B-207087 L/M, AUG 20, 1982, OFFICE OF GENERAL COUNSEL

B-207087 L/M, AUG 20, 1982, OFFICE OF GENERAL COUNSEL

DIGEST: THE SPOUSE OF AN EMPLOYEE STATIONED IN ANCHORAGE, ALASKA, WHOSE PERMANENT RESIDENCE IS IN LOS ANGELES, CALIFORNIA, SPENT ENTIRE PERIOD OF AUTHORIZED HOME LEAVE IN PUERTO VALLARTA, MEXICO. GAO ADVISES EMPLOYEE THAT HIS SPOUSE IS NOT ENTITLED TO HOME LEAVE BENEFITS PROVIDED UNDER 5 U.S.C. SEC. 5728(A) (1976) AND IMPLEMENTING PROVISIONS IN THE FEDERAL TRAVEL REGULATIONS FPMR 101-7, PARA. 2-15H (2)(C) (SEPTEMBER 1981) BECAUSE THE SPOUSE OF AN EMPLOYEE WHOSE ACTUAL RESIDENCE IS IN THE UNITED STATES MUST SPEND A SUBSTANTIAL AMOUNT OF TIME IN THE UNITED STATES IN ORDER TO BE ENTITLED TO THE ALLOWANCE AUTHORIZED.

JERRY WICKSTROM, BUREAU OF LAND MANAGEMENT:

THIS IS IN RESPONSE TO YOUR LETTER DATED APRIL 6, 1982, REQUESTING OUR OPINION AS TO WHETHER THE RESTRICTIONS ON HOME LEAVE TRAVEL IMPOSED BY THE FEDERAL TRAVEL REGULATIONS, FPMR 101-7, PARA. 2-1.5H(2)(C) (SEPTEMBER 1981) (FTR), APPLY TO AN EMPLOYEE'S SPOUSE. THE PERTINENT PROVISIONS IN FTR PARA. 2-1.5H(2)(C) PROVIDE THAT AN EMPLOYEE WHOSE ACTUAL RESIDENCE IS IN THE UNITED STATES MUST SPEND A SUBSTANTIAL AMOUNT OF TIME IN THE UNITED STATES IN ORDER TO BE ENTITLED TO THE ALLOWANCE AUTHORIZED.

IN VIEW OF THE STATUTES RELATING TO OUR DECISION-MAKING AUTHORITY, WE ARE UNABLE TO RENDER A FORMAL DECISION TO YOU AT THIS TIME. SEE 31 U.S.C. SECS. 74, 82D. HOWEVER, ON THE BASIS OF THE INFORMATION PROVIDED BY YOU, WE OFFER THE FOLLOWING COMMENTS ON YOUR QUESTION. WE HAVE ENCLOSED COPIES OF THE CITED DECISIONS, AND WE HOPE THAT THIS INFORMATION IS HELPFUL TO YOU.

YOUR LETTER INDICATES THAT YOU AND YOUR FAMILY WERE AUTHORIZED TO TRAVEL FROM ANCHORAGE, ALASKA, TO LOS ANGELES, CALIFORNIA, AND RETURN UNDER THE HOME LEAVE TRAVEL PROVISIONS OF 5 U.S.C. SEC. 5728(A) (1976). ALTHOUGH YOU AND YOUR CHILDREN WERE ABLE TO TAKE THE HOME LEAVE AS SCHEDULED, TRAVELING TO LOS ANGELES AND OTHER POINTS WITHIN THE UNITED STATES DURING THE PERIOD JULY 15 TO AUGUST 8, 1981, YOUR WIFE WAS UNABLE TO ACCOMPANY THE FAMILY. CONSEQUENTLY, SHE ELECTED TO DEFER HER AUTHORIZED TRAVEL UNTIL JANUARY 1982, AT WHICH TIME SHE TRAVELED TO PUERTO VALLARTA, MEXICO.

THE AGENCY HAS INFORMED YOU THAT THE TRAVEL EXPENSES INCURRED BY YOUR WIFE ARE NOT REIMBURSABLE SINCE SHE DID NOT SPEND A SUBSTANTIAL AMOUNT OF TIME IN THE UNITED STATES, AS IS REQUIRED BY FTR PARA. 2 1.5H(2)(C). YOU CONTEND THAT THE RESTRICTIONS SET FORTH IN FTR PARA. 2 1.5H(2)(C) APPLY ONLY TO THE EMPLOYEE, NOT TO THE EMPLOYEE'S SPOUSE. ON THIS BASIS, YOU MAINTAIN THAT YOUR 3-WEEK STAY IN THE UNITED STATES CONSTITUTES SUFFICIENT COMPLIANCE WITH THE REQUIREMENTS OF FTR PARA. 2 1.5H(2)(C) TO ENTITLE YOUR WIFE TO TRAVEL AND TRANSPORTATION EXPENSES.

THE AUTHORIZATION FOR GOVERNMENT PAYMENT OF HOME LEAVE EXPENSES IS FOUND AT 5 U.S.C. 5728(A). THE PURPOSE OF SECTION 5728(A) AND THE IMPLEMENTING PROVISIONS IN FTR PARA. 2-1.5H(2)(C) IS TO ALLOW OVERSEAS EMPLOYEES TO RETURN TO THEIR HOMELAND FOR THE TAKING OF LEAVE THEREIN. SEE 41 COMP.GEN. 146 (1961). ON THIS BASIS, TRAVEL AND TRANSPORTATION EXPENSES HAVE BEEN DENIED TO AN EMPLOYEE WHO SPENDS HIS ENTIRE PERIOD OF REEMPLOYMENT LEAVE AT PLACES OUTSIDE THE COUNTRY, TERRITORY, OR POSSESSION IN WHICH HIS RESIDENCE IS LOCATED. SEE 38 COMP.GEN. 631 (1959). BY THE SAME TOKEN, AN EMPLOYEE ON HOME LEAVE WHO MERELY STOPS OFF AT THE ACTUAL PLACE OF HIS RESIDENCE AND CONTINUES ON A TRAVEL TOUR OUTSIDE THE UNITED STATES DOES NOT QUALIFY FOR THE BENEFITS OF 5 U.S.C. SEC. 5728(A). COMP.GEN. 146 (1961); AND B-171174, DECEMBER 18, 1970. SEE ALSO 53 COMP.GEN. 468 (1974). ALTHOUGH THE FOREGOING RULES HAVE NOT BEEN EXTENDED EXPRESSLY TO CASES IN WHICH HOME LEAVE IS TAKEN BY A SPOUSE OR DEPENDENT, DECISIONS OF THIS OFFICE HAVE IMPLICITLY RECOGNIZED THAT AN EMPLOYEE'S SPOUSE MAY BE SUBJECT TO THE "SUBSTANTIAL AMOUNT OF TIME" REQUIREMENT SET FORTH IN FTR PARA. 2-1.5H(2)(C). SEE E.G. B-171174, DECEMBER 18, 1970.

IF, AFTER READING THIS INFORMATION, YOU WISH TO FILE A CLAIM WITH OUR OFFICE UNDER THE PROVISIONS OF 31 U.S.C. SEC. 71 (1976) AND 4 C.F.R. PART 31 (1982), YOU SHOULD SUBMIT IT THROUGH YOUR AGENCY TO CLAIMS GROUP, ACCOUNTING AND FINANCIAL MANAGEMENT DIVISION, U. S. GENERAL ACCOUNTING OFFICE, WASHINGTON, D. C. 20548.