B-163113, SEPT. 19, 1968

B-163113, SEPT. 19, 1968

TO MR. LORIN D. ANDERSON:

THIS IS IN REPLY TO YOUR LETTER OF JULY 12, 1968, APPEALING FROM OUR DECISION OF JUNE 27, 1968, B-163113, WHICH DIRECTED RECOVERY OF PER DIEM IN THE AMOUNT OF $100.31 ADMINISTRATIVELY PAID TO YOU FOR YOUR DEPENDENTS' RETURN TRAVEL FROM SAIPAN, MARIANA ISLANDS, TO DENVER, COLORADO, INCIDENT TO YOUR SEPARATION ORDERS.

IT IS YOUR VIEW THAT THE ENTITLEMENT OF YOUR FAMILY TO PER DIEM IN CONNECTION WITH SEPARATION TRAVEL IS GOVERNED BY THE PROVISIONS OF TRUST TERRITORY ADMINISTRATIVE DIRECTIVE 67-12 DATED SEPTEMBER 6, 1967, EFFECTIVE JULY 1, 1967, RATHER THAN BUREAU OF THE BUDGET CIRCULAR NO. A- 56. IN THIS REGARD PARAGRAPH III OF THE DIRECTIVE PROVIDES AS FOLLOWS:

"III PER DIEM RATE FOR DEPENDENTS IN TRAVEL STATUS ON RECRUITMENT, TERMINATION, OR HOME LEAVE TRAVEL. "PER DIEM WILL BE PAID TO THE EMPLOYEE'S IMMEDIATE FAMILY WHILE TRAVELING BETWEEN THE OLD AND NEW OFFICIAL STATIONS, REGARDLESS OF WHERE THE OLD AND THE NEW STATIONS ARE LOCATED, OR WHILE TRAVELING FROM THE OFFICIAL STATION TO POINT OF RECRUITMENT, IN THE CASE OF TERMINATION, OR FROM OFFICIAL DUTY STATION TO POINT OF RECRUITMENT AND RETURN TO OFFICIAL DUTY STATION, IN THE CASE OF ROUND-TRIP TRAVEL ON HOME LEAVE; EXCEPT THAT IF AN EMPLOYEE TERMINATES HIS EMPLOYMENT IN THE TRUST TERRITORY IN ORDER TO HAVE THE 20 PERCENT POST DIFFERENTIAL INCLUDED IN HIS SALARY, AND LUMP SUM PAYMENT, HE AND HIS DEPENDENTS ARE NOT ELIGIBLE FOR PER DIEM ON THE TRIP HOME. "MAXIMUM PER DIEM ALLOWANCES ARE:

"A. FOR SPOUSE, WHEN ACCOMPANIED BY THE EMPLOYEE, THREE-FOURTHS OF THE EMPLOYEE'S RATE WITH A MINIMUM OF $6.00. IF THE EMPLOYEE RECEIVES A PER DIEM OF LESS THAN $6.00, THE SPOUSE WILL RECEIVE THE SAME RATE. WHEN SPOUSE IS UNACCOMPANIED BY THE EMPLOYEE, THE PER DIEM ALLOWED IS THAT AMOUNT TO WHICH THE EMPLOYEE WOULD HAVE BEEN ENTITLED HAD THE EMPLOYEE AND SPOUSE TRAVELED TOGETHER.'

IN OUR DECISION B-163113, JUNE 27, 1968, WE RECOGNIZED THAT THE TRAVEL EXPENSE INVOLVED IN RETURNING YOU TO YOUR PLACE OF RESIDENCE IN THE UNITED STATES WAS, AT LEAST TO THAT POINT, INCIDENT TO SEPARATION AND WAS NOT IN CONNECTION WITH A TRANSFER BETWEEN OFFICIAL STATIONS. IN THAT REGARD 5 U.S.C. 5724 PROVIDES THAT AN EMPLOYEE UPON RETURN FROM AN OVERSEAS POST SHALL BE ALLOWED THE EXPENSES OF HIS TRAVEL AND TRANSPORTATION IN THE SAME MANNER AS PROVIDED FOR NEW APPOINTEES IN SECTION 5722. THE LATTER SECTION PROVIDES FOR PAYMENT OF TRAVEL EXPENSES OF AN EMPLOYEE UPON RETURN FROM HIS POST OF DUTY OUTSIDE THE UNITED STATES BUT ONLY TRANSPORTATION EXPENSES FOR HIS IMMEDIATE FAMILY. SEE SECTION 8.1A, BUREAU OF THE BUDGET CIRCULAR NO. A-56. A PER DIEM ALLOWANCE FOR AN EMPLOYEE'S DEPENDENTS IS PAYABLE ONLY IN CONNECTION WITH A TRANSFER BETWEEN OFFICIAL STATIONS. SEE 5 U.S.C. 5724A AND SECTION 2B, BUREAU OF THE BUDGET CIRCULAR NO. A-56.

WITH RESPECT TO THE APPLICABILITY OF THE REGULATIONS CONTAINED IN BUREAU OF THE BUDGET CIRCULAR NO. A-56, SECTION 1.1A PROVIDES AS FOLLOWS:

"1.1 APPLICABILITY.

"A. PERSONS COVERED. EXCEPT AS OTHERWISE PROVIDED IN THESE REGULATIONS, THE FOLLOWING PERSONS ARE COVERED:

"/2) CIVILIAN OFFICERS AND EMPLOYEES RETURNING TO PLACES OF RESIDENCE FOR LEAVE BETWEEN TOURS OF OVERSEAS DUTY OR UPON RETURN FROM OFFICIAL DUTY STATIONS OUTSIDE THE CONTINENTAL UNITED STATES TO BE SEPARATED.' THE FOREGOING PROVISION MAKES THE REGULATIONS APPLICABLE TO ALL CIVILIAN OFFICERS AND EMPLOYEES OF AN EXECUTIVE DEPARTMENT RETURNING TO THE UNITED STATES FOR SEPARATION AND "EMPLOYEE" IS DEFINED IN SECTIONS 1.2B AND C THEREOF AS THE EMPLOYEE OF AN EXECUTIVE DEPARTMENT.

AS A CIVIL SERVICE EMPLOYEE SERVING IN THE TRUST TERRITORY OF THE PACIFIC ISLANDS, SAIPAN, AN ESTABLISHMENT OPERATING UNDER THAT DEPARTMENT, UNDER A TRANSPORTATION AGREEMENT YOU ARE CONSIDERED TO HAVE BEEN AN EMPLOYEE OF THE DEPARTMENT OF THE INTERIOR. AS AN EMPLOYEE OF AN EXECUTIVE DEPARTMENT YOU WOULD BE GOVERNED BY THE PROVISIONS OF BUREAU OF THE BUDGET CIRCULAR NO. A-56. THE FACT THAT MIXED FUNDS, COMPRISED OF LOCAL REVENUES SUPPLEMENTED BY FEDERAL GRANTS, WERE USED TO PAY COMPENSATION AND TRAVEL EXPENSES DID NOT AFFECT YOUR STATUS AS A FEDERAL EMPLOYEE. SEE OUR DECISION OF SEPTEMBER 23, 1957, B-133696, COPY ENCLOSED.

IN VIEW OF THE FOREGOING OUR OPINION IS THAT THE PROVISIONS OF THE TRUST TERRITORY ADMINISTRATIVE DIRECTIVE 67-12, TO THE EXTENT OF ANY CONFLICT WITH REGULATIONS COVERING FEDERAL EMPLOYEES, WOULD NOT BE FOR APPLICATION TO FEDERAL EMPLOYEES WHO ARE SERVING WITH THE TRUST TERRITORIES UNDER TRANSPORTATION AGREEMENTS. ACCORDINGLY, ON THE PRESENT RECORD, OUR PRIOR DECISION DIRECTING THE COLLECTION OF THE OVERPAYMENT OF PER DIEM TO YOUR FAMILY IN THE AMOUNT OF $100.31 MUST BE AND IS SUSTAINED.