B-144992, MAR. 31, 1961

B-144992, MAR. 31, 1961

TO MR. CHARLES J. BELLO:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 13, 1961, WITH WHICH YOU HAVE ENCLOSED A CHECK FOR $92.80 IN SATISFACTION OF YOUR INDEBTEDNESS TO THE UNITED STATES, WHICH INDEBTEDNESS AROSE FROM EXCESS LEAVE TAKEN WHILE ON ACTIVE DUTY AS AN ENLISTED MEMBER OF THE UNITED STATES ARMY. IN YOUR LETTER YOU REQUEST REVIEW OF THE ACTION OF OUR CLAIMS DIVISION, IN LETTER DATED JANUARY 5, 1961, IN DISALLOWING YOUR CLAIM FOR THE COST OF COMMERCIAL SHIPMENT OF YOUR PRIVATELY OWNED AUTOMOBILE FROM BREMERHAVEN, GERMANY, TO NEW YORK, NEW YORK, INCIDENT TO YOUR RETURN TO THE UNITED STATES FROM OVERSEAS DUTY.

THE MATTER OF YOUR INDEBTEDNESS, WHICH WAS REFERRED TO OUR OFFICE FOR COLLECTION ACTION BY THE DEPARTMENT OF THE ARMY, WAS EXPLAINED TO YOU BY THE LETTER OF JANUARY 5, 1961. BRIEFLY STATED, SUCH INDEBTEDNESS AROSE ON ACCOUNT OF EXCESS LEAVE (21 DAYS) TAKEN BY YOU DURING THE PERIOD OF YOUR ENLISTMENT NOVEMBER 2, 1955, TO SEPTEMBER 8, 1958. SINCE YOU HAD INSUFFICIENT PAY AND ALLOWANCE CREDITS AT DISCHARGE FROM THE ARMY FROM WHICH TO MAKE COLLECTION, THERE REMAINED DUE THE UNITED STATES A BALANCE OF $92.80, WHICH YOU HAVE NOW LIQUIDATED BY YOUR CURRENT PAYMENT.

IN YOUR REQUEST FOR REVIEW OF THE SETTLEMENT ACTION ON YOUR CLAIM FOR COST OF SHIPMENT OF YOUR AUTOMOBILE, YOU SAY THAT IN RELIANCE ON ASSURANCE BY YOUR COMPANY COMMANDER IN 1957, YOU PURCHASED THE VEHICLE, APPARENTLY IN THE BELIEF THAT YOU COULD SHIP IT BACK TO THE UNITED STATES WHEN YOU RECEIVED PERMANENT CHANGE OF STATION ORDERS. HOWEVER, YOU INDICATE THAT YOU RECEIVED NO WORD FROM PORT AUTHORITIES AT BREMERHAVEN, GERMANY, UNTIL A TWX OF FEBRUARY 11, 1958, WAS SENT TO YOUR COMMAND ADVISING THAT SHIPMENT OF PRIVATELY OWNED VEHICLES FOR ARMY PERSONNEL AT GOVERNMENT EXPENSE FROM OTHER THAN THE PORT SERVING THE OVERSEAS DUTY STATION IS AUTHORIZED ONLY ON A SPACE AVAILABLE REIMBURSABLE BASIS, SUBJECT TO SURPLUS SPACE AS DETERMINED BY PORT COMMANDER. THIS MESSAGE WENT ON TO STATE THAT THE PORT CONCERNED, BREMERHAVEN, DID NOT ANTICIPATE HAVING SURPLUS SPACE FOR THIS PURPOSE WITHIN THE FORESEEABLE FUTURE, AND SUGGESTED THAT ARMY PERSONNEL BE ADVISED TO ARRANGE COMMERCIAL SHIPMENT. THEREAFTER, BY SPECIAL ORDERS NO. 15, DATED FEBRUARY 18, 1958, YOU WERE RELEASED FROM YOUR OVERSEAS ASSIGNMENT AND TRANSFERRED TO FORT BENNING, GEORGIA, ON A PERMANENT CHANGE OF STATION. THESE ORDERS INDICATED THAT YOU WERE TO RETURN TO THE UNITED STATES BY GOVERNMENT AIR, MILITARY AIR TRANSPORT SERVICE FLIGHT NO. 254/02. THE RECORD SHOWS THAT THE SHIPMENT OF YOUR AUTOMOBILE WAS EFFECTED BY COMMERCIAL MEANS ARRANGED BY YOU WITH THE AMERICAN EXPRESS COMPANY, IN BREMEN, GERMANY.

SECTION 617 OF THE NATIONAL MILITARY ESTABLISHMENT APPROPRIATION ACT OF 1950, 63 STAT. 1020, READS AS FOLLOWS:

"WHEN PERSONNEL OF THE AIR FORCE OR ARMY ARE ORDERED TO MAKE A PERMANENT CHANGE OF STATION, MOTOR VEHICLES OWNED BY THEM FOR THEIR PERSONAL USE (NOT TO EXCEED ONE VEHICLE PER PERSON) MAY BE TRANSPORTED TO THEIR NEW POSTS OF DUTY ON GOVERNMENT-OWNED VESSELS.'

THE ACT EXPRESSLY LIMITS THE SHIPMENT OF MOTOR VEHICLES WHICH MAY BE MADE AT GOVERNMENT EXPENSE FOR MEMBERS OF THE ARMY TO WATER TRANSPORATION ON GOVERNMENT VESSELS.

NEITHER THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 803, AS AMENDED, NOR THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT THERETO, PROVIDE FOR TRANSPORTATION BY THE GOVERNMENT OF PRIVATELY OWNED AUTOMOBILES. PARAGRAPH 8, ARMY REGULATIONS NO. 55-76, DATED SEPTEMBER 26, 1955, PROVIDES, WITH RESPECT TO SPACE AVAILABLE SHIPMENTS (SUCH AS DISCUSSED HERE) THAT "THE AVAILABILITY OF SPACE ON VESSELS WILL BE DETERMINED BY THE COMMANDER OF THE CONTINENTAL UNITED STATES OR OVERSEA PORT CONCERNED. THIS DETERMINATION IS FINAL.' IN YOUR CASE THE RECORD SHOWS THAT THE PORT COMMANDER AT BREMERHAVEN, GERMANY, DID NOT ANTICIPATE HAVING SURPLUS SPACE FOR THE PURPOSE OF SHIPPING PRIVATELY OWNED VEHICLES SUCH AS YOURS WITHIN THE FORESEEABLE FUTURE. THERE IS NOTHING IN THE CITED REGULATIONS WHICH PURPORTS TO AUTHORIZE REIMBURSEMENT OF AMOUNTS EXPENDED FOR TRANSPORTING PRIVATELY OWNED VEHICLES ON COMMERCIALLY OWNED AND OPERATED VESSELS WHERE THE MEMBER ARRANGES FOR SUCH SHIPMENT HIMSELF.

THE STATUTORY AUTHORITY FOR TRANSOCEANIC SHIPMENT AT GOVERNMENT EXPENSE OF PRIVATELY OWNED VEHICLES OF MEMBERS OF THE UNIFORMED SERVICES WAS ENLARGED BY PUBLIC LAW 538, APPROVED MAY 28, 1956, 70 STAT. 187, WHICH AMENDED SECTION 701 OF THE MERCHANT MARINE ACT OF 1936, AS AMENDED, BY ADDING AT THE END THEREOF A NEW SUBSECTION READING AS FOLLOWS:

"/C) THAT NOTWITHSTANDING ANY OTHER PROVISION OF LAW, PRIVATELY OWNED AMERICAN SHIPPING SERVICES MAY BE UTILIZED FOR THE TRANSPORATION OF MOTOR VEHICLES OWNED BY GOVERNMENT PERSONNEL WHENEVER TRANSPORTATION OF SUCH VEHICLES AT GOVERNMENT EXPENSE IS OTHERWISE AUTHORIZED BY LAW.'

YOU WILL NOTE THAT THIS ACT CONTAINS NO EXPRESS PROVISION FOR REIMBURSING OWNERS WHO EFFECT SHIPMENT OF THEIR VEHICLES ON THEIR OWN RESPONSIBILITY. ITS PURPOSE IS TO PERMIT THOSE CHARGED WITH THE RESPONSIBILITY TO EFFECT AUTHORIZED SHIPMENTS OF SERVICE MEMBERS' MOTOR VEHICLES UNDER THE QUOTED PROVISIONS OF SECTION 617 OF THE ACT OF OCTOBER 29, 1949, AND OTHER LIKE PROVISIONS, TO USE THE FACILITIES OF PRIVATE AMERICAN SHIPPING SERVICES WHEN NECESSARY TO MEET THAT RESPONSIBILITY. IN THE CIRCUMSTANCES, THERE IS NO AUTHORITY TO REIMBURSE YOU FOR THE EXPENSES CLAIMED. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM FOR COST OF COMMERCIAL SHIPMENT OF YOUR AUTOMOBILE MUST BE AND IS SUSTAINED. THE ENCLOSURES FORWARDED WITH YOUR LETTER OF JANUARY 13, 1961, ARE RETURNED HEREWITH AS YOU REQUESTED.