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

As a result of this confusion, the military Services each responded differently to the imprecise and seemingly counterintuitive guidance provided by the 1994 version of DOD Reg. 4500.36-R. Furthermore, none of the Services' motor vehicle regulations have been updated to reflect the new 2007 version of DOD Reg. 4500.36-R. Therefore, the treatment of the applicability of the Morale Requirement across the four Services remains inconsistent. Despite the current state of flux, and draftsmanship faults of the 1994 version of DOD Reg. 4500.36-R, however, in this author's opinion, the Army got it fight.

The Army expressly applies the Morale Requirement to no-fare MWR trips and tours (88) for members on both temporary and permanent duty status. (89) This is important, because if the Morale Requirement was dispensed with for personnel on permanent duty status, it would be difficult for the DOD to lawfully justify a recreational MWR trip as an official use. To satisfy the conditions of subparagraph (c) of 41 C.F.R. [section] 301-10.201, a commander must determine that the use of GOVs for no-fare MWR is an official use. The Morale Requirement triggers such a determination by the commander. (90) It also focuses the commander's official use determination on the specific facts and circumstances that make the use of a GOV for a MWR activity necessary to "foster the continued efficient performance of Government business." (91)

The Marines also got it right, but not as succinctly. Marine Corps Order P11240.106B, paragraph 2003.2.b expressly limposes the Morale Requirement on all uses of GOVs to transport personnel to MWR activities, whether on permanent or temporary duty. (92) Paragraph 2003 does not, however, include the DOD-imposed condition that the use must be fare-free. (93) Instead, the fare-free condition is provided in paragraph 2006.3.a.7. (94) Thus, these two paragraphs must be read together in order to understand how to properly authorize the use of GOVs for MWR activities. (95)

The Air Force, on the other hand, fails to mention the Morale Requirement anywhere in its instructions concerning the use of no-fare GOVs for MWR. (96) Just because AFI 24-301 failed to include the Morale Requirement does not mean the DOD provision does not apply. Even in a deployed location where non-appropriated fund [NAF] and commercial transportation are not available, the Air Force commander must still determine that failure to provide such no-fare service would have an adverse effect on morale.

The Air Force does, however, impose a different requirement that is severely limiting. Air Force Instruction 24-301 requires that, "[w]hen available, NAF and/or commercial transportation sources will be used." (97) Practically speaking, this requirement to use NAF and\or commercial transportation sources eliminates the use of no-fare GOVs in virtually all situations other than deployments and the most remote of CONUS locations. (98) Air Force installations located where NAF or commercial transportation are available for MWR trips cannot take advantage of no-fare GOV transport for MWR.