIONS DETERMINATION THAT HE WILL NOT BE AUTHORIZED TO SHIP HIS PRIVATELY-OWNED VEHICLE AT GOVERNMENT EXPENSES FROM HIS OVERSEAS DUTY POST TO THE UNITED STATES UNLESS THAT VEHICLE (OR THE VEHICLE IT REPLACED) WAS SHIPPED AT GOVERNMENT EXPENSE TO THE OVERSEAS DUTY STATION. THAT DETERMINATION IS CONSISTENT WITH THE APPLICABLE REGULATIONS AND OUR DECISIONS. ALTHOUGH THE EMPLOYEE MAY HAVE BEEN MISINFORMED CONCERNING HIS ENTITLEMENTS, THE GOVERNMENT IS NOT BOUND BY THE ERRONEOUS ACTS OF ITS AGENTS OR EMPLOYEES.

THE HONORABLE PHIL GRAMM:

UNITED STATES SENATOR

515 RUSK, SUITE 8632

HOUSTON, TEXAS 77002

THIS IS IN RESPONSE TO YOUR INQUIRY DATED JUNE 25, 1985, WHICH WAS FORWARDED TO OUR OFFICE BY THE OFFICE OF PERSONNEL MANAGEMENT. THIS INQUIRY CONCERNS A QUESTION RAISED BY MR. ROBERT K. WOFFORD ON THE SHIPMENT OF PRIVATELY-OWNED VEHICLES TO THE UNITED STATES FROM OVERSEAS DUTY STATIONS.

MR. WOFFORD STATES THAT IN MARCH 1980, HE WAS TRANSFERRED TO AN OVERSEAS DUTY POST IN GERMANY AND WAS AUTHORIZED TO SHIP HIS VEHICLE AT GOVERNMENT EXPENSE TO HIS NEW DUTY STATION. HE STATES FURTHER THAT HE ELECTED NOT TO SHIP A VEHICLE AT THAT TIME BUT WAS ASSURED THAT, UPON HIS RETURN TO THE UNITED STATES, HE COULD SHIP A UNITED STATES-MADE VEHICLE BACK TO THE UNITED STATES. MR. WOFFORD SAYS THAT IN 1984 HE WAS ADVISED NO VEHICLES WOULD BE SHIPPED AT GOVERNMENT EXPENSE UNLESS THAT VEHICLE WAS ORIGINALLY SHIPPED TO THE OVERSEAS DUTY STATION AT GOVERNMENT EXPENSE. MR. WOFFORD DISAGREES WITH THIS DETERMINATION SINCE IT IS CONTRARY TO ASSURANCES HE RECEIVED AT THE TIME OF HIS TRANSFER AND SINCE IT WILL RESULT IN GREATER EXPENSE TO THE GOVERNMENT.

THE STATUTORY AUTHORITY FOR THE SHIPMENT OF VEHICLES UPON TRANSFER OVERSEAS IS CONTAINED IN 5 U.S.C. SEC. 5727(B) (1982). UNDER THAT SECTION, EMPLOYEES MAY BE AUTHORIZED SHIPMENT OF A VEHICLE AT GOVERNMENT EXPENSE TO AND FROM A POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES WHEN THE HEAD OF THE AGENCY CONCERNED DETERMINES THAT IT IS IN THE INTEREST OF THE GOVERNMENT FOR THE EMPLOYEE TO HAVE THE USE OF A VEHICLE AT THE POST OF DUTY. THE REGULATIONS IMPLEMENTING THIS STATUTORY AUTHORITY ARE CONTAINED IN THE FEDERAL TRAVEL REGULATIONS (FTR) /1/, AND THESE REGULATIONS SPECIFY THE CONDITIONS UNDER WHICH AN EMPLOYEE MAY BE AUTHORIZED SHIPMENT OF A VEHICLE TO AN OFFICIAL STATION OUTSIDE THE CONTERMINOUS UNITED STATES. SEE FRT PARAS. 2-10.2, 2 10.3A. THESE REGULATIONS PROVIDE FURTHER IN PARA. 2-10.3B FOR RETURN SHIPMENT OF A VEHICLE TO THE UNITED STATES AS FOLLOWS:

"B. RETURN FROM OFFICIAL STATION AFTER ASSIGNMENT. AN EMPLOYEE WHOSE PRIVATELY OWNED VEHICLE WAS TRANSPORTED TO HIS/HER OFFICIAL STATION UNDER THE AUTHORITY OF THIS PART MAY HAVE THAT VEHICLE RETURNED TO THE UNITED STATES AT GOVERNMENT EXPENSE NOT TO EXCEED THE COST FOR TRANSPORTATION TO HIS/HER ACTUAL RESIDENCE AT THE TIME OF APPOINTMENT OR ASSIGNMENT TO DUTY OUTSIDE THE CONTERMINOUS UNITED STATES INCIDENT TO:

"(1) A TRANSFER TO THE CONTERMINOUS UNITED STATES OR TO AN OFFICIAL STATION OUTSIDE THE CONTERMINOUS UNITED STATES TO WHICH HE/SHE IS NOT AUTHORIZED TO TRANSPORT A PRIVATELY OWNED VEHICLE, OR

"(2) SEPARATION AFTER COMPLETION OF AN AGREED PERIOD OF SERVICE AT AN OFFICIAL STATION OUTSIDE THE CONTERMINOUS UNITED STATES TO WHICH THE VEHICLE WAS TRANSPORTED UNDER THIS PART OR SEPARATION PRIOR TO COMPLETION OF SUCH PERIOD IF THE SEPARATION IS FOR REASONS BEYOND HIS/HER CONTROL AND ACCEPTABLE TO THE AGENCY."

OUR DECISIONS HAVE INTERPRETED THIS LANGUAGE IN THE FTR AND HAVE HELD THAT A VEHICLE MAY NOT BE TRANSPORTED AT GOVERNMENT EXPENSE FROM AN OVERSEAS DUTY POST TO THE UNITED STATES UNLESS THAT VEHICLE (OR A REPLACEMENT VEHICLE AUTHORIZED UNDER FTR PARA. 2-10.3E) WAS TRANSPORTED AT GOVERNMENT EXPENSE TO THE OVERSEAS DUTY POST. /2/

ALTHOUGH MR. WOFFORD CHARACTERIZES THIS AS A CHANGE IN POLICY, WE DISAGREE SINCE THE LANGUAGE OF THE FTR PROVISION HAS REMAINED ESSENTIALLY UNCHANGED SINCE 1973. RATHER, THE ANNOUNCEMENT CIRCULATED TO DEPARTMENT OF DEFENSE EMPLOYEES APPEARS TO BE A CLARIFICATION OF EXISTING POLICY. /3/ WE NOTE ALSO THAT THE GENERAL SERVICES ADMINISTRATION HAS CONSIDERED CHANGES TO THESE REGULATIONS TO PERMIT THE SHIPMENT OF A VEHICLE FROM OVERSEAS EVEN IF THE EMPLOYEE DID NOT SHIP THAT VEHICLE TO THE OVERSEAS DUTY POST. SEE OUR LETTER B-182912, MARCH 13, 1975. HOWEVER, AS NOTED ABOVE, THERE HAVE BEEN NO SUBSTANTIVE CHANGES TO THESE REGULATIONS TO DATE.

FINALLY, MR. WOFFORD STATES THAT HE WAS ASSURED UPON HIS TRANSFER OVERSEAS IN 1980 THAT HE WOULD BE PERMITTED TO TRANSPORT A VEHICLE BACK TO THE UNITED STATES EVEN IF HE DID NOT TRANSPORT THAT VEHICLE TO THE OVERSEAS DUTY POST AT GOVERNMENT EXPENSE. WHILE IT IS UNFORTUNATE THAT MR. WOFFORD WAS MISINFORMED, IT IS WELL SETTLED THAT, IN THE ABSENCE OF A SPECIFIC STATUTORY PROVISION, THE GOVERNMENT IS NOT BOUND BY THE ERRONEOUS ACTS OR OMISSIONS OF ITS AGENTS OR EMPLOYEES. SEE WILFREDO O. TUNGOL, CITED IN FOOTNOTE 2, AND COURT CASES CITED THEREIN.

WE TRUST THIS IS RESPONSIVE TO YOUR INQUIRY. WE HAVE ENCLOSED COPIES OF OUR DECISIONS FOR YOUR INFORMATION.

/1/ CHAPTER 2, PART 10, FPMR 101-7, SEPTEMBER 1981, INCORP BY REF., 41 C.F.R. SEC. 101-7.003 (1984).

/2/ MICHAEL J. PATNODE, B-214942, OCTOBER 5, 1984; WILFREDO O. TUNGOL, B-208695, NOVEMBER 30, 1982; AND MONIKA WEAVER OGBURN, B-183408, SEPTEMBER 4, 1975, SUSTAINED IN B-183408, MAY 3, 1976.

/3/ SEE JOINT TRAVEL REGULATIONS, VOL. 2, PARA. C-11003-1.3 (CHANGE NO. 226, AUGUST 1, 1984).