B-131587, JUL. 14, 1959

B-131587, JUL. 14, 1959

TO THE SECRETARY OF DEFENSE:

YOUR ASSISTANT SECRETARY'S LETTER OF MAY 26, 1959, REQUESTS OUR DECISION UPON SEVERAL QUESTIONS INVOLVING THE CONSTRUCTION OF SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, 5 U.S.C 73B 3.

THE REFERRED-TO ACT READS IN PART AS FOLLOWS:

"* * * AND PROVIDED FURTHER, THAT EXPENSES OF RETURN TRAVEL AND TRANSPORTATION UPON SEPARATION FROM THE SERVICE SHALL BE ALLOWED WHETHER SUCH SEPARATION IS FOR THE PURPOSE OF THE GOVERNMENT OR FOR PERSONAL CONVENIENCE, BUT SHALL NOT BE ALLOWED UNLESS SUCH PERSONS SELECTED FOR APPOINTMENT OUTSIDE THE CONTINENTAL UNITED STATES SHALL HAVE SERVED FOR A MINIMUM PERIOD OF NOT LESS THAN ONE NOR MORE THAN THREE YEARS PRESCRIBED IN ADVANCE BY THE HEAD OF THE DEPARTMENT OR AGENCY CONCERNED OR UNLESS SEPARATION IS FOR REASONS BEYOND THE CONTROL OF THE INDIVIDUAL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED: PROVIDED FURTHER, THAT EXPENSES OF ROUND TRIP TRAVEL OF EMPLOYEE AND TRANSPORTATION OF IMMEDIATE FAMILY BUT EXCLUDING HOUSEHOLD EFFECTS, FROM THEIR POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO THE PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT OR TRANSFER TO SUCH OVERSEAS POSTS OF DUTY, SHALL BE ALLOWED IN THE CASE OF PERSONS WHO HAVE SATISFACTORILY COMPLETED AN AGREED PERIOD OF SERVICE OVERSEAS AND ARE RETURNING TO THEIR ACTUAL PLACE OF RESIDENCE FOR THE PURPOSE OF TAKING LEAVE PRIOR TO SERVING ANOTHER TOUR OF DUTY AT THE SAME OR SOME OTHER OVERSEAS POST, UNDER A NEW WRITTEN AGREEMENT ENTERED INTO BEFORE DEPARTING FROM THE OVERSEAS POST: * * *.'

YOUR ASSISTANT SECRETARY'S LETTER IS IN PART AS FOLLOWS:

"* * * THE DEPARTMENT OF DEFENSE PROPOSES TO CONTINUE THE PRACTICE OF EMPLOYING TEACHERS FOR ITS OVERSEAS DEPENDENTS SCHOOLS UNDER ONE YEAR TRANSPORTATION AGREEMENTS. AT THE SAME TIME, THE DEPARTMENT WOULD LIKE TO PLACE REASONABLE LIMITATIONS UPON THE GRANTING OF RETURN TRANSPORTATION TO THESE TEACHERS, WHICH WOULD APPROXIMATE AS CLOSELY AS POSSIBLE THE PRACTICE OBSERVED WITH RESPECT TO OTHER CIVILIAN EMPLOYEES. THIS WOULD INVOLVE:

"/A) SEPARATION BY RESIGNATION AND FURNISHING RETURN TRANSPORTATION TO THOSE TEACHERS WHO, UPON SATISFACTORY COMPLETION OF SERVICE INVOLVING ONE SCHOOL YEAR, WISH TO RETURN TO THE UNITED STATES. IN SUCH CASES THE SEPARATION WOULD NORMALLY BE WITH THE STIPULATION THAT THE TEACHER WOULD NOT BE REHIRED FOR THE SUBSEQUENT SCHOOL YEAR EXCEPT IN AN OVERSEAS AREA WHERE THE NORMAL TOUR OF DUTY FOR CIVILIAN EMPLOYEE HAS BEEN ESTABLISHED AS ONE YEAR.

"/B) NOT PROVIDING RETURN TRANSPORTATION TO THOSE TEACHERS WHO, UPON SATISFACTORY COMPLETION OF SERVICE INVOLVING ONE SCHOOL YEAR, AGREE TO SERVE FOR THE SUBSEQUENT SCHOOL YEAR. THESE TEACHERS, UPON COMPLETION OF THE SECOND CONSECUTIVE SCHOOL YEAR, WOULD BE PROVIDED RETURN TRANSPORTATION TO THE UNITED STATES, OR, IN CASES WHERE THEY WERE WILLING TO SERVE FOR AN ADDITIONAL SCHOOL YEAR, THEY WOULD BE PROVIDED ROUND TRIP TRANSPORTATION UPON SIGNING A RENEWAL TRANSPORTATION AGREEMENT.

"/C) CONTINUATION OF THE CYCLE DESCRIBED IN (A) AND (B) FOR SUBSEQUENT OVERSEAS TOURS.

"THE FOLLOWING QUESTIONS ARE SUBMITTED FOR YOUR CONSIDERATION:

"1. WOULD YOUR OFFICE BE REQUIRED TO OBJECT TO THE PRACTICES OUTLINED ABOVE IF CLEARLY DESCRIBED IN THE TRANSPORTATION AGREEMENTS?

"2. IN OVERSEAS AREAS WHERE THE NORMAL TOUR OF DUTY FOR CIVILIAN EMPLOYEES AS SPECIFIED IN TRANSPORTATION AGREEMENTS IS ONE YEAR, COULD TEACHERS BE GRANTED ROUND TRIP TRANSPORTATION HOME AT GOVERNMENT EXPENSE ON COMPLETION OF THE SCHOOL YEAR (9 OR 10 MONTHS) WITHOUT REQUIRING THAT THEY BE SEPARATED AND THEN REHIRED FOR THE SUBSEQUENT YEAR?

"3. WHEN IT IS KNOWN THAT AN EMPLOYEE'S SERVICE WILL BE REQUIRED FOR A CONTINUOUS PERIOD OF LESS THAN ONE YEAR (AS IN THE CASE OF TEACHERS) BUT THAT SUCH SERVICES WILL BE REQUIRED AGAIN FOR SUBSEQUENT COMPARABLE PERIODS OF TIME, MAY TRANSPORTATION AGREEMENTS BE CONCLUDED FOR LESS THAN ONE YEAR AND THUS AVOID THE NECESSITY FOR SEPARATING AND REHIRING THE EMPLOYEE?

"THE RECRUITING CAMPAIGN FOR TEACHERS FOR THE OVERSEAS DEPENDENTS SCHOOLS FOR THE 1959-1960 SCHOOL YEAR IS NOW BEING ORGANIZED. AN EARLY DECISION ON THESE QUESTIONS WOULD BE APPRECIATED IN ORDER THAT ANY NECESSARY CHANGES IN TRANSPORTATION AGREEMENTS CAN BE MADE IN TIME TO BE APPLICABLE FOR THAT SCHOOL YEAR.'

UNDER SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT AN EMPLOYEE AND DEPENDENTS MAY BE RETURNED TO THE UNITED STATES AT GOVERNMENT EXPENSE ONLY IF HE SHALL HAVE COMPLETED A MINIMUM PERIOD OF SERVICE OUTSIDE THE CONTINENTAL UNITED STATES OF NOT LESS THAN ONE NOR MORE THAN THREE YEARS UNLESS HE IS BEING SEPARATED PRIOR TO THE COMPLETION OF SUCH PERIOD OF SERVICE FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED. THE PRACTICES DESCRIBED IN SUBPARAGRAPHS DESIGNATED (A), (B), AND (C) OF YOUR ASSISTANT SECRETARY'S LETTER, QUOTED ABOVE, APPEAR TO BE CONSISTENT WITH THE QUOTED PROVISIONS OF SECTION 7 AND WE SEE NO LEGAL BASIS FOR OBJECTING TO THE INCLUSION OF APPROPRIATE PROVISIONS IN TRANSPORTATION AGREEMENTS TO INSURE ADHERENCE TO SUCH PRACTICES. YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

THE "AGREED PERIOD SERVICE" WHICH MUST BE COMPLETED AS A CONDITION OF ELIGIBILITY FOR ROUND-TRIP TRAVEL AND TRANSPORTATION AT GOVERNMENT EXPENSES FOR THE PURPOSE OF TAKING LEAVE REFERS TO A MINIMUM PERIOD OF SERVICE OF NOT LESS THAN ONE OR MORE THAN THREE YEARS AGREED UPON IN ADVANCE. UNLESS SUCH AGREED MINIMUM PERIOD OF SERVICE OF AT LEAST ONE YEAR IS COMPLETED BY AN EMPLOYEE PRIOR TO HIS RETURN TO THE UNITED STATES FOR THE PURPOSE OF TAKING LEAVE, NEITHER HE NOR HIS DEPENDENTS WOULD BE ENTITLED TO TRAVEL OR TRANSPORTATION AT GOVERNMENT EXPENSE. ANY AGREEMENT PURPORTING TO SHORTEN THE ONE YEAR MINIMUM REQUIREMENT WOULD BE INEFFECTIVE TO ACCOMPLISH SUCH PURPOSE. WE HAVE NOTED NOTHING IN THE LANGUAGE OF S. 96, (DEFENSE DEPARTMENT OVERSEAS TEACHERS PAY AND PERSONNEL PRACTICES ACT) OR IN ITS LEGISLATIVE HISTORY THAT SUGGESTS ANY DIFFERENT CONCLUSION WOULD BE WARRANTED UNDER THAT LEGISLATION THAN THAT ARRIVED AT HEREIN. THEREFORE, THE REMAINING TWO QUESTIONS (QUESTIONS 2 AND 3) ALSO ARE ANSWERED IN THE NEGATIVE.