B-135262, APR. 16, 1958

B-135262, APR. 16, 1958

TO MR. JAKE LAPIN, UNITED STATES ARMY AUDIT AGENCY:

YOUR LETTER OF JANUARY 18, 1958, REQUESTS RECONSIDERATION OF OUR CERTIFICATE OF SETTLEMENT DATED NOVEMBER 25, 1957, WHICH DISALLOWED YOUR CLAIM FOR SALARY AND PER DIEM IN LIEU OF SUBSISTENCE DURING THE PERIOD OCTOBER 18 TO OCTOBER 13, 1951, INVOLVING TRAVEL FROM FRANCE TO DENVER, COLORADO, AND COST OF FIRST-CLASS RAIL TRANSPORTATION FROM NEW YORK, NEW YORK, TO DENVER.

THE RECORD SHOWS THAT YOU WERE RECRUITED IN AUGUST 1948 FOR A TWO YEAR TOUR OF DUTY WITH THE DEPARTMENT OF THE ARMY, HEIDELBERG MILITARY POST, APO 403. IN FEBRUARY 1949 YOU WERE SEPARATED FOR THE CONVENIENCE OF THE GOVERNMENT AND FURNISHED TRAVEL ORDERS AUTHORIZING RETURN TRANSPORTATION TO THE UNITED STATES AT THE EXPENSE OF THE GOVERNMENT. YOU NEVER UTILIZED THE TRAVEL AUTHORIZATION, BUT TOURED EUROPE UNTIL AUGUST 29, 1949. SINCE YOU DID NOT ACCEPT TRANSPORTATION AT GOVERNMENT EXPENSE AT THE TIME IT WAS OFFERED YOU FORFEITED YOUR RIGHT TO CLAIM THIS TRANSPORTATION AT GOVERNMENT EXPENSE AT A FUTURE DATE. ON AUGUST 29, 1949, WHILE IN EUROPE YOU ENTERED INTO A TWO-YEAR EMPLOYMENT AGREEMENT WITH THE DEPARTMENT OF THE ARMY IN GERMANY AND SUBSEQUENTLY WERE ASSIGNED TO THE COMMUNICATION ZONE, FRANCE. IN OCTOBER 1951, AFTER THE COMPLETION OF YOUR EMPLOYMENT AGREEMENT, BY TRAVEL AUTHORIZATION AG 300.4 (10-179) DATED OCTOBER 17, 1951, YOU WERE AUTHORIZED RETURN TRANSPORTATION BY WAY OF BREMERHAVEN, GERMANY, TO THE UNITED STATES FOR 45 DAYS ANNUAL LEAVE BY U.S. GOVERNMENT CONTROLLED SURFACE TRANSPORTATION ON A SPACE AVAILABLE NONREIMBURSABLE BASIS AT NO EXPENSE TO THE GOVERNMENT. FURTHERMORE, LAND TRAVEL AT GOVERNMENT EXPENSE WAS NOT AUTHORIZED WHILE TRAVELING. ANOTHER SET OF ORDERS ISSUED ON OCTOBER 17, 1951, AUTHORIZED YOUR RETURN TO THE EUROPEAN COMMAND AT GOVERNMENT EXPENSE FOR ANOTHER TOUR OF DUTY. YOU DEPARTED ORLEANS, FRANCE, OCTOBER 18, 1951, WITHOUT RECEIVING A FIRM PORT CALL AND WITHOUT REPORTING TO THE CIVILIAN PERSONNEL BRANCH FOR CLEARANCE AND PROCESSING OF SF-71 COVERING ANNUAL LEAVE STATUS. YOU SAILED FROM BREMERHAVEN, GERMANY, ON OCTOBER 25, 1951, LANDING IN NEW YORK NOVEMBER 9, 1951, AND PROCEEDED TO DENVER, COLORADO, ARRIVING THERE NOVEMBER 13, 1951. WHILE IN THE UNITED STATES ON LEAVE YOU RESIGNED AND THE RETURN TRAVEL ORDER WAS NOT UTILIZED. YOUR CLAIM WAS DISALLOWED ON THE BASIS OF AN ADMINISTRATIVE REPORT THAT REGULATIONS IN EFFECT AT THE TIME OF YOUR RETURN TO THE UNITED STATES PROVIDED THAT EMPLOYEES RECRUITED LOCALLY IN THE OVERSEAS COMMAND WERE NOT AUTHORIZED RETURN TRANSPORTATION TO THE UNITED STATES AT GOVERNMENT EXPENSE.

SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 808, AS AMENDED BY THE ACT OF SEPTEMBER 23, 1950, 64 STAT. 985, 5 U.S.C. 73B-3, PROVIDES THAT THE EXPENSES OF RETURN TRAVEL AND TRANSPORTATION UPON SEPARATION SHALL BE ALLOWED WHETHER SUCH SEPARATION IS FOR THE PURPOSE OF THE GOVERNMENT OR FOR PERSONAL CONVENIENCE; BUT THAT SUCH EXPENSES SHALL NOT BE ALLOWED UNLESS THE EMPLOYEE HAS SERVED OUTSIDE THE UNITED STATES FOR A MINIMUM PERIOD OF NOT LESS THAN ONE YEAR NOR MORE THAN THREE YEARS PRESCRIBED IN ADVANCE, OR UNLESS THE SEPARATION IS FOR REASONS BEYOND THE CONTROL OF THE INDIVIDUAL OR ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED. IN 30 COMP. GEN. 231, WE HELD THAT UNDER THE AMENDED STATUTE THE EXPENSES OF RETURN TRAVEL AND TRANSPORTATION OF AN EMPLOYEE HIRED OVERSEAS, UPON SEPARATION, GENERALLY, ARE REQUIRED TO BE PAID WHERE THE EMPLOYEE HAS SATISFIED THE REQUIREMENTS OF THE STATUTE AND REGULATIONS. IN COMPUTING THE PERIOD OF ONE YEAR REQUIRED UNDER THE STATUTE AS A PREREQUISITE FOR THE RETURN TO THE UNITED STATES AT GOVERNMENT EXPENSE OF AN EMPLOYEE WHO RESIGNS FOR PERSONAL REASONS, ONLY SERVICE SUBSEQUENT TO SEPTEMBER 23, 1950, SHALL BE INCLUDED. SEE 30 COMP. GEN. 251.

SINCE YOU HAD COMPLETED YOUR REQUIRED TOUR OF DUTY OVERSEAS, A MINIMUM OF AT LEAST ONE YEAR OF WHICH WAS SUBSEQUENT TO SEPTEMBER 23, 1950, AND THE RECORD SHOWS YOUR ACTUAL RESIDENCE WAS IN THE CONTINENTAL UNITED STATES, YOU ARE ENTITLED TO THE RETURN TRANSPORTATION BY RAIL, FIRST CLASS, FROM NEW YORK, NEW YORK, TO YOUR RESIDENCE IN THE UNITED STATES. REGARDING SALARY FOR TRAVEL TIME BY A DIRECT ROUTE, ANY TRAVEL TIME FALLING WITHIN YOUR REGULARLY SCHEDULED TOUR OF DUTY WILL BE CONSIDERED AS DUTY STATUS. UPON THE EVIDENCE OF RECORD, HOWEVER, SALARY PAYMENT IS NOT AUTHORIZED FOR ANY PERIOD PRIOR TO OCTOBER 25, DATE OF DEPARTURE FROM OVERSEAS. ALSO, SINCE THE RECORD MERELY SHOWS ARRIVAL AT NEW YORK ON NOVEMBER 9, DEPARTURE TIME FOR SALARY PURPOSES WILL BE COMPUTED ON BASIS OF FIRST SCHEDULED RAIL DEPARTURE FROM NEW YORK AFTER NOON OF THAT DAY. SUBJECT TO THOSE RESTRICTIONS, SALARY FOR TRAVEL TIME FROM THE OVERSEAS STATION TO YOUR RESIDENCE IS ALLOWABLE.

CONCERNING YOUR CLAIM FOR PER DIEM IN LIEU OF SUBSISTENCE DURING THE PERIOD OCTOBER 18 TO NOVEMBER 13, 1951, THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AS AMENDED OCTOBER 1, 1950, IN EFFECT AT THE TIME THE TRAVEL IN QUESTION WAS PERFORMED, PROVIDED FOR THE PAYMENT OF PER DIEM ONLY WHEN AUTHORIZED OR APPROVED BY THE OFFICIAL AUTHORIZED TO ISSUE TRAVEL ORDERS. SINCE THE GRANTING OF A PER DIEM ALLOWANCE IS AN ADMINISTRATIVE MATTER, AND NONE WAS AUTHORIZED OR APPROVED, AS REQUIRED UNDER THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, YOUR CLAIM FOR PER DIEM IN LIEU OF SUBSISTENCE IS DISALLOWED.

A SETTLEMENT WILL ISSUE IN DUE COURSE IN AN AMOUNT REPRESENTING SALARY FOR THE DIRECT TRAVEL TIME, PLUS COST OF FIRST-CLASS RAIL FARE FROM NEW YORK TO DENVER IF OTHERWISE CORRECT.