Eligibility for Certain Travel Allowances Incident to Transfer Between Stations Outside the Continental United States

B-177097, JAN 19, 1973

CIVILIAN PERSONNEL - CHANGE OF OVERSEAS STATIONS HOME LEAVE - DEPENDENT TRAVEL - TRAVEL EXPENSES - MERITORIOUS CLAIM CONCERNING THE LEGALITY OF PAYMENT OF CERTAIN TRAVEL EXPENSES TO [REDACTED], AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, FT. RICHARDSON, AK. IN ORDER FOR AN EMPLOYEE TO BE ELIGIBLE TO RECEIVE AUTHORIZED TRAVEL EXPENSES IN CONNECTION WITH HOME LEAVE BETWEEN TOURS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES, HE MUST HAVE COMPLETED HIS AGREED PERIOD OF SERVICE OR A MINIMUM OF 12 MONTHS AND ENTERED INTO A NEW WRITTEN AGREEMENT FOR ANOTHER PERIOD OF SERVICE. OMB CIRCULAR NO. A-56, SEC. 7.1. MOREOVER, TRANSPORTATION EXPENSES ARE NOT AUTHORIZED THE EMPLOYEE'S IMMEDIATE FAMILY FOR SUCH TRAVEL IF THE EMPLOYEE DOES NOT RETURN TO THE UNITED STATES WITH THEM TO TAKE SUCH LEAVE. SEE 35 COMP. GEN. 101 (1955). HOWEVER, SINCE [REDACTED] IS NOT AT FAULT AND THE DEPENDENT'S TRAVEL EXPENSES WERE INCURRED UNDER ORDERS IN EFFECT AT THE TIME TRAVEL WAS PERFORMED, GAO BELIEVES THIS PART OF THE CLAIM CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF CONGRESS, AND HAS ACCORDINGLY REPORTED IT TO CONGRESS WITH RECOMMENDATION FOR FAVORABLE CONSIDERATION. 31 U.S.C. 236. VOLUME 2, PARA. C4005-3H, JTR, REQUIRES A NEW EMPLOYMENT AGREEMENT WHEN AN EMPLOYEE IS REASSIGNED TO A DIFFERENT OVERSEAS GEOGRAPHICAL LOCALITY PRIOR TO COMPLETION OF HIS TOUR OF DUTY. THE NEW TOUR OF DUTY IS TO BE 12 MONTHS OR THE DIFFERENCE BETWEEN THE TOUR OF DUTY AT THE NEW DUTY STATION, IN THIS CASE, ALASKA, AND THE PERIOD OF SERVICE AT THE OLD DUTY STATION, WHICH EVER IS GREATER. AT THE END OF SUCH TIME, THE EMPLOYEE IS ELIGIBLE FOR TRAVEL UNDER OMB CIRCULAR NO. A-56, SEC. 7.1.

TO LT. COL. KENT:

THIS REFERS TO YOUR LETTER OF MARCH 31, 1972, REFERENCE ARAFA, FORWARDED HERE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE ON SEPTEMBER 21, 1972, PDTATAC CONTROL NO. 72-46, REQUESTING A DECISION ON CERTAIN QUESTIONS PRESENTED PERTAINING TO THE TRAVELING EXPENSES OF [REDACTED], AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, FORT RICHARDSON, ANCHORAGE, ALASKA.

THE INFORMATION OF RECORD SHOWS THAT [REDACTED], AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, WAS TRANSFERRED FROM ALASKA TO OKINAWA ARRIVING AT HIS NEW DUTY STATION AUGUST 23, 1969. AS A RESULT OF THIS MOVE HE WAS REQUIRED, CONSISTENT WITH PARAGRAPH C 4005-3B OF THE JOINT TRAVEL REGULATIONS, VOLUME 2, TO NEGOTIATE A TRANSPORTATION AGREEMENT FOR A 24 MONTH PERIOD BEGINNING WITH THE DAY OF HIS ARRIVAL. AFTER SERVING 12 MONTHS LESS 5 DAYS IN OKINAWA [REDACTED] WAS TRANSFERRED BY REASON OF A REDUCTION IN FORCE FROM OKINAWA TO FORT RICHARDSON. THE TRANSFER WAS PURSUANT TO LETTER ORDERS NUMBER P-579, DATED JULY 9, 1970, WHICH AUTHORIZED A PERMANENT CHANGE OF STATION IN CONJUNCTION WITH RENEWAL AGREEMENT TRAVEL. BY THOSE ORDERS THE EMPLOYEE WAS AUTHORIZED, EFFECTIVE ON OR ABOUT AUGUST 15, 1970, TO VISIT MERIDIAN, MISSISSIPPI, FOR 30 CALENDAR DAYS INCLUDING TRAVEL TIME ALLOWANCE FOR HOME LEAVE IN LIEU OF DENTON, TEXAS, WHICH HAD BEEN DESIGNATED AS HIS PLACE OF ACTUAL RESIDENCE AT THE TIME OF HIS APPOINTMENT WITH THE DEPARTMENT OF THE ARMY IN 1966, AND UPON COMPLETION OF LEAVE TO PROCEED TO FORT RICHARDSON. HIS DEPENDENTS WERE AUTHORIZED, EFFECTIVE ON OR ABOUT AUGUST 1, 1970, TO TRAVEL UNACCOMPANIED AT GOVERNMENT EXPENSE.

TRAVEL WAS PERFORMED BY THE EMPLOYEE DIRECT TO FORT RICHARDSON. [REDACTED] DEPENDENTS DID NOT TRAVEL DIRECT TO FORT RICHARDSON BUT, IN ACCORDANCE WITH THE TRAVEL ORDERS, DEPARTED FROM OKINAWA AUGUST 6, 1970, AND TRAVELED VIA SAN FRANCISCO, CALIFORNIA, DALLAS, TEXAS, AND MERIDIAN, MISSISSIPPI, THEN TO FORT RICHARDSON ARRIVING THERE SEPTEMBER 21, 1970. ON THAT DATE LETTER ORDERS NUMBER P-579 WAS AMENDED BY LETTER ORDERS NUMBER P-780, DELETING THE AUTHORIZATION FOR HOME LEAVE TRAVEL FOR [REDACTED] AND AUTHORIZED DIRECT TRAVEL TO FORT RICHARDSON INCIDENT TO THE PERMANENT CHANGE OF STATION. [REDACTED] WAS REIMBURSED $1,066.09 INCIDENT TO THE TRAVEL OF HIS DEPENDENTS, PLUS $200 AS A MISCELLANEOUS EXPENSE ALLOWANCE.

IT IS [REDACTED] CONTENTION, AS SET FORTH IN HIS STATEMENT DATED NOVEMBER 1, 1971, THAT THE CIVILIAN PERSONNEL OFFICE (CPO) IN OKINAWA REFUSED TO ISSUE TRAVEL ORDERS FOR THE DIRECT, CONCURRENT TRAVEL OF HIM AND HIS DEPENDENTS FROM OKINAWA TO ANCHORAGE, ALASKA, DESPITE HIS CONSISTENT APPEALS AND INSISTENCES THAT THEY DO SO. HE STATES THAT THE CPO REPRESENTATIVE ERRONEOUSLY MAINTAINED THAT THERE WAS NO PROVISION FOR DIRECT TRAVEL TO ALASKA, THAT THE DEPENDENTS MUST GO TO THE CONTINENTAL UNITED STATES, TAKE LEAVE AND AWAIT TRAVEL ORDERS. HE FURTHER STATES THAT THE ORIGINAL TRAVEL ORDER, LETTER ORDERS NUMBER 579, WAS FURNISHED HIM ON JULY 20, 1970, AND ON THAT DATE HE DISCUSSED IT WITH HIS SUPERIOR, MR. JOSHUA KRAMER, DIRECTOR, COMPTROLLER DEPARTMENT, USCAR. AT MR. KRAMER'S SUGGESTION A MEMORANDUM WAS PREPARED JULY 22, 1970, EXPLAINING THE DESIRED AMENDMENTS TO THE TRAVEL ORDER. A COPY OF THIS MEMORANDUM IS IN THE RECORD. THIS WAS ENDORSED BY MR. KRAMER AND PRESENTED TO THE CPO ON THAT DATE FOR ISSUANCE OF AMENDED ORDERS. THE ORDERS, IF AMENDED AS REQUESTED, WOULD HAVE PROVIDED FOR DIRECT TRAVEL OF [REDACTED] AND HIS DEPENDENTS TO ANCHORAGE, ALASKA, AND AMONG OTHER THINGS HAVE DELETED ALL REFERENCE TO RENEWAL AGREEMENT TRAVEL. [REDACTED] WAS NOT ENTITLED UNDER THE APPLICABLE REGULATIONS TO RENEWAL AGREEMENT TRAVEL AND AN AMENDMENT OF THE ORDERS, AS REQUESTED, WOULD HAVE CORRECTED THE ERROR MADE ON THE ORIGINAL ORDERS. [REDACTED] STATES THAT CPO REFUSED TO ISSUE AMENDED ORDERS AND AS A RESULT THEREOF HIS "DEPENDENTS WERE, THROUGH ADMINISTRATIVE ERROR FORCED TO GO TO DALLAS, TEXAS." [REDACTED], ON THE OTHER HAND AND CONTRARY TO THE ORIGINAL TRAVEL ORDER WAS PROVIDED COMMERCIAL TRANSPORTATION DIRECTLY TO ANCHORAGE AND HE STATES, IN THIS RESPECT, THAT HE HAD NO CONTROL OVER THE ROUTING. AS HEREINABOVE STATED, SUBSEQUENT TO THE ARRIVAL OF [REDACTED] DEPENDENTS IN ALASKA THE ORIGINAL TRAVEL ORDERS WERE AMENDED TO PROVIDE FOR DIRECT TRAVEL FROM OKINAWA TO ALASKA. BECAUSE OF THIS YOU HAVE RAISED A QUESTION CONCERNING THE PROPRIETY OF THE REIMBURSEMENT MADE TO [REDACTED], IN THE AMOUNT OF $1,066.09 FOR THE TRAVEL VIA CONTINENTAL UNITED STATES OF HIS DEPENDENTS.

ADDITIONALLY, YOU HAVE RAISED QUESTIONS RELATING TO TRAVEL PERFORMED IN 1971. [REDACTED] AND HIS DEPENDENTS WERE AUTHORIZED TO PERFORM RENEWAL AGREEMENT TRAVEL BY TRAVEL ORDER NO. 58-71, DATED APRIL 22, 1971, FROM ALASKA, TO HIS PLACE OF ACTUAL RESIDENCE, DENTON, TEXAS, AND DEPARTED ALASKA JULY 30, 1971, AND RETURNED AUGUST 14, 1971.

THE SPECIFIC QUESTIONS SUBMITTED ARE AS FOLLOWS:

"A. IS THE PAYMENT OF $1066.09 MADE TO [REDACTED] FOR HIS DEPENDENTS' TRAVEL FROM NAHA, OKINAWA, VIA SAN FRANCISCO, CA; DALLAS, TX; AND MERIDIAN, MS TO ANCHORAGE, AK BASED ON AMENDATORY ORDERS AUTHORIZED?

"B. SINCE [REDACTED] SERVED 1 YEAR IN OKINAWA AND WAS RETURNED TO ALASKA (HIS OLD STATION) BECAUSE OF A RIF, IF THE ANSWER TO QUESTION A IS AFFIRMATIVE, SHOULD HIS RENEWAL AGREEMENT DATE BE CHANGED AND MUST HE SERVE 2 YEARS IN ALASKA BEFORE ENJOYING A TURNAROUND TRIP?

"C. IF YOUR ANSWER TO QUESTION B IS POSITIVE AND [REDACTED] SHOULD BE REQUIRED TO SERVE 2 YEARS, WHAT IS THE PROPRIETY OF PAYMENTS MADE IN GOOD FAITH UNDER TRAVEL ORDER 58-71, DATED 22 APR 71, ON VOUCHER NUMBER 401736 AND ANY SUBSEQUENT PAYMENTS INCLUDING GOVERNMENT TRANSPORTATION REQUESTS ISSUED AFTER THIS DATE?"

IT IS NOTED IN REGARD TO QUESTION "A" THAT ALTHOUGH THE ORDERS ARE DESCRIBED AS "AMENDATORY," SUCH ORDERS WERE IN FACT THE ORIGINAL ORDERS, TRAVEL WAS CONSISTENT THEREWITH, AND SUCH ORDERS WERE AMENDED SUBSEQUENT TO PERFORMANCE OF THE TRAVEL.

5 U.S.C. 5728(A) AUTHORIZES THE EXPENSES OF ROUND-TRIP TRAVEL OF AN EMPLOYEE AND TRANSPORTATION OF HIS IMMEDIATE FAMILY FROM HIS POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO THE PLACE OF HIS ACTUAL RESIDENCE AT THE TIME OF HIS APPOINTMENT OR TRANSFER TO THE POST OF DUTY AFTER HE HAS SATISFACTORILY COMPLETED AN AGREED PERIOD OF SERVICE OUTSIDE THE CONTINENTAL UNITED STATES AND IS RETURNING TO HIS ACTUAL PLACE OF RESIDENCE TO TAKE LEAVE BEFORE SERVING AT THE SAME OR ANOTHER POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES UNDER A WRITTEN AGREEMENT MADE BEFORE DEPARTING FROM THE POST OF DUTY.

APPLICABLE REGULATIONS IN SECTION 7.1 OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966, PROVIDE THAT IN ORDER TO BE ELIGIBLE TO RECEIVE THE AUTHORIZED TRAVEL AND TRANSPORTATION EXPENSES IN CONNECTION WITH LEAVE FOR RETURNING TO PLACE OF RESIDENCE BETWEEN TOURS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES, THE EMPLOYEE MUST HAVE (1) COMPLETED THE AGREED PERIOD OF SERVICE AS PROVIDED IN SECTION 1.3C OF THE CIRCULAR AND (2) ENTERED INTO A NEW WRITTEN AGREEMENT FOR ANOTHER PERIOD OF SERVICE. SECTION 1.3C OF THE CIRCULAR REQUIRES AN EMPLOYEE TO REMAIN IN THE SERVICE OF THE GOVERNMENT FOR A MINIMUM OF 12 MONTHS AT HIS OVERSEAS POST OF DUTY FOLLOWING THE EFFECTIVE DATE OF HIS TRANSFER OR APPOINTMENT BEFORE HE IS ENTITLED TO ROUND-TRIP TRAVEL AT GOVERNMENT EXPENSE FOR THE PURPOSE OF TAKING LEAVE BETWEEN TOURS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES.

IN SOME CASES WE HAVE NOT OBJECTED TO THE GOVERNMENT TERMINATING EMPLOYMENT AGREEMENTS WHICH PROVIDE FOR A 2-YEAR TOUR OF DUTY PRIOR TO THE EXPIRATION DATE WHERE IT IS CONSIDERED FOR THE GOVERNMENT'S BENEFIT TO DO SO AND AUTHORIZE TRAVEL AT GOVERNMENT EXPENSE FOR HOME LEAVE PROVIDED THE EMPLOYEE HAS SERVED AT HIS OVERSEAS POST A MINIMUM OF 12 MONTHS PRIOR TO THE TERMINATION. SEE 37 COMP. GEN. 62 (1957). HOWEVER, THE ABOVE STATUTORY PROVISION DOES NOT AUTHORIZE PAYMENT OF THE TRANSPORTATION EXPENSES OF THE EMPLOYEE'S IMMEDIATE FAMILY FROM THE OVERSEAS POST OF DUTY TO ACTUAL PLACE OF RESIDENCE IN THE UNITED STATES UNLESS THE EMPLOYEE HIMSELF RETURNS TO THE UNITED STATES FOR THE PURPOSE OF TAKING LEAVE. SEE 35 COMP. GEN. 101 (1955). [REDACTED] DID NOT TRAVEL TO THE UNITED STATES WITH HIS IMMEDIATE FAMILY IN AUGUST 1970 FOR THE PURPOSE OF TAKING LEAVE AND THEREFORE REIMBURSEMENT TO HIM FOR THE TRAVEL AND TRANSPORTATION EXPENSES INCURRED BY HIS IMMEDIATE FAMILY WAS IMPROPER. THE PAYMENT OF A MISCELLANEOUS EXPENSE ALLOWANCE OF $200 WAS PROPER SINCE A TRANSFER WAS INVOLVED.

YOUR FIRST QUESTION IS ACCORDINGLY ANSWERED IN THE NEGATIVE.

HOWEVER, 31 U.S.C. 236 PROVIDES:

"SEC 236. MERITORIOUS CLAIMS AGAINST UNITED STATES NOT SUBJECT TO LAWFUL ADJUSTMENT; SUBMISSION TO CONGRESS BY COMPTROLLER GENERAL.

"WHEN THERE IS FILED IN THE GENERAL ACCOUNTING OFFICE A CLAIM OR DEMAND AGAINST THE UNITED STATES THAT MAY NOT LAWFULLY BE ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM OR DEMAND IN THE JUDGMENT OF THE COMPTROLLER GENERAL OF THE UNITED STATES CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, HE SHALL SUBMIT THE SAME TO THE CONGRESS BY A SPECIAL REPORT CONTAINING THE MATERIAL FACTS AND HIS RECOMMENDATION THEREON."

SINCE IT APPEARS THAT [REDACTED] WAS IN NO WAY AT FAULT AND THAT THE TRAVEL AND TRANSPORTATION EXPENSES OF HIS DEPENDENTS WERE INCURRED UNDER ORDERS THAT WERE IN EFFECT AT THE TIME THE TRAVEL WAS PERFORMED, WE CONSIDER THIS PART OF HIS CLAIM TO CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF CONGRESS AND HAVE ACCORDINGLY REPORTED THAT PORTION OF HIS CLAIM TO CONGRESS WITH OUR RECOMMENDATION FOR ITS FAVORABLE CONSIDERATION.

CONCERNING QUESTIONS "B" AND "C" OF YOUR SUBMISSION, PARAGRAPH C 4005 3H, JOINT TRAVEL REGULATIONS, VOLUME 2, REQUIRES A NEW EMPLOYMENT AGREEMENT WHEN AN EMPLOYEE IS REASSIGNED TO A DIFFERENT OVERSEAS GEOGRAPHICAL LOCALITY PRIOR TO COMPLETION OF HIS TOUR OF DUTY. THE NEW TOUR OF DUTY IS TO BE 12 MONTHS OR THE DIFFERENCE BETWEEN THE TOUR OF DUTY AT THE NEW DUTY STATION AND THE PERIOD OF SERVICE COMPLETED AT THE OLD DUTY STATION, WHICHEVER IS GREATER. PARAGRAPH C 4005-3 REQUIRES TOURS OF DUTY IN ALASKA, EXCEPT IN CERTAIN LOCATIONS NOT HERE PERTINENT, TO BE FOR A PERIOD OF 36 MONTHS UNDER ORIGINAL AND 24 MONTHS UNDER RENEWAL AGREEMENTS. VIEW OF THE CIRCUMSTANCES UNDER WHICH THE EMPLOYEE RETURNED TO ALASKA FOR DUTY IT IS OUR VIEW THAT THE 24-MONTH PERIOD APPLICABLE TO RENEWAL AGREEMENTS SHOULD APPLY. THEREFORE, SINCE [REDACTED] HAD SERVED 12 MONTHS (LESS 5 DAYS) UNDER AN EMPLOYMENT AGREEMENT IN OKINAWA THE PERIOD OF SERVICE SPECIFIED IN HIS RENEWAL AGREEMENT UPON RETURN TO ALASKA SHOULD HAVE BEEN FOR 12 MONTHS AND 5 DAYS. THUS HE WAS ENTITLE TO ROUND-TRIP TRAVEL AT GOVERNMENT EXPENSE FOR THE PURPOSE OF TAKING LEAVE BETWEEN TOURS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES IN AUGUST 1971.

IT FOLLOWS THAT QUESTION "B" IS FOR ANSWERING IN THE NEGATIVE. AS TO QUESTION "C" WE NOTE THAT THE TRAVEL UNDER THE ORDERS OF APRIL 22, 1971, WAS NOT COMMENCED UNTIL JULY 30, 1971. THEREFORE, THE EXPENSES OF HOME LEAVE TRAVEL AT THAT TIME MAY BE REGARDED AS PROPERLY AUTHORIZED.