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B-131083, JUNE 25, 1958, 37 COMP. GEN. 848

B-131083 Jun 25, 1958
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COULD BE FILLED BY LOCALLY HIRED PERSONNEL AT THE TIME OF THE LEAVE IS CONTRARY TO 5 U.S.C. 73B-3 WHICH AUTHORIZES HOME LEAVE TRAVEL FOR OVERSEAS EMPLOYEES UPON COMPLETION OF AN AGREED PERIOD OF SERVICE AND PROVIDED A NEW OVERSEAS EMPLOYMENT AGREEMENT IS EXECUTED PRIOR TO DEPARTURE ON LEAVE. THE REPORT ON THE MAHER CASE STATES THAT: IT IS THE VIEW OF THE DEPARTMENT THAT PUBLIC LAW 737 SETS FORTH CERTAIN CONDITIONS THAT MUST BE MET IF AN EMPLOYEE IS TO BE ENTITLED TO REEMPLOYMENT LEAVE TRAVEL AT GOVERNMENT EXPENSE. THESE ARE (1) HE MUST HAVE BEEN SERVING UNDER AN EMPLOYMENT AGREEMENT. ONCE THESE CONDITIONS ARE MET THEN IT APPEARS CLEAR THAT THE ENTITLEMENT TO TRANSPORTATION IS MANDATORY AND NOT PERMISSIVE.

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B-131083, JUNE 25, 1958, 37 COMP. GEN. 848

CIVILIAN PERSONNEL - TRAVEL EXPENSES - HOME LEAVE - EMPLOYMENT AGREEMENT EXECUTION AN ADMINISTRATIVE POLICY WHICH WOULD DENY HOME LEAVE RIGHTS TO OVERSEAS EMPLOYEES BY RETAINING THE EMPLOYEES ON THE ROLLS AT THE OVERSEAS STATION, GRANTING THEM LEAVE BUT REFUSING PERMISSION FOR THE EXECUTION OF A NEW EMPLOYMENT AGREEMENT BECAUSE THE POSITION, IF VACANT, COULD BE FILLED BY LOCALLY HIRED PERSONNEL AT THE TIME OF THE LEAVE IS CONTRARY TO 5 U.S.C. 73B-3 WHICH AUTHORIZES HOME LEAVE TRAVEL FOR OVERSEAS EMPLOYEES UPON COMPLETION OF AN AGREED PERIOD OF SERVICE AND PROVIDED A NEW OVERSEAS EMPLOYMENT AGREEMENT IS EXECUTED PRIOR TO DEPARTURE ON LEAVE.

TO THE SECRETARY OF THE ARMY, JUNE 25, 1958:

ON APRIL 29, 1958, THE ASSISTANT SECRETARY OF THE ARMY REQUESTED OUR DECISION WHETHER THE COMMAND POLICY ON GRANTING REEMPLOYMENT LEAVE AS INTERPRETED BY THE DEPARTMENT OF THE ARMY IN THE REPORT ON THE MAHER CASE MEETS THE REQUIREMENTS OF THE ACT OF AUGUST 31, 1954, 68 STAT. 1008, 5. U.S.C. 73B-3, AND TITLE VI OF EXECUTIVE ORDER NO. 9805, AS AMENDED.

THE REPORT ON THE MAHER CASE STATES THAT:

IT IS THE VIEW OF THE DEPARTMENT THAT PUBLIC LAW 737 SETS FORTH CERTAIN CONDITIONS THAT MUST BE MET IF AN EMPLOYEE IS TO BE ENTITLED TO REEMPLOYMENT LEAVE TRAVEL AT GOVERNMENT EXPENSE. THESE ARE (1) HE MUST HAVE BEEN SERVING UNDER AN EMPLOYMENT AGREEMENT, (2) HE MUST BE GRANTED LEAVE FOR THE PURPOSE OF RETURNING TO HIS PLACE OF RESIDENCE, AND (3) A NEW EMPLOYMENT AGREEMENT MUST BE EXECUTED PRIOR TO TRAVEL. ONCE THESE CONDITIONS ARE MET THEN IT APPEARS CLEAR THAT THE ENTITLEMENT TO TRANSPORTATION IS MANDATORY AND NOT PERMISSIVE.

WHETHER THESE CONDITIONS ARE MET IN ANY INDIVIDUAL CASE DEPENDS BOTH UPON THE FACTS AND THE ACTIONS TAKEN BY ADMINISTRATIVE AUTHORITY. WITH RESPECT TO THE FIRST CONDITION, THERE ARE INSTANCES WHERE AN EMPLOYEE WHO WAS INITIALLY A PARTY TO AN EMPLOYMENT AGREEMENT, HAS CONTINUED IN THE SERVICE FOR SEVERAL YEARS FOLLOWING EXPIRATION OF HIS LAST AGREEMENT. WHETHER THIS RESULTS FROM AN ADMINISTRATIVE DETERMINATION THAT A FURTHER EMPLOYMENT AGREEMENT WAS NOT DESIRED BY THE DEPARTMENT OR IS AN INDICATION THAT THE EMPLOYEE HAS IN FACT ACCEPTED CONTINUED EMPLOYMENT AS A RESIDENT OF THE OVERSEAS AREA, RATHER THAN AS A RESIDENT OF THE CONTINENTAL UNITED STATES, IS DIFFICULT TO DETERMINE. ON THE SECOND CONDITION, IT IS OF COURSE RECOGNIZED THAT DETERMINATION AS TO WHEN AND IN WHAT AMOUNT LEAVE WILL BE GRANTED IS A MATTER FOR ADMINISTRATIVE ACTION. IN ACTUAL PRACTICE, ASIDE FROM SCHEDULING LEAVE TO COINCIDE WITH WORK LOADS, THE POLICIES OF THE DEPARTMENT PROVIDE THAT LEAVE WILL NOT BE WITHHELD. LIKEWISE, WITH RESPECT TO THE THIRD CONDITION, IT IS CONSIDERED THAT A DETERMINATION AS TO WHETHER A NEW TRANSPORTATION AGREEMENT IS TO BE EXECUTED IS A MATTER OF ADMINISTRATIVE DISCRETION. TO VIEW IT OTHERWISE WOULD PLACE EMPLOYEES IN THE POSITION OF BEING ABLE TO OBLIGATE THE DEPARTMENT WITHOUT ITS CONSENT.

THESE FACTORS DO NOT PRESENT ANY PARTICULAR PROBLEMS IN FOREIGN AREAS WHERE THERE IS NO LOCAL LABOR SUPPLY AND IT IS CLEAR IN ALL BUT A FEW INSTANCES THAT THE EMPLOYEE HAS EVERY INTENTION OF CONSIDERING THE CONTINENTAL UNITED STATES AS HIS HOME. LIKEWISE, WHILE PROBLEMS ARE MORE PREVALENT THEY ARE NOT PARTICULARLY SERIOUS IN ALASKA AND OTHER TERRITORIES AND POSSESSIONS WHERE LABOR IS IN SHORT SUPPLY OR WHERE FOR CLIMATIC OR COST OF LIVING REASONS, PEOPLE GENERALLY EITHER DO NOT PLAN TO REMAIN FOR EXTENDED PERIODS OR FIND IT DESIRABLE TO RETURN PERIODICALLY.

HAWAII, HOWEVER, BECAUSE OF ITS CLIMATE, GENERAL LIVING CONDITIONS AND LABOR SUPPLY PRESENTS AN ENTIRELY DIFFERENT PICTURE FROM OTHER AREAS. IS POSSIBLE TO RECRUIT LOCALLY ALL TYPES OF PERSONNEL OTHER THAN THOSE WHICH ARE GENERALLY IN SHORT SUPPLY THROUGHOUT THE UNITED STATES. WHERE RECRUITMENT CAN NOT BE CONDUCTED ON A LOCAL BASIS, AND IS CONDUCTED WITHIN CONTINENTAL UNITED STATES, THE PERSONS SO RECRUITED USUALLY BECOME SO THOROUGHLY IDENTIFIED WITH THE LOCAL ENVIRONMENT THAT IT IS DIFFICULT TO IDENTIFY THEM AS REALLY BEING RESIDENTS OF A PARTICULAR STATE. IN MANY RESPECTS, THIS SITUATION IS ANALOGOUS TO THE MOVEMENT OF AN EMPLOYEE WITHIN THE UNITED STATES.

IT WAS IN RECOGNITION OF THIS SITUATION THAT THE COMMAND ADOPTED, AND HAS FOLLOWED SINCE 1948, A POLICY WHICH, IN SUBSTANCE, PROVIDED THAT EMPLOYEES WOULD NOT BE RETURNED TO THE STATES FOR LEAVE PURPOSES IF A QUALIFIED REPLACEMENT WAS AVAILABLE LOCALLY. THIS WAS AN ATTEMPT TO EQUATE REEMPLOYMENT LEAVE TRAVEL WITH THE SITUATIONS UNDER WHICH STATESIDE RECRUITMENT WAS NECESSARY. IT ALSO RECOGNIZED THAT, IN MOST CASES, IT WAS IMPOSSIBLE TO DETERMINE WHETHER THE EMPLOYEE WAS IN FACT TEMPORARILY AWAY FROM A STATESIDE RESIDENCE OR HAD BECOME A RESIDENT OF HAWAII. IN VIEW OF THE CIRCUMSTANCES, THIS OFFICE CONSIDERS THE POLICY TO BE SOUND AND ONE WHICH SHOULD BE CONTINUED.

THE APPLICATION OF THE POLICY TO A SPECIFIC CASE IS CLARIFIED BY THE FOLLOWING EXCERPT FROM HEADQUARTERS, U.S. ARMY HAWAII/25TH INFANTRY DIVISION, IN THE CASE OF MARTIN R. ADDINGTON:

* * * THIS POINT WAS NOT A FACTOR IN THE COMMAND DISAPPROVAL OF MR. ADDINGTON'S REQUEST FOR REEMPLOYMENT LEAVE TRAVEL IN JULY 1955; THE SOLE FACTOR UPON WHICH THAT REQUEST WAS DISAPPROVED WAS THAT THE POSITION, IF VACANT, COULD HAVE BEEN FILLED LOCALLY, EITHER DIRECTLY OR INDIRECTLY, WITHOUT REQUIRING A REPLACEMENT RECRUITED FROM THE CONTINENTAL U.S. IT IS ALSO FOR NOTING THAT MR. ADDINGTON IS IN THE CONUS AT THE PRESENT TIME ON REEMPLOYMENT LEAVE, TRAVELING AT GOVERNMENT EXPENSE UNDER ORDERS ISSUED BY THIS COMMAND, FOR WHICH HE MADE APPLICATION IN SEPTEMBER 1957. HIS APPLICATION WAS EXAMINED UNDER THE SAME CRITERIA APPLIED TO HIS EARLIER REQUEST IN JULY 1955; THE LOCAL LABOR MARKET SITUATION HAS CHANGED IN THE INTERVENING YEARS TO THE EXTENT THAT MR. ADDINGTON'S POSITION, IF VACANT, WOULD REQUIRE RECRUITMENT FROM THE CONTINENTAL U.S., EITHER DIRECTLY OR INDIRECTLY. HIS MOST RECENT APPLICATION WAS, THEREFORE, APPROVED ON THE BASIS THAT A QUALIFIED LOCAL REPLACEMENT WAS NOT AVAILABLE.

THE AUTHORITY FOR THE PAYMENT OF THE ROUND-TRIP TRAVEL OF EMPLOYEES AND THEIR IMMEDIATE FAMILIES FROM POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO THE PLACE OF ACTUAL RESIDENCE IN THE UNITED STATES FOR THE PURPOSE OF TAKING HOME LEAVE IS CONTAINED IN PUBLIC LAW 737, APPROVED AUGUST 31, 1954, 68 STAT. 1008, 5 U.S.C. 73B-3. THAT ACT PROVIDES, IN PERTINENT PART, AS FOLLOWS:

* * * PROVIDED FURTHER, THAT EXPENSES OF ROUND TRIP TRAVEL OF EMPLOYEES 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 * * *

ALSO, THE PERTINENT PROVISIONS OF THE REGULATIONS ISSUED BY THE BUREAU OF THE BUDGET ON MAY 2, 1955, EFFECTIVE AUGUST 31, 1954, IMPLEMENTING THE LAW, PROVIDE THAT---

(A) ELIGIBILITY. TO BE ELIGIBLE FOR TRAVEL AND TRANSPORTATION EXPENSES AS AUTHORIZED IN (B) BELOW, AN EMPLOYEE PRIOR TO DEPARTURE FROM HIS POST OUTSIDE THE CONTINENTAL UNITED STATES--- (1) MUST HAVE SATISFACTORILY COMPLETED AN AGREED-UPON PERIOD OF SERVICE * * * AND (2) MUST HAVE ENTERED INTO A NEW WRITTEN AGREEMENT FOR ANOTHER PERIOD OF SERVICE AT THE SAME OR SOME OTHER POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES. THE PERIOD OF SERVICE UNDER SUCH NEW AGREEMENT SHALL BEGIN UPON THE DATE OF HIS RETURN TO OR ARRIVAL AT SUCH POST OF DUTY AFTER LEAVE HAS BEEN TAKEN.

THE LENGTH OF TIME AN EMPLOYEE HAS SPENT OVERSEAS AT HIS POST OF DUTY WOULD NOT, IN ITSELF, BE A DETERMINATION OF THE ACTUAL RESIDENCE OF THE EMPLOYEE. THE STATUTE PROVIDES FOR THE RETURN OF EMPLOYEES FROM THEIR POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO THE PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT OR TRANSFER. THE PHRASE "PLACE OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT OR TRANSFER" IS NOT DEFINED IN PUBLIC LAW 737 AND NEITHER IS IT DEFINED IN THE REGULATIONS OF THE BUREAU OF THE BUDGET IMPLEMENTING THAT LAW. THE PLACE CONSTITUTING THE "ACTUAL RESIDENCE" MUST BE DETERMINED UPON THE FACTS AND CIRCUMSTANCES IN EACH INDIVIDUAL CASE. THE RESPONSIBILITY OF THAT DETERMINATION PRIMARILY IS AN ADMINISTRATIVE ONE, BUT IN DOUBTFUL CASES WE WILL MAKE SUCH DETERMINATION PROVIDED THE COMPLETE FACTS ARE BEFORE US. SEE 35 COMP. GEN. 101.

REGARDING THE MATTER OF GRANTING LEAVE OUR OFFICE HAS CONSISTENTLY HELD THAT THE DETERMINATION AS TO WHEN AND IN WHAT AMOUNT LEAVE WILL BE GRANTED IS A MATTER FOR ADMINISTRATIVE DETERMINATION.

THE PURPOSE OF PUBLIC LAW 737 IS TO PERMIT CIVILIAN GOVERNMENT EMPLOYEES WHO HAVE SATISFACTORILY COMPLETED AN AGREED PERIOD OF SERVICE OVERSEAS, AND THEIR IMMEDIATE FAMILY, EXCLUDING HOUSEHOLD EFFECTS, TO RETURN TO THEIR RESIDENCE IN THE UNITED STATES, INCLUDING ITS TERRITORIES AND POSSESSIONS, PRIOR TO THEIR SERVING ANOTHER TOUR OF DUTY AT THE SAME OR SOME OTHER POST, AT GOVERNMENT EXPENSE FOR THE PURPOSE OF TAKING LEAVE. THE LEGISLATIVE HISTORY OF THE ACT CLEARLY SHOWS THAT AN EMPLOYEE HIRED IN THE UNITED STATES FOR DUTY IN ITS TERRITORIES AND POSSESSIONS IS ENTITLED TO THE HOME LEAVE TRAVEL BENEFITS TO THE SAME EXTENT AS EMPLOYEES HIRED FOR DUTY IN OTHER AREAS OUTSIDE THE UNITED STATES. TESTIMONY WAS GIVEN THAT ONE OF THE UNDESIRABLE CONDITIONS EXISTING BY THE ABSENCE OF A STATUTORY PROVISION AUTHORIZING THE RETURN OF EMPLOYEES TO THE UNITED STATES FROM HAWAII FOR LEAVE WITHOUT SEPARATION WAS THE UNCERTAINTY OF REHIRE BECAUSE OF A LOCAL APPLICANT BEING AVAILABLE AT TIME OF THE RETURN. SEE PAGE 9 OF THE HEARINGS, HOUSE OF REPRESENTATIVES, ON H.R. 179, 83RD CONGRESS. THE LOCAL COMMAND POLICY HERE UNDER CONSIDERATION WOULD SEEM TO PERPETUATE RATHER THAN TO ALLEVIATE THE CONDITION COMPLAINED OF.

IN VIEW OF THE PROVISIONS OF PUBLIC LAW 737, AND ITS LEGISLATIVE HISTORY REGARDING HOME LEAVE, WE CONCLUDE THAT THE COMMAND POLICY WHICH PURPORTS TO DENY OTHERWISE PROPER RIGHTS, AS TO HOME LEAVE, BY RETAINING THE EMPLOYEE ON ITS ROLLS AT AN OVERSEAS INSTALLATION, GRANTING HIM LEAVE, AND REFUSING TO LET HIM ENTER INTO ANOTHER EMPLOYMENT AGREEMENT SOLELY BECAUSE THE POSITION, IF VACANT, COULD HAVE BEEN FILLED LOCALLY AT TIME OF THE LEAVE MAY NOT BE GIVEN EFFECT SO AS TO DEFEAT THE RIGHT TO HOME LEAVE. HOLD OTHERWISE WOULD BE, WE BELIEVE, TANTAMOUNT TO AUTHORIZING A CIRCUMVENTION OF THE STATUTE.

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