The use of government-owned vehicles for the comfort or health and welfare of personnel in deployed or remote locations

Army Lawyer, April, 2007 by Thomas H. Dobbs

I. Introduction: The Beginning of the Story

My interest in the topic of government-owned vehicles (GOVs) (1) began at Gwangju Air Base, Republic of Korea. (2) It was around 2300 hours of my first night in country, when my commander woke me up from a jet-lagged stupor. He wanted to know if it was "legal" to transport a bus full of Airmen in the morning to the base exchange at Kunsan Air Base to replenish toiletry and clothing items destroyed during some flooding in our "tent city." He also thought the Airmen needed to recharge their batteries at Kunsan's new gym and its other morale, welfare and recreational (MWR) facilities. I said, "Yes," and spent the rest of my deployment justifying the commander's decision to much of the Peninsula.

This article familiarizes judge advocates (JAs) with the proper use of GOVs for "life support" activities in a deployed or remote location. Life support activities, in the context of this discussion, consist of GOV transportation to those places that are "required for the comfort or health and welfare of the member." (3) Life support activities include things such as the chaplain's program, inter-installation athletic competitions, the base exchange/commissary, and MWR programs under certain circumstances. (4) The concepts discussed will help commanders improve mission performance by ensuring that their personnel obtain lawful transportation to morale enhancing life support activities. Of course, the basic rules and principles governing the use of GOVs are the same whether you are located at a large continental United States (CONUS) installation or at a small outpost in Iraq. The application of those rules to a particular set of facts and circumstances at a deployed or remote location, however, can often lead to more permissive results. A "no" at Fort Hood might be a "yes" at Camp Victory. (5) Moreover, several provisions within the rules specifically provide for uses of GOVs in a deployed or remote location that are not available at an adequately serviced CONUS installation.

This article begins by providing a brief overview of the statutory rule that GOVs may only be utilized for "official use." (6) The discussion explains the key role played by commanders when exercising their discretion in determining what qualifies as official use. The ensuing sections of the article then analyze the regulations that authorize GOVs to be used for life support activities. To facilitate the discussion, the article breaks down life support activities into two general categories of nonrecreational and recreational. The bulk of the discussion analyzes when GOVs may be used for non-recreational and B recreational life support activities. Next, the article explains how the Department of Defense (DOD) guidelines for the spending of appropriated funds (APF) on MWR impose certain constraints on the ways that GOVs can be used for life support activities. Practical steps will be discussed on how to provide GOV transportation for MWR activities without running afoul of these rules. Finally, the conclusion summarizes the main learning points through a brief discussion of the Gwangju Air Base scenario from the opening paragraph.

II. The Rule: Official Use

The rule governing the use of GOVs is simple: the use of GOVs is restricted to "official purposes" only. (7) The correct application of the rule requires an understanding of the crucial role played by the commander in determining what is an official use.

A. The Commander's "Official Use Determination"

"The determination as to whether a particular use is for official purposes is a matter of administrative discretion to be exercised within applicable law and regulations." (8) In the military, commanders (installation level commanders or higher, depending on the use of the GOVs) determine what constitutes official use of motor vehicles. (9) "In making such a determination, consideration shall be given to all pertinent factors, including whether the transportation is: (1) essential to the successful completion of a DOD function, activity or operation, and (2) consistent with the purpose for which the motor vehicle was acquired." (10) GOVs may not be "provided by the Department of Defense for the purpose of conducting personal business or engaging in other activities of a personal nature by military or civilian personnel, members of their families, or others." (11)

Each military Service has enacted its own regulatory guidance for the use of GOVs. (12) In a few instances, this guidance is more restrictive (13) than the parameters prescribed by the DOD Regulation 4500.36-R, Management, Acquisition, and Use of Motor Vehicles (DOD Reg. 4500.36-R). (14) In general, however, each Service's regulation more or less adopts the DOD guidance without stricter limitations, though often with greater detail. (15) For example, the applicable Air Force Instruction provides a helpful four-part test to assist commanders in making an official use determination in those situations when the proposed use is not already expressly authorized by the regulation. (16) Army Regulation 58-1, on the other hand, generally takes a more hands-off approach and simply states that the use of GOVs "is restricted to official purposes only." (17) Additional important guidance for what constitutes official use of an Army GOV is found in the Secretary of the Army Travel Policy. (18)