B-170966, NOV 30, 1970, 50 COMP GEN 376

B-170966, NOV 30, 1970, 50 COMP GEN 376

TRANSPORTATION - AUTOMOBILES - MILITARY PERSONNEL - ADVANCE SHIPMENTS THE SHIPMENT OF PRIVATELY OWNED VEHICLES PRIOR TO THE RECEIPT OF PERMANENT CHANGE-OF-STATION ORDERS BY MEMBERS OF THE UNIFORMED SERVICES MAY BE AUTHORIZED ON THE BASIS THE PHRASE "ORDERED TO MAKE A CHANGE OF PERMANENT STATION" IN 10 U.S.C. 2634(A), THE AUTHORITY FOR THE TRANSPORTATION OF MOTOR VEHICLES, IS IDENTICAL TO THE PHRASE USED IN 37 U.S.C. 406(A) TO AUTHORIZE THE TRANSPORTATION OF A MEMBER'S DEPENDENTS, PURSUANT TO WHICH PARAGRAPH M7000, ITEM 8, OF THE JOINT TRAVEL REGULATIONS (JTR) PROVIDES FOR THE TRANSPORTATION OF DEPENDENTS IN ADVANCE OF ORDERS WHEN SUPPORTED BY A CERTIFICATE BY APPROPRIATE AUTHORITY STATING THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE OF THE CHANGE-OF-STATION ORDERS THAT SUCH ORDERS WOULD ISSUE. ACCORDINGLY, THE JTR MAY BE AMENDED TO AUTHORIZE THE ADVANCE SHIPMENT OF MOTOR VEHICLES UNDER THE SAME CIRCUMSTANCES AS IS PROVIDED BY PARAGRAPH M7000, FOR THE ADVANCE TRANSPORTATION OF DEPENDENTS.

TO THE SECRETARY OF THE ARMY, NOVEMBER 30, 1970:

BY LETTER OF SEPTEMBER 23, 1970, THE ASSISTANT SECRETARY OF THE ARMY HAS REQUESTED A DECISION WHETHER VOLUME 1, JOINT TRAVEL REGULATIONS, MAY BE AMENDED TO PROVIDE AUTHORITY FOR THE SHIPMENT OF PRIVATELY OWNED VEHICLES IN ADVANCE OF ORDERS ON THE SAME BASIS AS IS AUTHORIZED FOR SHIPMENT OF HOUSEHOLD EFFECTS. THE REQUEST HAS BEEN ASSIGNED CONTROL NO. 70-44 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

PARAGRAPH M8015, ITEM 1, JOINT TRAVEL REGULATIONS, AUTHORIZES THE ADVANCE SHIPMENT OF HOUSEHOLD GOODS BECAUSE OF EMERGENCY, EXIGENCY OF THE SERVICE, OR SERVICE NECESSITY. THE ASSISTANT SECRETARY SAYS, HOWEVER, THAT THE JOINT TRAVEL REGULATIONS DO NOT NOW CONTAIN AUTHORITY FOR THE SHIPMENT OF PRIVATELY OWNED VEHICLES PRIOR TO THE RECEIPT OF PERMANENT CHANGE-OF- STATION ORDERS EXCEPT IN CONNECTION WITH:

A. THE EARLY DEPARTURE OF DEPENDENTS FROM A MEMBER'S OVERSEAS DUTY STATION UNDER UNUSUAL OR EMERGENCY CONDITIONS.

B. THE OFFICIAL REPORT THAT A MEMBER IS IN A CASUALTY STATUS.

C. EVACUATION OF DEPENDENTS FROM AN OVERSEAS DUTY STATION.

THE ASSISTANT SECRETARY SAYS FURTHER THAT IT HAS BEEN SUGGESTED THAT THE PROPOSED AMENDMENT WOULD BE ADVANTAGEOUS SINCE IT WOULD DECREASE THE INCONVENIENCE MANY MEMBERS EXPERIENCE BECAUSE THEY ARE FREQUENTLY REQUIRED TO USE LEAVE WHILE WAITING AT A PORT FOR THE ARRIVAL OF THEIR PRIVATELY OWNED VEHICLES. IT WOULD ALSO DECREASE THE PERSONAL COST OF TRANSSHIPMENT OF THE VEHICLE WHICH ARRIVES AFTER THE MEMBER HAS BEEN REQUIRED TO DEPART THE PORT AREA IN ORDER TO REPORT AT THE NEW DUTY STATION ON THE DATE REQUIRED BY THE ORDERS. DOUBT AS TO THE VALIDITY OF THE PROPOSED AMENDMENT IS OCCASIONED BY OUR DECISIONS IN 45 COMP GEN. 544 AND 577 (1966), HOLDING THAT THERE IS NO AUTHORITY FOR THE FORWARDING OF A PRIVATELY OWNED VEHICLE AT GOVERNMENT EXPENSE UNDER ORDERS WHICH ARE SUBSEQUENTLY AMENDED, CANCELLED, OR REVOKED.

PRIOR TO JUNE 30, 1932, PRIVATELY OWNED AUTOMOBILES OF CIVILIAN AND MILITARY EMPLOYEES OF THE GOVERNMENT WERE MOVED AT GOVERNMENT EXPENSE ON A PERMANENT CHANGE OF STATION AS PART OF THEIR HOUSEHOLD AND PERSONAL EFFECTS. SEE, FOR EXAMPLE, 2 COMP. GEN. 601 (1923); 5 COMP. GEN. 5 (1925). SECTION 209 OF THE ACT OF JUNE 30, 1932, HOWEVER, PROVIDED THAT AFTER JUNE 30, 1932, 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. THESE PROVISIONS ARE PRESENTLY CODIFIED IN SECTION 5727(A) OF TITLE 5 OF THE U.S.C. AS FOLLOWS:

EXCEPT AS SPECIFICALLY AUTHORIZED BY STATUTE, AN AUTHORIZATION IN A STATUTE OR REGULATION TO TRANSPORT THE EFFECTS OF AN EMPLOYEE OR OTHER INDIVIDUAL AT GOVERNMENT EXPENSE IS NOT AN AUTHORIZATION TO TRANSPORT AN AUTOMOBILE.

INSOFAR AS WE ARE AWARE, THE ONLY STATUTORY PROVISIONS AUTHORIZING THE TRANSPORTATION OF AN AUTOMOBILE AS PART OF THE PERSONAL EFFECTS OF AN EMPLOYEE ARE CONTAINED IN 37 U.S.C. 554 (MILITARY PERSONNEL) AND 5 U.S.C. 5564 (CIVILIAN EMPLOYEES) AUTHORIZING THE TRANSPORTATION OF HOUSEHOLD EFFECTS OF MISSING PERSONS. THE EARLY MOVEMENT PROVISIONS OF THE REGULATIONS REFERRED TO IN THE ASSISTANT SECRETARY'S LETTER ARE BASED UPON THOSE PROVISIONS AND 37 U.S.C. 406(H).

THE GENERAL STATUTORY AUTHORITY FOR THE TRANSPORTATION OF MOTOR VEHICLES OF MEMBERS OF THE UNIFORMED SERVICES ON PERMANENT CHANGE OF STATION IS CONTAINED IN SECTION 2634 OF TITLE 10, U.S. CODE, AS FOLLOWS:

(A) WHEN A MEMBER OF AN ARMED FORCE IS ORDERED TO MAKE A CHANGE OF PERMANENT STATION, ONE MOTOR VEHICLE OWNED BY HIM AND FOR HIS PERSONAL USE OR THE USE OF HIS DEPENDENTS MAY, UNLESS A MOTOR VEHICLE OWNED BY HIM WAS TRANSPORTED IN ADVANCE OF THAT CHANGE OF PERMANENT STATION UNDER SECTION 406(H) OF TITLE 37, BE TRANSPORTED, AT THE EXPENSE OF THE UNITED STATES, TO HIS NEW STATION OR SUCH OTHER PLACE AS THE SECRETARY CONCERNED MAY AUTHORIZE -

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

(2) BY PRIVATELY OWNED AMERICAN SHIPPING SERVICES; OR

(3) BY FOREIGN-FLAG SHIPPING SERVICES IF SHIPPING SERVICES DESCRIBED IN CLAUSES (1) AND (2) ARE NOT REASONABLY AVAILABLE.

WHEN THE SECRETARY CONCERNED, OR HIS DESIGNEE, DETERMINES THAT A REPLACEMENT FOR THAT MOTOR VEHICLE IS NECESSARY FOR REASONS BEYOND THE CONTROL OF THE MEMBER AND IS IN THE INTEREST OF THE UNITED STATES, AND HE APPROVES THE TRANSPORTATION IN ADVANCE, ONE ADDITIONAL MOTOR VEHICLE OF THE MEMBER MAY BE SO TRANSPORTED.

(B) IN THIS SECTION "CHANGE OF PERMANENT STATION" MEANS THE TRANSFER OR ASSIGNMENT OF A MEMBER OF THE ARMED FORCES FROM ONE PERMANENT STATION TO ANOTHER. IT INCLUDES THE CHANGE FROM HOME OR FROM THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY TO FIRST STATION UPON APPOINTMENT, CALL TO ACTIVE DUTY, ENLISTMENT, OR INDUCTION, AND FROM LAST DUTY STATION TO HOME OR TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY UPON SEPARATION FROM THE SERVICE, PLACEMENT UPON THE TEMPORARY DISABILITY RETIRED LIST, RELEASE FROM ACTIVE DUTY, OR RETIREMENT. IT ALSO INCLUDES AN AUTHORIZED CHANGE IN HOME YARD OR HOME PORT OF A VESSEL.

SECTION 406(B) OF TITLE 37, U.S.C. PROVIDE THAT, "IN CONNECTION WITH A CHANGE OF TEMPORARY OR PERMANENT STATION," A MEMBER OF THE UNIFORMED SERVICES IS ENTITLED TO THE TRANSPORTATION OF BAGGAGE AND HOUSEHOLD EFFECTS WITHIN WEIGHT ALLOWANCES PRESCRIBED BY THE SECRETARIES CONCERNED. SINCE THOSE PROVISIONS AUTHORIZE THE MOVEMENT OF HOUSEHOLD EFFECTS "IN CONNECTION WITH" A CHANGE OF STATION, WE HAVE NOT QUESTIONED THE REGULATORY PROVISIONS, PRESENTLY PARAGRAPH M8015-1 OF THE JOINT TRAVEL REGULATIONS, PROVIDING FOR SUCH MOVEMENT IN CERTAIN CASES PRIOR TO THE ISSUANCE OF ORDERS WHEN THE MOVEMENT IS IN FACT IN CONNECTION WITH A CHANGE OF STATION.

THE PROVISIONS OF 10 U.S.C. 2634 QUOTED ABOVE, HOWEVER, DO NOT PROVIDE FOR THE TRANSPORTATION OF AN AUTOMOBILE IN CONNECTION WITH THE CHANGE OF STATION BUT AUTHORIZE SUCH TRANSPORTATION ONLY WHEN A MEMBER IS "ORDERED TO MAKE A CHANGE OF PERMANENT STATION." IN VIEW OF THE DIFFERENCE IN THE STATUTORY PROVISIONS AND THE EXPRESS PROHIBITION IN 5 U.S.C. 5727(A) AGAINST THE MOVEMENT OF AN AUTOMOBILE AS HOUSEHOLD EFFECTS, EXCEPT AS MAY BE AUTHORIZED BY STATUTE, WE FIND NO LEGAL BASIS FOR A CONCLUSION THAT THE HOUSEHOLD EFFECTS EARLY MOVEMENT REGULATIONS MAY BE MADE APPLICABLE TO THE TRANSPORTATION OF AUTOMOBILES AND YOUR QUESTION IS ANSWERED IN THE NEGATIVE.

THE PHRASE "ORDERED TO MAKE A CHANGE OF PERMANENT STATION" IN SECTION 2634(A) IS IDENTICAL WITH THAT USED IN SECTION 406(A) OF TITLE 37, U.S.C. AUTHORIZING THE TRANSPORTATION OF A MEMBER'S DEPENDENTS WHEN HE IS "ORDERED TO MAKE A CHANGE OF PERMANENT STATION." WE HAVE NOT QUESTIONED THE VALIDITY OF PARAGRAPH M7000, ITEM 8, JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO SECTION 406(A), AUTHORIZING THE TRANSPORTATION OF DEPENDENTS IN ADVANCE OF ORDERS WHEN SUPPORTED BY A CERTIFICATE BY APPROPRIATE AUTHORITY STATING THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE OF CHANGE-OF-STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED. ACCORDINGLY, WE WOULD NOT OBJECT TO AN AMENDMENT OF THE JOINT TRAVEL REGULATIONS PROVIDING AUTHORITY FOR THE ADVANCE SHIPMENT OF A MOTOR VEHICLE OF A MEMBER OF THE UNIFORMED SERVICES ON CHANGE OF PERMANENT STATION UNDER THE SAME CIRCUMSTANCES AS IS PROVIDED BY PARAGRAPH M7000, ITEM 8, FOR THE ADVANCE TRANSPORTATION OF DEPENDENTS.