B-125293, SEP 13, 1974

B-125293, SEP 13, 1974

LOCALLY HIRED EMPLOYEE WHO MEETS THE REQUIREMENTS OF SUBPARAGRAPH (B) OF SECTION C4002.3 OF JTR VOLUME 2, IS ENTITLED TO PAYMENT OF TRANSPORTATION EXPENSES FOR RETURN TO STATESIDE RESIDENCE EVEN THOUGH TRANSPORTATION AGREEMENT WAS NOT NEGOTIATED AT TIME OF HIRE.

MRS. RUTH A. MEAKINS - ENTITLEMENT TO TRANSPORTATION AGREEMENT:

THIS REQUEST FOR A DECISION AS TO THE ELIGIBILITY OF MRS. RUTH A. MEAKINS TO A TRANSPORTATION AGREEMENT AS A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE NAVY WHOSE OFFICIAL STATION IS TAIPEI, TAIWAN, WAS SUBMITTED BY A MEMBER OF CONGRESS UNDER THE FOLLOWING SET OF FACTS, SUBMITTED BY THE EMPLOYEE.

MRS. MEAKINS STATES THAT SHE DEPARTED THE UNITED STATES ON NOVEMBER 30, 1969, AND ARRIVED IN TAIWAN ON DECEMBER 1, 1969. THE RECORD SHOWS THAT SHE WAS HIRED LOCALLY AS A SECRETARY-STENOGRAPHER ON FEBRUARY 2, 1970, AND WAS CONVERTED TO A CAREER TENURE STATUS ON FEBRUARY 2, 1973. DUE TO AN ADMINISTRATIVE OVERSIGHT THE NOTIFICATION OF PERSONNEL ACTION WAS NOT SIGNED UNTIL JANUARY 7, 1974. SHE HAS BEEN EMPLOYED CONTINOUSLY WITH THE DEPARTMENT OF THE NAVY IN TAIPEI AND HAS RECEIVED AN OUTSTANDING PERFORMANCE RATING IN 1970 AND WAS RECOMMENDED FOR AN OUTSTANDING PERFORMANCE STEP INCREASE IN 1971. DUE TO THE 5-YEAR OVERSEAS LIMITATION, HER OVERSEAS EMPLOYMENT WILL BE TERMINATED ON FEBRUARY 2, 1975. THERE IS NO ADEQUATE EXPLANATION IN THE RECORD WHY A TRANSPORTATION AGREEMENT WAS NOT NEGOTIATED AT THE TIME OF HER EMPLOYMENT AS REQUIRED BY JOINT TRAVEL REGULATIONS (JTR), SECTION C4002(1) AND (2). MRS. MEAKINS PLEADS IGNORANCE OF THE REGULATION WHILE THE PERSONNEL OFFICER OF HER AGENCY, WHEN CONFRONTED WITH THE REQUEST FOR TRANSPORTATION AGREEMENT RETROACTIVE TO FEBRUARY 2, 1970, STATED ON JUNE 19, 1973, THAT SHE DID NOT MEET THE REQUIREMENTS OF "QUALIFYING PRESENCE IN THE AREA" BECAUSE SHE CAME TO TAIWAN TO JOIN HER HUSBAND WHO WAS CONTEMPLATING ESTABLISHING HIS OWN BUSINESS IN TAIWAN AND WAS ASSOCIATED WITH A PRIVATE TRADING COMPANY IN TAIPEI.

VOLUME 2 OF THE JTR, APPLICABLE AT THE TIME OF MRS. MEAKINS' HIRE, PROVIDES IN PERTINENT PART AS FOLLOWS:

"C4001 AGREEMENT FOR TRANSPORTATION ENTITLEMENT

"1. GENERAL. AN AGREEMENT FOR TRANSPORTATION ENTITLEMENT IS AN UNDERSTANDING BETWEEN THE DEPARTMENT AND THE EMPLOYEES WHEREIN THE DEPARTMENT AGREES TO FURNISH TRANSPORTATION AND OTHER RELATED ALLOWANCES (SEE TABLE OF ELIGIBILITY IN APPENDIX F), IN CONSIDERATION FOR WHICH THE EMPLOYEE AGREES TO REMAIN IN THE SERVICE OF THE DEPARTMENT OF DEFENSE COMPONENT FOR A SPECIFIED PERIOD (SEE PAR. C4005) OR SUCH PART THEREOF AS HIS SERVICES MAY BE REQUIRED. THE COMPLETION OF THE PERIOD OF SERVICE SPECIFIED IN THE AGREEMENT ESTABLISHES TRANSPORTATION ELIGIBILITY AND DOES NOT, IN ITSELF, TERMINATE THE EMPLOYEE'S EMPLOYMENT. SUCH AN AGREEMENT MAY BE AN INITIAL AGREEMENT OR A RENEWAL AGREEMENT. *** THE EMPLOYEE CONCERNED WILL BE FURNISHED A SIGNED COPY OF THE AGREEMENT EMPLOYEE CONCERNED WILL BE FURNISHED A SIGNED COPY OF THE AGREEMENT (INITIAL OR RENEWAL) AND THE ORIGINAL WILL BE PLACED IN THE EMPLOYEE'S PERSONNEL FOLDER. AGREEMENT FORMS AND THEIR PREPARATION AND DISPOSITION WILL BE AS PRESCRIBED IN APPENDIX D, PART III.

"C4002 WITH WHOM AGREEMENTS ARE NEGOTIATED

"3. OVERSEAS LOCAL HIRES

"A. GENERAL. OVERSEAS LOCAL COMMANDERS IN FOREIGN AREAS WILL NEGOTIATE AN INITIAL AGREEMENT WITH A LOCALLY HIRED EMPLOYEE IF THE CONDITIONS IN SUBPAR. B ARE MET. LOCAL COMMANDERS IN NONFOREIGN AREAS WILL NEGOTIATE AN INITIAL AGREEMENT WITH A LOCALLY HIRED EMPLOYEE IF THE CONDITIONS IN SUBPAR. B. ARE MET AND PROVIDED THE POSITION IS ONE FOR WHICH QUALIFIED LOCAL APPLICANTS ARE NOT READILY AVAILABLE. TO AVOID MISUNDERSTANDING AT A LATER DATE, ELIGIBILITY FOR RETURN TRANSPORTATION WILL BE DETERMINED AT THE TIME OF APPOINTMENT AND RECORDED THROUGH THE EXECUTION OF AN AGREEMENT.

"B. CONDITIONS

"(1). BONA FIDE RESIDENCE IN THE UNITED STATES. TO BE ELIGIBLE TO NEGOTIATE AN AGREEMENT, THE EMPLOYEE MUST BE ABLE, AT THE TIME OF APPOINTMENT OR ASSIGNMENT, TO ESTABLISH TO THE SATISFACTION OF THE APPOINTING OFFICIAL, BONA FIDE PLACE OF ACTUAL RESIDENCE (SEE PAR. C4004) IN THE UNITED STATES BUT OUTSIDE THE GEOGRAPHICAL LOCALITY OF THE POST OF DUTY.

"(2) QUALIFYING PRESENCE IN THE AREA. FOR THE PURPOSE OF ESTABLISHING QUALIFYING PRESENCE IN THE AREA, AN EMPLOYEE SHALL BE CONSIDERED TO HAVE RESIDENCE IN THE UNITED STATES IF HIS STATUS IN THE AREA PRIOR TO EMPLOYMENT WAS THAT OF:

"2. A TRAVELER FOR BUSINESS OR VACATION PURPOSES, WHO HAS BEEN ABSENT FROM THE UNITED STATES FOR NOT MORE THAN 6 MONTHS ***."

MRS. MEAKINS STATES THAT HER STATESIDE RESIDENCE IS HUNTINGTON BEACH, CALIFORNIA, THAT HER HOUSEHOLD GOODS ARE IN STORAGE THERE WITH BEKINS VAN LINES, THAT SHE VOTES THERE AND THAT SHE INTENDS TO RESIDE THERE UPON HER RETURN TO THE UNITED STATES.

ALTHOUGH HER HUSBAND INTENDED TO ESTABLISH A BUSINESS IN TAIPEI, AFTER INVESTIGATING THE CONDITIONS UPON ARRIVAL, IT WAS DETERMINED THAT IT WAS NOT FEASIBLE. THEN MRS. MEAKINS AND HER HUSBAND DECIDED TO VISIT WITH FRIENDS IN TAIWAN, AND AFTER FURTHER TRAVEL, RETURN TO THE UNITED STATES. IT WAS WHILE THEY WERE ON A VACATION THAT MRS. MEAKINS OBTAINED EMPLOYMENT WITH THE DEPARTMENT OF THE NAVY.

UNDER THESE CIRCUMSTANCES WE CONCLUDE THAT THE LACK OF A NEGOTIATED TRANSPORTATION AGREEMENT OR A FINDING THAT SHE IS NOT ENTITLED TO ONE AT THE TIME OF HER HIRE WAS DUE TO AN ADMINISTRATIVE MISINTERPRETATION. FIND THAT THE EMPLOYEE WHO HAS PERFORMED HER SERVICE AND IS DUE TO BE TRANSFERRED OR SEPARATED AS A RESULT OF THE 5 YEAR OVERSEAS EMPLOYMENT LIMITATION IS ENTITLED TO HAVE HER TRAVEL EXPENSES FOR RETURN TO THE UNITED STATES PAID BY THE UNITED STATES GOVERNMENT.