B-143290, SEPTEMBER 6, 1960, 40 COMP. GEN. 156

B-143290, SEPTEMBER 6, 1960, 40 COMP. GEN. 156

MILITARY PERSONNEL - TRANSPORTATION OF AUTOMOBILES TO OVERSEAS PORTS - INCAPACITATED MEMBERS - PUBLIC BUSINESS TRAVEL THE MOVEMENT OF PRIVATE AUTOMOBILES OF INCAPACITATED MEMBERS OF THE UNIFORMED SERVICES FROM THEIR OVERSEAS STATIONS TO A PORT FOR SHIPMENT TO THE UNITED STATES INCIDENT TO THE MEMBER'S RETURN MAY NOT BE CONSIDERED AS A LEGALLY AUTHORIZED ACTIVITY OR FUNCTION OF THE SERVICE IN VIEW OF THE EXPRESS STATUTORY PROHIBITION AGAINST THE TRANSPORTATION AT GOVERNMENT EXPENSE OF AUTOMOBILES EXCEPT BY GOVERNMENT VESSEL (10 U.S.C. 4748, ID. 9748); THEREFORE, THE TRAVEL OF MEMBERS FOR THE PURPOSE OF DRIVING THE AUTOMOBILES OF INCAPACITATED MEMBERS TO PORTS FOR SHIPMENT TO THE UNITED STATES MAY NOT BE REGARDED AS TRAVEL ON PUBLIC BUSINESS TO ENTITLE SUCH MEMBERS TO TRAVEL ALLOWANCES.

TO THE SECRETARY OF THE AIR FORCE, SEPTEMBER 6, 1960:

REFERENCE IS MADE TO LETTER OF JUNE 7, 1960, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE, PDTATAC CONTROL NO. 60-24, REQUESTING DECISION ON THE QUESTION WHETHER A MEMBER OF THE ARMED FORCES, AUTHORIZED TO PERFORM TRAVEL FOR THE PURPOSE OF DRIVING TO A PORT FOR FURTHER SHIPMENT TO THE UNITED STATES, THE MOTOR VEHICLE OF AN INCAPACITATED MEMBER BEING RETURNED TO THE UNITED STATES FROM AN OVERSEAS STATION, MIGHT BE CONSIDERED AS IN THE PERFORMANCE OF OFFICIAL BUSINESS ENTITLING HIM TO TRAVEL ALLOWANCES FOR THE REQUIRED PERIOD OF TEMPORARY DUTY.

IT IS STATED THAT SITUATIONS ARISE OVERSEAS WHERE MENTALLY AND PHYSICALLY INCAPACITATED MEMBERS MUST BE RETURNED TO THE UNITED STATES FOR MEDICAL TREATMENT AND THAT, BECAUSE OF THEIR INABILITY TO PERSONALLY DRIVE THEIR CARS TO THE PORT, SERIOUS INEQUITY ARISES BETWEEN THEM AND PERSONNEL TRANSFERRED UNDER NORMAL CIRCUMSTANCES WHO CAN DRIVE THEIR OWN CARS TO THE PORT, OR THOSE ENTITLED TO BENEFITS UNDER THE MISSING PERSONS ACT (50 U.S.C. APP. 1012), WHOSE CARS MAY BE SHIPPED FROM THE OVERSEAS DUTY STATION AT GOVERNMENT EXPENSE. SUCH SITUATION, IT IS SUGGESTED, PRESENTS A MATTER OF INHERENT AIR FORCE RESPONSIBILITY SIMILAR TO THAT OF DISPOSING OF PERSONAL EFFECTS OF DECEASED AND MISSING PERSONS. CONSEQUENTLY, IT IS STATED TO BE THE DESIRE OF THE AIR FORCE TO PUBLISH REGULATIONS AUTHORIZING TEMPORARY DUTY FOR THE PURPOSE OF DRIVING A DISABLED MEMBER'S CAR TO A PORT IN CASE OF TRANSFER OF THE DISABLED MEMBER FROM OVERSEAS TO THE UNITED STATES.

PARAGRAPH 3050 OF THE JOINT TRAVEL REGULATIONS, ISSUED UNDER AUTHORITY CONTAINED IN SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AS AMENDED, 37 U.S.C. 253, PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE IN A TRAVEL STATUS, AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS "WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT TRAVEL ORDERS.' THE PHRASE "PUBLIC BUSINESS" AS SO USED HAS BEEN HELD TO RELATE TO THE ACTIVITIES OR FUNCTIONS OF THE SERVICE TO WHICH THE TRAVELER IS ATTACHED, THE TRAVEL AND TEMPORARY DUTY CONTEMPLATED BEING THAT WHICH REASONABLY MAY BE CONSIDERED AS HAVING BEEN PERFORMED IN THE ACCOMPLISHMENT OF THE PURPOSE AND REQUIREMENTS OF SUCH ACTIVITIES AND FUNCTIONS. 38 COMP. GEN. 873. SUCH ACTIVITIES AND FUNCTIONS, OF COURSE, MUST BE THOSE LEGALLY THE RESPONSIBILITY OF THE SERVICE.

SECTION 209 OF THE ACT OF JUNE 30, 1932, 47 STAT. 405, AS AMENDED, 5 U.S.C. 73C, PROVIDES THAT NO LAW OR REGULATION AUTHORIZING OR PERMITTING THE TRANSPORTATION AT GOVERNMENT EXPENSE OF THE EFFECTS OF OFFICERS, EMPLOYEES, OR OTHER PERSONS, SHALL BE CONSTRUED OR APPLIED AS INCLUDING OR AUTHORIZING THE TRANSPORTATION OF AN AUTOMOBILE. SUCH PROVISIONS WERE MODIFIED BY SECTION 617 OF THE NATIONAL MILITARY ESTABLISHMENT APPROPRIATION ACT, 1950, 63 STAT. 1020, 10 U.S.C. 9748, ID. 4748, WHICH PROVIDES THAT WHEN PERSONNEL OF THE AIR FORCE OR ARMY ARE ORDERED TO MAKE ANY PERMANENT CHANGE OF STATION, MOTOR VEHICLES OWNED BY THEM (NOT TO EXCEED ONE VEHICLE PER EXCEED ONE VEHICLE PER PERSON) MAY BE TRANSPORTED TO THEIR NEW POSTS OF DUTY ON GOVERNMENT OWNED VESSELS. TRANSPORTATION AT GOVERNMENT EXPENSE OF AUTOMOBILES, THEREFORE, EXCEPT BY GOVERNMENT-OWNED VESSELS UNDER THE CIRCUMSTANCES AUTHORIZED BY THE 1950 ACT, OR UNDER OTHER SPECIFIC STATUTORY PROVISION, IS EXPRESSLY PROHIBITED, AND PARAGRAPH 8000 OF THE JOINT TRAVEL REGULATIONS, IN RECOGNITION OF THAT LIMITATION, SPECIFICALLY EXCLUDES AUTOMOBILES FROM THOSE ITEMS INCLUDED WITHIN THE DEFINITION OF THE TERM "HOUSEHOLD GOODS.' IN VIEW OF SUCH STATUTORY AND REGULATORY DENIAL OF AUTHORITY FOR THE TRANSPORTATION AT GOVERNMENT EXPENSE OF MEMBERS, AUTOMOBILES, EXCEPT UNDER THE INDICATED CIRCUMSTANCES NOT HERE MATERIAL, THEIR MOVEMENT, EVEN UNDER THE CIRCUMSTANCES SET FORTH FOR THE BENEFIT OR INCAPACITATED PERSONS, MAY NOT BE CONSIDERED AS A LEGALLY AUTHORIZED ACTIVITY OR FUNCTION OF THE SERVICE TO CONSTITUTE IT "PUBLIC BUSINESS" OF THE AIR FORCE FOR PURPOSE OF ENTITLEMENT TO TRAVEL AND TRANSPORTATION ALLOWANCES.

WHILE IT IS TRUE THAT THE SITUATIONS DESCRIBED IN THE ASSISTANT SECRETARY'S LETTER ARE SOMEWHAT ANALOGOUS TO SOME SITUATIONS COVERED BY THE MISSING PERSONS ACT, AUTHORITY FOR THE TRANSPORTATION OF AUTOMOBILES IN CIRCUMSTANCES SIMILAR TO THOSE HERE DISCUSSED OF PERSONS BENEFITING UNDER THAT ACT IS DERIVED FROM A STATUTORY PROVISION SPECIFICALLY LIMITED IN APPLICATION TO THOSE PERSONS. SIMILARITY OF THE SITUATIONS, THEREFORE, COULD HAVE NO EFFECT TO EXTEND SUCH BENEFIT TO OTHERS. ACCORDINGLY, IT IS OUR VIEW THAT THERE IS NO LEGAL BASIS FOR CONCLUDING THAT TRAVEL DIRECTED FOR THE PURPOSE SET FORTH IN THE ASSISTANT SECRETARY'S LETTER WOULD BE TRAVEL ON OFFICIAL BUSINESS FOR THE PURPOSE OF ENTITLEMENT TO TRAVEL ALLOWANCES. CONSEQUENTLY, LEGISLATIVE ACTION WOULD BE REQUIRED TO PROVIDE THE AUTHORITY NEEDED TO SUPPORT THE PROPOSED REGULATIONS.