B-181475, FEB 19, 1975

B-181475, FEB 19, 1975

1. RETIRING USIA (LAOS) EMPLOYEE WHO DESIGNATED FLORIDA AS SERVICE SEPARATION RESIDENCE, REQUESTING THAT ONLY 400 OF 2,600 POUNDS OF EFFECTS BE SHIPPED THERE, REMAINDER, ON CONSTRUCTIVE COST BASIS, TO SPAIN, AND WHO TRAVELED TO FLORIDA WITHIN LIMITATION PERIOD, IS ENTITLED TO TRAVEL EXPENSES FROM LAOS TO FLORIDA TOGETHER WITH PAYMENT FOR REQUESTED SHIPMENTS, NOTWITHSTANDING AGENCY POLICY THAT EMPLOYEE IS ONLY ENTITLED TO TRAVEL TO PLACE WHERE BULK OF EFFECTS ARE SHIPPED UPON SEPARATION, SINCE UNDER 6 FAM 125.9 SEPARATED EMPLOYEE HAS VESTED RIGHT TO RETURN TRAVEL TO DESIGNATED U.S. RESIDENCE. 2. RETIRING USIA EMPLOYEE, STATIONED IN LAOS, WHO UPON SEPARATION TRAVELED TO DESIGNATED SEPARATION RESIDENCE IN FLORIDA, IS ENTITLED TO PAYMENT UNDER 6 FAM 125.9 FOR ACTUAL COST OF SHIPMENT OF 400 POUNDS OF PERSONAL EFFECTS FROM LAOS TO FLORIDA AND UNDER 6 FAM 163 TO PAYMENT ON CONSTRUCTIVE COST BASIS FOR SHIPMENT OF 2,200 POUNDS OF HOUSEHOLD EFFECTS FROM LAOS TO SPAIN.

JUNE PURCILLY - SHIPMENT OF HOUSEHOLD EFFECTS FROM OVERSEAS STATION:

THIS ACTION IS A REQUEST FROM THE ASSISTANT DIRECTOR, PERSONNEL AND TRAINING, UNITED STATES INFORMATION AGENCY (USIA), FOR AN ADVANCE DECISION ON THE EXTENT OF USIA'S AUTHORITY UNDER SECTION 911(3) OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, AND ITS IMPLEMENTING REGULATIONS TO SHIP HOUSEHOLD EFFECTS OF A RETIRING EMPLOYEE TO MORE THAN ONE POINT OF FINAL RESIDENCE.

WHILE FORMAL COMPTROLLER GENERAL DECISIONS ARE GENERALLY RENDERED (WITH SOME EXCEPTIONS NOT RELEVANT HERE) ONLY TO HEADS OF DEPARTMENTS AND AGENCIES, DISBURSING AND CERTIFYING OFFICERS AND TO CLAIMANTS WHO HAVE FILED MONETARY CLAIMS WITH OUR OFFICE, SINCE THE MATTER IS OF AN URGENT AND POSSIBLY RECURRING NATURE, WE ARE RENDERING A DECISION AS IF IT HAD BEEN SUBMITTED BY THE HEAD OF THE USIA.

MISS JUNE PURCILLY, A RETIRED EMPLOYEE OF THE USIA, SEEKS REIMBURSEMENT FOR HER TRAVEL EXPENSES FROM VIENTIANE, LAOS, TO NAPLES, FLORIDA, AS WELL AS PAYMENT, ON A CONSTRUCTIVE COST BASIS, FOR THE SHIPMENT OF 2,200 POUNDS OF HOUSEHOLD EFFECTS FROM VIENTIANE TO SPAIN AND PAYMENT FOR SHIPMENT OF 400 POUNDS OF PERSONAL EFFECTS FROM VIENTIANE TO NAPLES, FLORIDA.

MISS PURCILLY RETIRED FROM THE USIA FOREIGN SERVICE EFFECTIVE MARCH 31, 1974. IN ACCORDANCE WITH AGENCY PROCEDURES, SHE DESIGNATED NAPLES, FLORIDA AS HER "RESIDENCE FOR SERVICE SEPARATION." HER TRAVEL AUTHORIZATION ISSUED ON MARCH 12, 1974, STATES THAT "TRAVEL WILL BE ALLOWED ONLY TO THE POINT TO WHICH HOUSEHOLD EFFECTS ARE SHIPPED." USIA HAS EXPLAINED THAT:

"IN KEEPING WITH AGENCY IMPLEMENTATIONS OF SECTION 911(3) OF THE (FOREIGN SERVICE) ACT (OF 1946) AND 6 FAM 125.9, MISS PURCILLY WAS INFORMED THAT SINCE SHE HAD REQUESTED THAT ALL OF HER HOUSEHOLD EFFECTS BE SHIPPED TO SPAIN, THE AGENCY WOULD CONSIDER SPAIN TO BE THE PLACE OF HER FINAL RESIDENCE UPON SEPARATION AND, ALTHOUGH SHE HAD PREVIOUSLY DESIGNATED NAPLES, FLORIDA AS HER RESIDENCE FOR SERVICE SEPARATION, HER TRAVEL AND SHIPMENT OF EFFECTS WOULD BE LIMITED TO SPAIN."

SECTION 911(3) OF THE FOREIGN SERVICE ACT PROVIDES FOR PAYMENT OF "THE COST OF TRANSPORTING FURNITURE AND HOUSEHOLD AND PERSONAL EFFECTS OF AN OFFICER OR EMPLOYEE OF THE SERVICE TO HIS SUCCESSIVE POSTS OF DUTY AND, ON THE TERMINATION OF SERVICES, TO THE PLACE WHERE HE WILL RESIDE."

THE IMPLEMENTING REGULATION, 6 FAM 125.9, STATES IN EFFECT THAT WHEN TRAVEL IS PERFORMED BECAUSE OF MILITARY FURLOUGH, RESIGNATION, RETIREMENT, AND OTHER SEPARATIONS, TRAVEL AND TRANSPORTATION MAY BE AUTHORIZED FROM THE POST OR ANY PLACE WHERE PRESENCE IS DUE TO GOVERNMENT ORDERS TO A DESIGNATED PLACE OF RESIDENCE AT THE TIME OF APPOINTMENT. HOWEVER, 6 FAM 125.9 HAS A SPECIAL PROVISION WHICH READS AS FOLLOWS: "WHEN AN AMERICAN EMPLOYEE ELECTS TO RESIDE AT OTHER THAN THE DESIGNATED PLACE OF RESIDENCE, EXPENSES SHALL BE ALLOWED BASED ON CONSTRUCTIVE COST (SECTIONS 117G, 131.3 AND 163) TO DESIGNATED PLACE OF RESIDENCE IN THE UNITED STATES, ITS POSSESSIONS, OR THE COMMONWEALTH OF PUERTO RICO." WE HAVE BEEN ADVISED THAT IT IS AGENCY POLICY TO DEFINE RESIDENCE AS THE PLACE WHERE AN EMPLOYEE'S OR FORMER EMPLOYEE'S HOUSEHOLD EFFECTS ARE SHIPPED AT GOVERNMENT EXPENSE. THIS HAS RESULTED IN THE AGENCY IGNORING MISS PURCILLY'S DESIGNATED RESIDENCE, NAPLES, FLORIDA, AND INSTEAD ASSERTING THAT HER ENTITLEMENT TO THE COST OF BOTH TRAVEL AND SHIPMENT OF HER HOUSEHOLD EFFECTS WOULD BE LIMITED TO THE COST OF TRAVEL AND SHIPMENT FROM VIENTIANE TO SPAIN.

THE SECRETARY OF STATE IN 1972 REQUESTED OUR OPINION ON A PROPOSAL TO REVISE 6 FAM 125.9 TO PERMIT SEPARATING PERSONNEL TO TRAVEL AND SHIP EFFECTS AT GOVERNMENT EXPENSE "FROM POST OR ANY PLACE WHERE PRESENCE IS DUE TO GOVERNMENT ORDERS TO THE PLACE WHERE HE WILL RESIDE" WITHOUT REGARD TO THE CONSTRUCTIVE COST OF SUCH TRAVEL OR SHIPMENT TO THE EMPLOYEE'S PRESELECTED SEPARATION HOME IN THE UNITED STATES OR ITS POSSESSIONS. DECISION OF OUR OFFICE, B-175989, OF AUGUST 24, 1972 (COPY ENCLOSED), WE ADVISED THE SECRETARY OF STATE THAT FOR OVER 25 YEARS THE REGULATIONS OF THE DEPARTMENT OF STATE HAVE CONTAINED PROVISIONS SIMILAR TO THOSE NOW CONTAINED IN 6 FAM 125.9 WHICH RESTRICTED REIMBURSEMENT OF TRAVEL AND TRANSPORTATION EXPENSES OF SEPARATION OF AN EMPLOYEE TO THOSE THAT WOULD HAVE BEEN INCURRED IN RETURNING TO A SELECTED PLACE OF RESIDENCE IN THE UNITED STATES OR ITS POSSESSIONS, AND THE PROPOSED CHANGE IN REGULATION IS UNAUTHORIZED. IN OTHER WORDS, THE ONLY PROPER BASE FOR THE COMPUTATION OF SUCH COSTS IS THE RESIDENCE DESIGNATED BY THE EMPLOYEE AS HIS OR HER SEPARATION HOME. THERE IS NO AUTHORITY TO CHANGE THAT RESIDENCE, WITHOUT CONSENT OF THE EMPLOYEE, MERELY BECAUSE THE EMPLOYEE CHOOSES TO SHIP THE BULK OF HIS OR HER HOUSEHOLD GOODS ELSEWHERE ALTHOUGH, OF COURSE, THE EMPLOYEE'S REIMBURSEMENT IS LIMITED TO THE COSTS THAT WOULD HAVE BEEN INCURRED IF THE TRAVEL OR THE SHIPMENT HAD BEEN MADE DIRECTLY TO THE DESIGNATED SEPARATION HOME. THE USIA POLICY OF DEFINING RESIDENCE AS THE PLACE WHERE AN EMPLOYEE'S HOUSEHOLD EFFECTS ARE SHIPPED, ACHIEVED A RESULT WHICH HAS NO FOUNDATION IN THE GOVERNING LAW OR THE IMPLEMENTING REGULATIONS. CONSEQUENTLY, WE SUGGEST THAT THE USIA REEVALUATE ITS DIRECTIVES ON THIS SUBJECT TO BRING ITS POLICIES INTO CONFORMANCE WITH THE LAW.

IT IS OUR VIEW THAT UNDER THE PROVISIONS OF 6 FAM 125.9 A SEPARATED EMPLOYEE HAS A VESTED RIGHT TO RETURN TRAVEL FROM HIS OVERSEAS POST TO HIS OR HER DESIGNATED PLACE OF RESIDENCE IN THE UNITED STATES UNLESS HE REQUESTS TRAVEL AT GOVERNMENT EXPENSE TO AN ALTERNATE LOCATION. THE TRAVEL AND TRANSPORTATION EXPENSES TO SUCH ALTERNATE LOCATION WILL BE ALLOWED IN AN AMOUNT WHICH DOES NOT EXCEED THE CONSTRUCTIVE COST OF TRAVEL AND TRANSPORTATION TO THE EMPLOYEE'S SELECTED PLACE OF RESIDENCE IN THE UNITED STATES. IN THE PRESENT CASE, MISS PURCILLY, UPON RETIREMENT, EXERCISED HER RIGHT TO TRAVEL TO HER DESIGNATED PLACE OF RESIDENCE IN THE UNITED STATES (NAPLES, FLORIDA) AND PERFORMED SUCH TRAVEL WITHIN THE TIME LIMITATION PERIOD SPECIFIED UNDER 6 FAM 132.2 2. IN ACCORDANCE WITH THE PROVISIONS OF 6 FAM 125.9 SHE IS ENTITLED TO BE REIMBURSED FOR SUCH TRAVEL.

WITH REGARD TO THE SHIPMENT OF MISS PURCILLY'S HOUSEHOLD AND PERSONAL EFFECTS, 6 FAM 125.9 ALSO PROVIDES, IN PERTINENT PART, FOR TRANSPORTATION OF AN EMPLOYEE'S EFFECTS "FROM POST OR ANY PLACE WHERE PRESENCE IS DUE TO GOVERNMENT ORDERS TO DESIGNATED PLACE OF RESIDENCE IN THE UNITED STATES ***." FURTHERMORE, 6 FAM 163 ALLOWS FOR SHIPMENT OF AN EMPLOYEE'S EFFECTS BETWEEN POINTS OTHER THAN THOSE AUTHORIZED, ON A CONSTRUCTIVE COST BASIS NOT IN EXCESS OF ACTUAL COST. CONSEQUENTLY, MISS PURCILLY IS ENTITLED TO SHIPMENT OF HER PERSONAL AND HOUSEHOLD EFFECTS FROM VIENTIANE, LAOS TO HER DESIGNATED RESIDENCE FOR SERVICE SEPARATION. HOWEVER, SINCE SHE WOULD PREFER THAT 2,200 POUNDS OF HER HOUSEHOLD EFFECTS BE SHIPPED TO SPAIN, RATHER THAN TO NAPLES, FLORIDA, PAYMENT FOR SUCH SHIPMENT MAY BE AUTHORIZED ON A CONSTRUCTIVE COST BASIS PROVIDED THAT THE SHIPMENT IS IN CONFORMANCE WITH ALL OTHER APPLICABLE REGULATIONS.