B-147916, FEB. 14, 1962

B-147916, FEB. 14, 1962

TO MR. TILSON L. KING:

YOUR LETTER OF DECEMBER 20, 1961, REQUESTS AN EXPLANATION WHY YOU ARE NOT ENTITLED TO REIMBURSEMENT FOR $356.60 CLAIMED BY YOU AS COSTS OF SHIPMENT OF YOUR AUTOMOBILE FROM THE UNITED STATES TO YOUR OVERSEAS STATION INCIDENT TO YOUR EMPLOYMENT BY THE DEPARTMENT OF THE AIR FORCE, WHICH CLAIM WAS DISALLOWED IN OUR SETTLEMENT OF DECEMBER 5, 1961.

THE DISALLOWANCE WAS BASED ON THE PROVISIONS OF SECTION 36 (B) OF EXECUTIVE ORDER NO. 9805, AS AMENDED APRIL 3, 1961, BECAUSE OF THE FACT THAT NO ADVANCE AUTHORIZATION WAS GRANTED YOU FOR THE SHIPMENT OF YOUR AUTOMOBILE AT GOVERNMENT EXPENSE TO YOUR OVERSEA STATION. YOU SAY YOU ARE AWARE THAT SUCH ADVANCE AUTHORITY WAS NECESSARY, BUT YOU ASK WHY YOU WERE NOT GIVEN THE SAME PRIVILEGE WHICH WAS GIVEN OTHER CIVILIANS AT YOUR OVERSEA STATION.

YOUR QUESTIONS PRIMARILY CONCERN AN ELIGIBILITY MATTER WHICH COMES WITHIN THE ADMINISTRATIVE JURISDICTION OF THE OVERSEA COMMAND. SEE PARAGRAPH 3 OF AIR FORCE LETTER 40-13 OF MAY 8, 1961, AS IMPLEMENTED BY AFPCP-C-2, JULY 20, 1961, CONCERNING THE SHIPMENT OF EMPLOYEES' PRIVATELY OWNED VEHICLES TO, FROM AND BETWEEN OVERSEAS DUTY STATIONS.

IMPLEMENTING LETTER OF JULY 20, 1961, REVISED OCTOBER 18, READS, IN PERTINENT PART, AS FOLLOWS:

"2. ON AND AFTER 1 AUGUST 1961 THE PROVISIONS OF TITLE XI, EXECUTIVE ORDER 9805, ARE EFFECTIVE FOR CIVILIAN EMPLOYEES OF THE AIR FORCE WHOSE PERMANENT DUTY STATIONS ARE LOCATED OUTSIDE THE CONTIGUOUS 48 STATES, ALASKA, AND THE DISTRICT OF COLUMBIA (INCLUDING EMPLOYEES NEWLY RECRUITED, TRANSFERRED OR RETURNING FOR SEPARATION) SUBJECT TO THE FOLLOWING LIMITATIONS AND CONDITIONS:

"A. THE COMMANDER OF A MAJOR AIR COMMAND OVERSEAS, OR HIS DESIGNEE, IS DELEGATED AUTHORITY TO DETERMINE THE ELIGIBILITY OF INDIVIDUAL CIVILIAN EMPLOYEES FOR THE TRANSPORTATION AND EMERGENCY STORAGE OF THEIR PRIVATELY OWNED MOTOR VEHICLES AT GOVERNMENT EXPENSE. THE AUTHORITY WILL BE EXERCISED IN ACCORDANCE WITH THE ELIGIBILITY CRITERIA AND CONDITIONS PRESCRIBED IN TITLE XI, EXECUTIVE ORDER 9805. APPLICATION OF THE AUTHORITY FOR AIR FORCE EMPLOYEES WILL BE CONSISTENT WITH THAT FOR ALL DEPARTMENTS OF DEFENSE CIVILIAN PERSONNEL IN AN AREA OR THEATER. INSOFAR AS PRACTICABLE, UNDER THE CONTROLLING CRITERIA FOR ELIGIBILITY, ADMINISTRATIVE DETERMINATIONS AND PRACTICES FOR THE SHIPMENT OF PRIVATELY OWNED VEHICLES AT GOVERNMENT EXPENSE WILL BE THE SAME FOR CIVILIAN EMPLOYEES AS FOR MILITARY PERSONNEL EXCEPT NO GRADE CUT-OFF WILL BE ESTABLISHED FOR CIVILIAN ELIGIBILITY. COMMANDERS OF MAJOR AIR COMMANDS OVERSEAS MAY REDELEGATE THE ABOVE AUTHORITY WHERE APPROPRIATE TO SUBORDINATE COMMANDERS, INCLUDING THEIR DESIGNEES.

"F. DETERMINATION OF ELIGIBILITY FOR THE SHIPMENT OF AN EMPLOYEE'S PRIVATELY OWNED MOTOR VEHICLE AT GOVERNMENT EXPENSE MUST BE MADE IN ADVANCE OF SHIPMENT. RETROACTIVE APPROVAL FOR REIMBURSEMENT WILL NOT BE ALLOWED FOR PRIVATELY OWNED MOTOR VEHICLES SHIPPED PRIOR TO AN ADVANCE DETERMINATION OF ELIGIBILITY. * * *"

TWX MESSAGE OF AUGUST 4, 1961, FROM THE OVERSEAS COMMAND TO USAF OVERSEAS OFFICE, CHICAGO, ILLINOIS, ADVISED THAT THE ABOVE QUOTED IMPLEMENTING LETTER WAS RECEIVED BY THE COMMAND ON AUGUST 4 AND THAT PENDING COMMAND WIDE COORDINATION IN ACCORDANCE WITH PARAGRAPH 2A OF THE LETTER NO APPROVAL COULD BE GIVEN FOR THE TRANSPORTATION OF YOUR AUTOMOBILE. YOUR AUTOMOBILE WAS SHIPPED ON AUGUST 23, 1961, AND SO FAR AS THE RECORD SHOWS THE NECESSARY DETERMINATION OF ELIGIBILITY HAD NOT BEEN MADE BY THE OVERSEAS COMMAND BY THAT DATE.

SINCE THE FUNCTION OF MAKING THE DETERMINATION OF ELIGIBILITY WAS VALIDLY DELEGATED TO THE COMMANDING OFFICER OR HIS DESIGNEE AND INVOLVED THE EXERCISE OF JUDGMENT AND DISCRETION, NO OTHER OFFICER MAY SUBSTITUTE HIS DETERMINATION, IN THE ABSENCE OF ARBITRARY OR CAPRICIOUS ACTION, FOR THAT OF THE AUTHORIZED OFFICER OR HIS DESIGNEE. WHETHER THE FAILURE TO MAKE ANY DETERMINATION AT ALL, AS APPEARS TO BE THE FACT IN YOUR CASE, WARRANTS A REVIEW BY HIGHER AUTHORITY, WOULD SEEM TO BE FOR CONSIDERATION WITHIN THE DEPARTMENT OF THE AIR FORCE.

THEREFORE, SINCE YOU HAD YOUR AUTOMOBILE TRANSPORTED WITHOUT A PRIOR DETERMINATION OF ELIGIBILITY WE MUST ON THE PRESENT RECORD SUSTAIN OUR OFFICE SETTLEMENT.