B-150056, JAN. 7, 1963

B-150056, JAN. 7, 1963

TO CAPTAIN JOHN R. LEEDS, USN (RETIRED):

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 27, 1962, REQUESTING REVIEW OF OUR SETTLEMENT DATED SEPTEMBER 20, 1962, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR THE COST OF SHIPMENT OF YOUR AUTOMOBILE FROM LEGHORN, ITALY, TO NEW YORK, NEW YORK, INCIDENT TO YOUR RETURN FROM OVERSEAS.

BY ORDERS OF FEBRUARY 20, 1962, YOU WERE DETACHED FROM DUTY AS COMMANDER MILITARY SEA TRANSPORTATION SERVICE, MEDITERRANEAN SUB AREA, LEGHORN, ITALY, AND DIRECTED TO PROCEED TO A PORT IN THE CONTINENTAL UNITED STATES AND ON ARRIVAL PROCEED TO WASHINGTON, D.C., REPORTING FOR TEMPORARY DUTY AWAITING ACTION ON REQUEST FOR RETIREMENT. YOU WERE AUTHORIZED TO DELAY UNTIL MARCH 26, 1962, IN REPORTING. ON FEBRUARY 19, 1962, YOU FILED A REQUEST WITH THE PORT COMMANDER, LEGHORN PORT OF EMBARKATION, FOR CONCURRENT SHIPMENT OF A PRIVATELY OWNED FOREIGN MADE 1962 MERCEDES AUTOMOBILE. THIS REQUEST WAS DENIED FOR THE REASON THAT UNDER CURRENT RESTRICTIONS FOREIGN MANUFACTURED PRIVATELY OWNED VEHICLES PURCHASED AFTER MARCH 6, 1961, WERE NOT AUTHORIZED TO BE SHIPPED AT GOVERNMENT EXPENSE. ON MARCH 11, 1962, YOU SHIPPED YOUR CAR AT YOUR OWN EXPENSE ON THE SS EXCALIBUR, A COMMERCIAL VESSEL OF AMERICAN REGISTRY, FROM LEGHORN, ITALY, TO NEW YORK, NEW YORK. YOUR CLAIM FOR REIMBURSEMENT OF SUCH EXPENSE, IN THE AMOUNT OF $300, WAS DISALLOWED BY OUR SETTLEMENT DATED SEPTEMBER 20, 1962, FOR THE REASON THAT THE STATUTORY PROVISIONS AUTHORIZING THE USE OF PRIVATELY OWNED AMERICAN SHIPPING SERVICES FOR THE TRANSPORTATION OF MOTOR VEHICLES OF MEMBERS OF THE UNIFORMED SERVICES IS NOT SELF-EXECUTING AND APPLICABLE NAVAL REGULATIONS PROHIBITED THE SHIPMENT OF FOREIGN MADE VEHICLES AT GOVERNMENT EXPENSE IN THE CIRCUMSTANCES INVOLVED IN YOUR CASE. AS A BASIS FOR ALLOWANCE OF YOUR CLAIM YOU STATE THAT YOU HAD REQUESTED THE PROPER AUTHORITY TO SHIP YOUR PRIVATELY OWNED VEHICLE, WHICH REQUEST WAS NOT APPROVED, AND THAT IT IS YOUR BELIEF THAT THE IMPLEMENTING REGULATIONS ISSUED BY THE SECRETARY OF THE NAVY IN EFFECT NEGATED THE CONGRESSIONAL AUTHORIZATION AND ARE DISCRIMINATORY.

THE STATUTORY AUTHORITY FOR SHIPMENT AT GOVERNMENT EXPENSE OF PRIVATELY OWNED VEHICLES OF MEMBERS OF THE NAVY IS SET FORTH IN 10 U.S.C. 6157. IS THERE PROVIDED THAT WHEN A MEMBER OF THE NAVY IS AUTHORIZED TO MAKE A PERMANENT CHANGE OF STATION, ONE MOTOR VEHICLE OWNED BY HIM MAY BE TRANSPORTED TO HIS NEW STATION ON A VESSEL OWNED BY THE UNITED STATES. THE PERMISSIVE AUTHORITY TO SHIP ONE MOTOR VEHICLE OWNED BY A MEMBER OF THE NAVY WAS ENLARGED BY THE ACT OF MAY 28, 1956, 70 STAT. 187, 46 U.S.C. 1241 (C), TO AUTHORIZE THE UTILIZATION OF PRIVATELY OWNED AMERICAN SHIPPING SERVICES FOR THE TRANSPORTATION OF THE VEHICLE. THIS AUTHORITY, HOWEVER, DID NOT CHANGE THE REQUIREMENT THAT THE SHIPMENT BE OTHERWISE AUTHORIZED BY LAW. HOWEVER, SHIPPING ENTITLEMENT UNDER THE ACT OF MAY 28, 1956, DEPENDS UPON ENTITLEMENT UNDER 10 U.S.C. 6157. ENTITLEMENT UNDER 10 U.S.C. 6157 IS NOT ABSOLUTE BUT IS PERMISSIVE WITHIN THE DISCRETION OF THE SECRETARY OF THE NAVY AND IS GOVERNED BY DEPARTMENTAL REGULATIONS. THE FOLLOWING PERTINENT REGULATIONS FOR NAVAL PERSONNEL ARE FOUND IN BUREAU OF SUPPLIES AND ACCOUNTS MANUAL, VOLUME V:

"58302 ALLOWANCES AND RESTRICTIONS

"2. RESTRICTIONS ON FOREIGN MADE VEHICLES

"A. GENERAL. EXCEPT AS PROVIDED IN SUBPAR. B, THE SHIPMENT AT GOVERNMENT EXPENSE OR ON GOVERNMENT VESSELS AT THE INDIVIDUAL'S EXPENSE OF ANY FOREIGN MADE MOTOR VEHICLE PURCHASED BY DEPARTMENT OF DEFENSE PERSONNEL OR THEIR DEPENDENTS OVERSEAS OR FOR DELIVERY OVERSEAS IS PROHIBITED * * *

"B. EXCEPTIONS. THE RESTRICTIONS IN SUBPAR. A DO NOT APPLY UNDER THE FOLLOWING CONDITIONS:

"1. MOTOR VEHICLES OWNED BY PERSONNEL OR ON ORDER PRIOR TO 6 MARCH 1961;

OTHER EXCEPTIONS SET OUT IN SUBPARAGRAPH B HAVE NO APPLICATION IN CASES SUCH AS YOURS INVOLVING THE PURCHASE IN ITALY OF A NEW FOREIGN MADE MOTOR VEHICLE. THE QUOTED PROVISIONS IN PARAGRAPH 58302-2, ARE CONSISTENT WITH THE REQUIREMENTS OF INSTRUCTIONS OF THE SECRETARY OF DEFENSE TO ALL MILITARY DEPARTMENTS IN MEMORANDUM DATED MARCH 6, 1961, QUOTED IN PERTINENT PART IN ALNAV 10/61, DATED MARCH 6, 1961.

UNDER THE GOVERNING REGULATIONS THE APPROPRIATE GOVERNMENT SHIPPING OFFICER WAS PROHIBITED FROM SHIPPING YOUR CAR BECAUSE IT WAS A FOREIGN MADE MOTOR VEHICLE PURCHASED SUBSEQUENT TO MARCH 6, 1961, AND NEITHER THE STATUTE NOR THE REGULATIONS CONTAIN ANY PROVISION FOR REIMBURSING A MEMBER WHO MAKES HIS OWN ARRANGEMENTS FOR SHIPPING HIS VEHICLE ON A COMMERCIAL VESSEL.

SINCE YOU WERE NOT AUTHORIZED TO MAKE PERSONAL ARRANGEMENTS FOR THE SHIPMENT OF YOUR AUTOMOBILE TO THIS COUNTRY AT GOVERNMENT EXPENSE AND THE APPROPRIATE NAVAL SHIPPING OFFICER HAD NO AUTHORITY TO ARRANGE FOR ITS SHIPMENT, THERE IS NO BASIS ON WHICH WE MAY GIVE YOUR CLAIM FAVORABLE CONSIDERATION. ACCORDINGLY, THE SETTLEMENT OF SEPTEMBER 20, 1962, WAS CORRECT AND IS SUSTAINED.