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

1. Expressly Authorized Uses Are Non-Exclusive

Each Service regulation governing the use of GOVs includes a list of expressly authorized uses. When reading these Service regulations, it is important to remember that the lists of expressly authorized uses are not exclusive. (19) These lists are for guidance purposes only. Just because a use is not expressly authorized does not necessarily mean that it cannot be done. While the well-beaten track may be the safest path, the needs of the mission may require adventuring beyond the list of common uses. Nobody needs a lawyer to help them read a list, and rest assured, straightforward uses are not the ones a JA will be called upon to arbitrate. When faced with a situation where the official purpose of the proposed GOV use is unclear, the most important element to analyze is commander's intent.

2. Commander's Intent

The commander's intent for the use of the vehicle is critical to all GOV official use determinations. The law gives great deference to "administrative discretion" in determining what constitutes official use. (20) As a result, if a proposed use is not expressly authorized by service guidance, the practitioner must engage the commander with approval authority in order to obtain his command intent for the use of the vehicle. In turn, the commander must determine whether the proposed use is for the purpose of furthering the unit's mission. (21) This determination must be made on a case-by-case basis. (22) Once the commander makes a positive official use determination, the use is permissible as long as it is not prohibited by applicable laws, regulations, or policies.

The importance of commander's intent cannot be overemphasized. Inevitably in close-call situations, the difference between an authorized and an unlawful use of a GOV hinges on whether the government employee sought permission from the appropriate agency supervisor. Case law and Comptroller General opinions are full of examples where the government employee was sanctioned for failing to seek permission to use a GOV when the official nature of the use was unclear. (23) For that reason, it is imperative to seek the commander's permission to use a GOV for activ expressly authorized by service regulations. (24)

In making his decision, the commander must affirmatively determine

that the use of the GOV is for an official purpose. This process is especially critical where the proposed activity could rationally be seen as serving both mission and non-mission related purposes. The best practice is to document the commander's intent in a detailed memorandum that explains why the particular facts and circumstances of the mission support a determination of official use. Drafting the commander's memorandum, of course, is where lawyers earn their pay. At least one excellent reason to memorialize the commander's official use determination is that the penalties for unlawfully using a GOV are stiff.

B. Penalties For Misuse

The ramifications for misusing GOVs include administrative, criminal, and financial penalties. A civilian employee who willfully uses or authorizes the use of a GOV "for other than official purposes shall be suspended from duty by the head of the department concerned, without compensation, for not less than one month and shall be suspended for a longer period or summarily removed from office if circumstances warrant." (25) Further, any person who knowingly misuses GOVs "may be subject to criminal prosecution and, upon conviction, to fines or imprisonment." (26) Military personnel who willfully use or authorize the use of a GOV for other than an official purpose can be disciplined under provisions of the Uniform Code of Military Justice. (27) If the misuse occurred during a temporary duty assignment, the misfeasor may also be held "responsible for any additional cost resulting from unauthorized use...." (28) In short, it is well worth the effort to seek the commander's determination of official use and to thoroughly document his decision. This is especially true when the commander wants to use GOVs for transportation to life support activities. People tend to watch GOVs closely, and questions are sometimes raised when GOVs are used in a non-customary manner.