B-102348, FEB 6, 1953

B-102348, FEB 6, 1953

PRECIS-UNAVAILABLE

THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO YOUR PREDECESSOR'S LETTER OF JULY 16, 1951, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF OFFICE DECISION OF APRIL 11, 1951, B-102348, CONCERNING THE RIGHT OF ARMY PERSONNEL ASSIGNED TO THE AMERICAN MISSION FOR AID TO GREECE TO TRAVEL ON VESSELS UNDER FOREIGN FLAGS IN RETURNING TO THE UNITED STATES UPON TERMINATION OF SUCH ASSIGNMENTS.

ILLUSTRATIVE OF THE TYPE OF CASES INVOLVED IS THAT OF LIEUTENANT COLONEL JAMES W. DUNCAN, WHO BY ORDERS DATED FEBRUARY 26, 1949, FROM HEADQUARTERS, U.S. ARMY GROUP, GREECE, WAS DIRECTED TO PROCEED TO WASHINGTON, D.C., ON A PERMANENT CHANGE OF STATION. PARAGRAPH 2 OF SUCH ORDERS AUTHORIZED TRAVEL BY ANY AVAILABLE MEANS OF TRANSPORTATION, INCLUDING TRAVEL ON SHIPS SAILING UNDER FOREIGN FLAGS. THE TRANSPORTATION FURNISHED THE OFFICER ON A GOVERNMENT TRANSPORTATION REQUEST OVER A ROUTE SELECTED BY HIM AS OPTIONAL, INCLUDED TRANSPORTATION VIA THE CUNARD WHITE STAR LINE, SS QUEEN ELIZABETH, SAILING FROM SOUTHAMPTON, ENGLAND, TO NEW YORK, NEW YORK, ON MARCH 18, 1949. IN THAT REGARD SECTION 901 OF THE MERCHANT MARINE ACT, 1936, 49 STAT. 2015, 46 U.S.C. 1241, PROVIDES THAT ANY OFFICER OF THE UNITED STATES TRAVELING ON OFFICIAL BUSINESS OVERSEAS "SHALL TRAVEL AND TRANSPORT HIS PERSONAL EFFECTS ON SHIPS REGISTERED UNDER THE LAWS OF THE UNITED STATES WHERE SUCH SHIPS ARE AVAILABLE UNLESS THE NECESSITY OF HIS MISSION REQUIRES THE USE OF A SHIP UNDER A FOREIGN FLAG" AND FURTHER, THAT THE COMPTROLLER GENERAL OF THE UNITED STATES "SHALL NOT CREDIT ANY ALLOWANCE FOR TRAVEL OR SHIPPING EXPENSES INCURRED ON A FOREIGN SHIP IN THE ABSENCE OF SATISFACTORY PROOF OF THE NECESSITY THEREFOR." THE FOREGOING SUMMARIZES THE RECORD BEFORE THIS OFFICE AT THE TIME OF THE RENDITION OF DECISION OF APRIL 11, 1951, REFERRED TO ABOVE.

THE FORMER SECRETARY'S LETTER OF JULY 16, 1951, REQUESTING RECONSIDERATION OF THE EARLIER RULING DISCLOSED THAT THERE WAS CONSIDERABLE CONFUSION AS TO WHETHER THE FUNDS ALLOTTED TO THE ARMY FOR PARTICIPATION IN THE AMERICAN MISSION FOR AID TO GREECE AND AUTHORITY GRANTED BY THE ENABLING ACT OF MAY 22, 1947, 61 STAT. 103, DID NOT CARRY WITH THEM THE EXEMPTION FROM THE PROVISIONS OF SECTION 901 OF THE MERCHANT MARINE ACT, THEN APPLICABLE TO THE DEPARTMENT OF STATE. CAREFUL CONSIDERATION HAS BEEN GIVEN TO THE VIEWS SET FORTH IN THE COMPREHENSIVE OPINION OF THE JUDGE ADVOCATE GENERAL WHICH WAS ENCLOSED WITH THE FORMER SECRETARY'S LETTER, AND TO HIS CONCLUSION THAT THE ARMY PERSONNEL ASSIGNED TO THE MISSION WERE EXEMPT FROM THE PROVISIONS OF THE SAID SECTION 901. HOWEVER, IN THE ABSENCE OF EXPRESS LANGUAGE EXEMPTING SUCH PERSONNEL FROM SECTION 901, THIS OFFICE MAY NOT CONCUR IN THE JUDGE ADVOCATE GENERAL'S VIEW, AND ACCORDINGLY IT MUST BE CONCLUDED THAT THE TRAVEL OF COLONEL DUNCAN AND OTHER ARMY PERSONNEL ASSIGNED TO THE MISSION WAS SUBJECT TO THAT SECTION OF THE MERCHANT MARINE ACT.

NOTWITHSTANDING THAT CONCLUSION, THE RECORD SHOWS THAT COLONEL DUNCAN LEFT ATHENS ON MARCH 10, 1949, IN COMPLIANCE WITH HIS ORDERS, ARRIVED IN SOUTHAMPTON ON MARCH 18 AND SAILED ON THE SAME DAY FOR NEW YORK. EXAMINATION OF THE SCHEDULE OF SAILINGS OF AMERICAN VESSELS FROM THAT PORT SHOWS, ASIDE FROM THE QUESTION OF AVAILABLE ACCOMMODATIONS, THAT NONE WOULD HAVE SAILED UNTIL MARCH 25, WHICH WOULD HAVE RESULTED IN A DELAY OF A WEEK. IT IS EXTREMELY DOUBTFUL WHETHER A DELAY OF THAT DURATION NORMALLY WOULD BE CONSIDERED SUCH AS TO WARRANT THE CONCLUSION THAT AN AMERICAN VESSEL WAS NOT AVAILABLE; HOWEVER, WHEN THERE IS CONSIDERED COLONEL DUNCAN'S GOOD FAITH IN THE MATTER, HIS RELIANCE UPON PURPORTED AUTHORITY IN HIS WRITTEN ORDERS, THE FACT THAT HE DID NOT PERSONALLY PROCURE THE TRANSPORTATION AND THE UNCERTAINTY CONCERNING THE QUESTION OF WHETHER ARMY PERSONNEL WERE AUTHORIZED BY LAW TO PROCURE TRANSPORTATION ON VESSELS OF FOREIGN REGISTRY WITHOUT REFERENCE TO THE APPLICABLE SECTION OF THE MERCHANT MARINE ACT, COLONEL DUNCAN MAY BE RELIEVED OF THE OBLIGATION OF REFUNDING THE AMOUNT PAID FOR HIS PASSAGE ABOARD THE SS QUEEN ELIZABETH. SIMILAR TREATMENT MAY BE ACCORDED THE CASES OF OTHER ARMY PERSONNEL ASSIGNED TO THE AMERICAN MISSION FOR AID TO GREECE WHO RETURNED UNDER LIKE CIRCUMSTANCES ON FOREIGN VESSELS DURING THE INVOLVED PERIOD.

THE DEPARTMENT OF STATE AGAIN HAS BEEN BROUGHT WITHIN THE PURVIEW OF SECTION 901 OF THE MERCHANT MARINE ACT AND FOR GUIDANCE AS TO FUTURE CASES, YOU ARE REFERRED TO OFFICE DECISION OF FEBRUARY 1, 1952, B 106864, TO THE SECRETARY OF STATE, A COPY OF WHICH IS ENCLOSED FOR YOUR CONVENIENCE.