B-156892, JUL. 20, 1965, 45 COMP. GEN. 39

B-156892, JUL. 20, 1965, 45 COMP. GEN. 39

TRANSPORTATION - AUTOMOBILES - MILITARY PERSONNEL - COMMERCIAL VESSELS - ARRANGEMENT BY GOVERNMENT REQUIREMENT WHEN A MEMBER OF THE UNIFORMED SERVICES ENTITLED UNDER 10 U.S.C. 2634 AND 37 U.S.C. 406 (H) TO GOVERNMENT ARRANGED FREE OCEAN TRANSPORTATION OF A PRIVATELY OWNED MOTOR VEHICLE UPON PERMANENT CHANGE OF AN OVERSEAS STATION, PERSONALLY ARRANGES AND PAYS FOR THE COMMERCIAL SHIPMENT OF A MOTOR VEHICLE, THE COST OF THE OCEAN TRANSPORTATION, ABSENT SPECIFIC STATUTORY AUTHORITY, MAY NOT BE REIMBURSED TO THE MEMBER, AND THE LAW AUTHORIZING THE OCEAN TRANSPORTATION OF PRIVATELY OWNED MOTOR VEHICLES CONFERRING NO SHIPPING ENTITLEMENT ON A MEMBER PERSONALLY, NOR PROVIDING FOR THE REIMBURSEMENT OF PERSONAL EXPENSE INCURRED FOR THE COMMERCIAL TRANSPORTATION ARRANGED BY HIM, THE JOINT TRAVEL REGULATIONS MAY NOT BE AMENDED TO AUTHORIZE REIMBURSEMENT OF TRANSPORTATION COSTS TO MEMBERS PERSONALLY ARRANGING FOR THE SHIPMENT OF A MOTOR VEHICLE TO THEIR PERMANENTLY ASSIGNED OVERSEAS STATION.

TO THE SECRETARY OF THE AIR FORCE, JULY 20, 1965:

FURTHER REFERENCE IS MADE TO LETTER DATED MAY 7, 1965, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE REQUESTING A DECISION WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO AUTHORIZE REIMBURSEMENT FOR PERSONALLY ARRANGED COMMERCIAL SHIPMENT OF A MOTOR VEHICLE BY A MEMBER OF THE UNIFORMED SERVICES ENTITLED TO GOVERNMENT ARRANGED SHIPMENT, IN AN AMOUNT NOT TO EXCEED THE COST HAD THE SHIPMENT BEEN ARRANGED BY THE GOVERNMENT. THE REQUEST WAS ASSIGNED CONTROL NO. 65-17 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE ASSISTANT SECRETARY SAYS THAT PARAGRAPH M11002 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT REIMBURSEMENT IS NOT AUTHORIZED FOR SHIPMENT OFA PRIVATELY OWNED MOTOR VEHICLE BY COMMERCIAL TRANSPORTATION AT PERSONAL EXPENSE; THAT THIS RESTRICTION WAS CONTAINED IN THE SEPARATE REGULATIONS OF THE UNIFORMED SERVICES BEFORE PROMULGATION OF THE JOINT TRAVEL REGULATIONS; AND THAT IT APPEARED APPROPRIATE WHEN ALMOST ALL OF THE SHIPMENTS WERE MADE BY GOVERNMENT VESSELS. HE POINTS OUT, HOWEVER, THAT BECAUSE OF CURTAILMENT OF OPERATIONS OF GOVERNMENT VESSELS, A CONSIDERABLE PERCENTAGE OF THE SHIPMENTS CURRENTLY IS MOVED BY COMMERCIAL SHIPPING FACILITIES. IN SUCH CIRCUMSTANCES AND SINCE THE PERTINENT STATUTES (37 U.S.C. 406 (H), 10 U.S.C. 2634, AND 50 U.S.C. APP. 1012), IN PROVIDING AUTHORIZATION FOR THE SHIPMENT OF A PRIVATELY OWNED MOTOR VEHICLE AT GOVERNMENT EXPENSE, DO NOT SPECIFICALLY PRECLUDE REIMBURSEMENT FOR PERSONAL EXPENSES INCURRED WHEN SHIPMENT IS ARRANGED BY THE MEMBER VIA COMMERCIAL VESSEL, HE SUGGESTS THAT THE NEED FOR SUCH RESTRICTION NO LONGER EXISTS.

TO ILLUSTRATE THE PROBLEM THE ASSISTANT SECRETARY REFERS TO A NUMBER OF INSTANCES INVOLVING FINANCIAL HARDSHIP TO THE MEMBER WHERE, THROUGH ADMINISTRATIVE ERROR OR MISUNDERSTANDING, THE MEMBER HAS BEEN DENIED GOVERNMENT ARRANGED SHIPMENT, OR WHERE THE MEMBER HAS BEEN ERRONEOUSLY ADVISED BY AN OFFICIAL THAT HE COULD PERSONALLY ARRANGE FOR SHIPMENT OF HIS VEHICLE AND BE REIMBURSED FOR THE COST OF SUCH SHIPMENT. ALSO, HE MENTIONS INSTANCES WHERE, THROUGH MISUNDERSTANDING OR ADMINISTRATIVE ERROR, MEMBERS WITH ENTITLEMENT TO SHIP PRIVATELY OWNED VEHICLES WERE REQUIRED TO PAY CHARGES FOR MILITARY ARRANGED SHIPPING BEFORE THEIR VEHICLE WOULD BE ACCEPTED. THE ASSISTANT SECRETARY SAYS THAT CURRENT REGULATIONS DO NOT SPECIFICALLY PRECLUDE OR AUTHORIZE REIMBURSEMENT IN SUCH CASES AND HE EXPRESSES THE VIEW THAT REIMBURSEMENT SHOULD BE AUTHORIZED NOT IN EXCESS OF THE AMOUNT THAT IT WOULD HAVE COST HAD THE GOVERNMENT ARRANGED THE SHIPMENT.

SECTION 209 OF THE ACT OF JUNE 30, 1932, 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.

FOR MANY YEARS, 10 U.S.C. 4748, 6157, AND 9748 AUTHORIZED THE ARMY, NAVY AND AIR FORCE TO TRANSPORT A MOTOR VEHICLE OWNED BY A MEMBER TO THE NEW STATION ON A GOVERNMENT-OWNED VESSEL. THOSE AUTHORITIES DID NOT CONTEMPLATE AND WERE NOT APPLIED AS AUTHORIZING REIMBURSEMENT TO A MEMBER WHO SHIPPED HIS MOTOR VEHICLE AT PERSONAL EXPENSE. WHILE THE ACT OF MAY 28, 1956, PUBLIC LAW 538, 84TH CONGRESS, 70 STAT. 187, 46 U.S.C. 1241 (C) AMENDED SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, AS AMENDED, TO PROVIDE AUTHORITY FOR TRANSPORTATION OF MOTOR VEHICLES OWNED BY GOVERNMENT PERSONNEL ON COMMERCIAL AMERICAN VESSELS, IT DID NOT ENLARGE THE ENTITLEMENT BASIS PROVIDED BY THE BASIC STATUTES AND THEREFORE IT NECESSARILY WAS HELD THAT SUCH ACT CONTEMPLATED THAT AUTHORIZED SHIPMENTS OF AUTOMOBILES SHOULD BE ARRANGED FOR AND EFFECTED BY THE APPROPRIATE SERVICE TRANSPORTATION OFFICER AND DID NOT AUTHORIZE REIMBURSEMENT. COMP. GEN. 713, 715; B-151254, DATED JUNE 14, 1963, B-155181, DATED NOVEMBER 2, 1964, AND B 138106, DATED DECEMBER 30, 1958.

THE PRESENT STATUTORY AUTHORITY FOR OCEAN SHIPMENT OF MOTOR VEHICLES OF MEMBERS OF THE UNIFORMED SERVICES IS CONTAINED IN 10 U.S.C. 2634. THAT SECTION, AS AMENDED BY THE ACT OF AUGUST 14, 1964, PUBLIC LAW 88 431, 78 STAT. 439, PROVIDES AS FOLLOWS: SEC. 2634. MOTOR VEHICLES: FOR MEMBERS ON PERMANENT CHANGE OF STATION WHEN A MEMBER OF AN ARMED FORCE IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION, ONE MOTOR VEHICLE OWNED BY HIM AND FOR HIS PERSONAL USE MAY BE TRANSPORTED TO HIS NEW STATION AT THE EXPENSE OF THE UNITED STATES---

(1) ON A VESSEL OWNED, LEASED, OR CHARTERED BY THE UNITED STATES; OR

(2) BY PRIVATELY OWNED AMERICAN SHIPPING SERVICES; UNLESS A MOTOR VEHICLE OWNED BY HIM WAS TRANSPORTED IN ADVANCE OF THAT PERMANENT CHANGE OF STATION UNDER SECTION 406 (H) OF TITLE 37.

SECTION 406 (H) OF TITLE 37, U.S.C.ALSO ADDED BY PUBLIC LAW 88-431, REFERRED TO IN 10 U.S.C. 2634, PROVIDES THAT IN THE CASE OF A MEMBER WHO IS SERVING AT A STATION OUTSIDE THE UNITED STATES OR IN HAWAII OR ALASKA, IF THE SECRETARY CONCERNED DETERMINES IT TO BE IN THE BEST INTERESTS OF THE MEMBER OR HIS DEPENDENTS AND THE UNITED STATES, HE MAY, UNDER CERTAIN CIRCUMSTANCES

(1) AUTHORIZE THE MOVEMENT OF THE MEMBER'S DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS AT THAT STATION TO AN APPROPRIATE LOCATION IN THE UNITED STATES OR ITS POSSESSIONS AND PRESCRIBE TRANSPORTATION IN KIND, REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE IN PLACE THEREOF, AS THE CASE MAY BE, AS AUTHORIZED UNDER SUBSECTION (A) OR (B) OF THIS SECTION; AND

(2) AUTHORIZE THE TRANSPORTATION OF ONE MOTOR VEHICLE OWNED BY THE MEMBER AND FOR HIS OR HIS DEPENDENTS' PERSONAL USE TO THAT LOCATION ON A VESSEL OWNED, LEASED, OR CHARTERED BY THE UNITED STATES OR BY PRIVATELY OWNED AMERICAN SHIPPING SERVICES.

NOTHING IN THE LEGISLATIVE HISTORIES OF PUBLIC LAW 88-431 OR 10 U.S.C. 2634 SUGGESTS AN INTENTION ON THE PART OF CONGRESS IN ENACTING SUCH LAWS TO AUTHORIZE, IN THE CASE OF MEMBERS WHO ARRANGE FOR SHIPMENT OF THEIR MOTOR VEHICLES, REIMBURSEMENT OF THE COST INCURRED. SINCE REIMBURSEMENT WAS NOT CONSIDERED TO BE AUTHORIZED UNDER THE CONSISTENT INTERPRETATION OF THE APPLICABLE LAW AND REGULATIONS IN EFFECT PRIOR TO THOSE LAWS IT APPEARS THAT, HAD CONGRESS INTENDED TO CHANGE THE LAW IN THAT RESPECT, IT WOULD HAVE DONE SO IN CLEAR AND UNMISTAKABLE LANGUAGE. IN THIS REGARD, IT APPEARS PERTINENT TO NOTE THAT WHILE 37 U.S.C. 406 (H) (WHICH WAS ENACTED BY PUBLIC LAW 88-431), SPECIFICALLY AUTHORIZES TRANSPORTATION IN KIND, REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE IN PLACE THEREOF AS TO DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS, IT MAKES NO SIMILAR REIMBURSEMENT PROVISION IN THE CASE OF AUTOMOBILES.

THE SITUATIONS MENTIONED BY THE ASSISTANT SECRETARY, WHILE REGRETABLE, AFFORD NO BASIS UPON WHICH WE MAY APPROVE PAYMENTS NOT AUTHORIZED BY LAW. CONSEQUENTLY AND SINCE THE LAW AUTHORIZING OCEAN TRANSPORTATION OF PRIVATELY OWNED MOTOR VEHICLES OF MEMBERS OF THE UNIFORMED SERVICES CONFERS NO SHIPPING ENTITLEMENTS ON THE MEMBERS PERSONALLY AND DOES NOT PROVIDE FOR REIMBURSEMENT WHERE SUCH TRANSPORTATION IS ARRANGED AT PERSONAL EXPENSE, IT IS OUR VIEW THAT THERE IS NO PROPER BASIS FOR AMENDING THE JOINT TRAVEL REGULATIONS TO PROVIDE FOR SUCH REIMBURSEMENT. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.