B-172594, JUL 7, 1971, 51 COMP GEN 14

B-172594, JUL 7, 1971, 51 COMP GEN 14

TRAVEL EXPENSES - REEMPLOYMENT AFTER SEPARATION - LIABILITY FOR EXPENSES THE ENTITLEMENT TO TRAVEL AND TRANSPORTATION EXPENSES OF AN EMPLOYEE OF THE ARMY IN THE CANAL ZONE WHO SEPARATED IN A REDUCTION-IN-FORCE ACTION IS RETURNED TO HIS ACTUAL RESIDENCE IN THE UNITED STATES AND AFTER A 7-DAY BREAK IN SERVICE ACCEPTS A POSITION WITH ANOTHER DEPARTMENT OF DEFENSE COMPONENT LOCATED 419 MILES FROM HIS RESIDENCE IS BECAUSE OF THE BREAK IN SERVICE WITHIN THE PURVIEW OF 5 U.S.C. 5724AC) AND NOT 5 U.S.C. 5724(E). UNDER SECTION 5724(A)(C), GOVERNING THE REIMBURSEMENT OF EMPLOYEES WHO INVOLVED IN A REDUCTION-IN-FORCE OR THE TRANSFER OF A FUNCTION ARE EMPLOYED WITHIN 1 YEAR OF SEPARATION, THE ACQUIRING AGENCY BEARS THE EXPENSES OF THE EMPLOYEE'S TRAVEL BETWEEN THE OLD AND NEW STATIONS, LESS COSTS INCURRED BY THE LOSING AGENCY, WHICH IF IN EXCESS OF THE COST OF DIRECT TRAVEL BETWEEN THE STATIONS, NEED NOT BE RECOUPED BY THE LOSING AGENCY.

TO ROSCOE CLEVELAND, DEPARTMENT OF THE ARMY, JULY 7, 1971:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 6, 1971 (FILE REFERENCE IAGS -COMPT-F), REQUESTING A DECISION CONCERNING THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER SUBMITTED BY MR. GOODRICH R. SIMMONS, A SEPARATED EMPLOYEE, WHO WAS SUBSEQUENTLY HIRED BY ANOTHER DEPARTMENT OF DEFENSE COMPONENT AND REPRESENTS HIS CLAIM FOR TRAVEL COSTS FROM HIS RESIDENCE TO SUCH NEW DUTY STATION.

THE RECORD SHOWS THAT MR. SIMMONS WAS EMPLOYED BY YOUR ACTIVITY AT FORT CLAYTON, CANAL ZONE, BUT DUE TO A REDUCTION-IN-FORCE ACTION WAS RETURNED TO HIS PLACE OF ACTUAL RESIDENCE IN THE UNITED STATES AT SOLANA BEACH, CALIFORNIA, FOR SEPARATION. THE EFFECTIVE DATE OF HIS SEPARATION AFTER TRAVEL WAS PERFORMED WAS LISTED IN HIS TRAVEL ORDERS AS JUNE 16, 1970. APPEARS THAT ON JUNE 24, 1970 (AFTER A BREAK IN SERVICE OF 7 DAYS), MR. SIMMONS WAS OFFERED AND ACCEPTED A POSITION WITH ANOTHER DEPARTMENT OF DEFENSE COMPONENT AT FORT ORD, CALIFORNIA, A DISTANCE OF APPROXIMATELY 419 MILES NORTH OF SOLANA BEACH, AND HE HAS NOW SUBMITTED A VOUCHER FOR TRAVEL AND TRANSPORTATION OF HIS HOUSEHOLD GOODS FROM SOLANA BEACH TO FORT ORD.

THE QUESTION ASKED IS WHETHER THE CLAIMANT IS ENTITLED TO RECEIVE THE COMPUTED COSTS OF TRAVEL FROM HIS RESIDENCE IN SOLANA BEACH TO FORT ORD, CALIFORNIA, AND IF HE IS SO ENTITLED, IS YOUR ORGANIZATION, AS THE LOSING ACTIVITY, RESPONSIBLE FOR THAT PAYMENT. IN REGARD TO THE LATTER, THE FILE INDICATES THAT THIS IS A MATTER OF SOME CONCERN, SINCE THE ALLOWANCE OF SUCH EXPENSES COULD CONCEIVABLY REPRESENT A VERY LARGE UNBUDGETED AND UNBUDGETABLE EXPENSE WHICH MAY WELL HAVE A SIGNIFICANT FINANCIAL IMPACT ON IAGS AS THERE ARE OTHER EMPLOYEES SCHEDULED FOR SEPARATION WHO MAY BE SIMILARLY SITUATED.

SECTION 5724(E) OF TITLE 5, U.S.C. RELATING TO TRANSFERS FROM ONE OFFICIAL STATION TO ANOTHER, PROVIDES THAT:

WHEN AN EMPLOYEE TRANSFERS FROM ONE AGENCY TO ANOTHER, THE AGENCY TO WHICH HE TRANSFERS PAYS THE EXPENSES AUTHORIZED BY THIS SECTION. HOWEVER, UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT, IN A TRANSFER FROM ONE AGENCY TO ANOTHER BECAUSE OF A REDUCTION IN FORCE OR TRANSFER OF FUNCTION, EXPENSES AUTHORIZED BY THIS SECTION *** MAY BE PAID IN WHOLE OR IN PART BY THE AGENCY FROM WHICH THE EMPLOYEE TRANSFERS OR BY THE AGENCY TO WHICH HE TRANSFERS, AS MAY BE AGREED ON BY THE HEADS OF THE AGENCIES CONCERNED.

IMPLEMENTING REGULATIONS ARE CONTAINED IN PARAGRAPH C1053-2B(1) OF JOINT TRAVEL REGULATIONS, VOLUME II. SUBPARAGRAPH (B) THEREOF PERTAINING TO FUNDING FOR TRANSFERS BETWEEN DIFFERENT DEPARTMENTS AND AGENCIES PROVIDES IN PERTINENT PART THAT NECESSARY COSTS INCIDENT TO TRANSFERS OF EMPLOYEES BETWEEN DEPARTMENT OF DEFENSE ACTIVITIES LOCATED IN THE UNITED STATES, COMMONWEALTH OF PUERTO RICO, OR CANAL ZONE, CAUSED BY REDUCTIONS IN FORCE OR TRANSFER OF FUNCTION WILL BE BORNE BY THE LOSING ACTIVITY ISSUING THE NOTICE OF REDUCTION IN FORCE OR TRANSFER OF FUNCTION. SIMILAR PROVISIONS ARE CONTAINED IN PARAGRAPH C1053-2B(2)(B) WITH RESPECT TO TRANSFERS IN CONNECTION WITH A REDUCTION IN FORCE OR TRANSFER OF FUNCTION WITHIN THE SAME DEPARTMENT, THAT IS, THAT THE LOSING ACTIVITY SHALL BEAR THE NECESSARY MOVEMENT COSTS.

MR. SIMMONS' ENTITLEMENT TO TRAVEL EXPENSES TO HIS NEW DUTY STATION, HOWEVER, IS NOT DERIVED FROM 5 U.S.C. 5724(E) QUOTED ABOVE SINCE HE WAS NOT INVOLVED IN A TRANSFER WITHOUT A BREAK IN SERVICE AS CONTEMPLATED BY THAT SECTION. RATHER, THE AUTHORITY FOR PAYMENT OF MR. SIMMONS' TRAVEL FROM HIS PLACE OF RESIDENCE TO THE NEW DUTY STATION IS DERIVED FROM 5 U.S.C. 5724AC) WHICH PROVIDES:

(C) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, A FORMER EMPLOYEE SEPARATED BY REASON OF REDUCTION IN FORCE OR TRANSFER OF FUNCTION WHO WITHIN 1 YEAR AFTER THE SEPARATION IS REEMPLOYED BY A NONTEMPORARY APPOINTMENT AT A DIFFERENT GEOGRAPHICAL LOCATION FROM THAT WHERE THE SEPARATION OCCURRED MAY BE ALLOWED AND PAID THE EXPENSES AUTHORIZED BY SECTIONS 5724, 5725, 5726(B), AND 5727 OF THIS TITLE, AND MAY RECEIVE THE BENEFITS AUTHORIZED BY SUBSECTIONS (A) AND (B) OF THIS SECTION, IN THE SAME MANNER AS THOUGH HE HAD BEEN TRANSFERRED IN THE INTEREST OF THE GOVERNMENT WITHOUT A BREAK IN SERVICE TO THE LOCATION OF REEMPLOYMENT FROM THE LOCATION WHERE SEPARATED.

WHILE 5 U.S.C. 5724AC) RELATES TO ENTITLEMENT, IT IS SILENT WITH RESPECT TO THE FUNDING. ENCLOSED WITH YOUR SUBMISSION WAS A COPY OF A MEMORANDUM DATED JANUARY 28, 1971, OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE ADDRESSED TO THE INTER AMERICAN GEODETIC SURVEY LIAISON OFFICE CONCERNING THE QUESTIONS RAISED IN YOUR LETTER. THE COMMITTEE RECOGNIZED THAT NEITHER THE PERTINENT PROVISION OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56 NOR JTR, VOL. 2, COVER THE SPECIFIC SITUATION RELATING TO THE CASE OF MR. SIMMONS. THE OPINION WAS, HOWEVER, EXPRESSED THAT FUNDING SHOULD BE BORNE BY THE LOSING ACTIVITY. WE HAVE DISCUSSED THIS ON AN INFORMAL BASIS WITH A MEMBER OF THE STAFF OF THE COMMITTEE AND CONFIRMED THE VIEW AS EXPRESSED IN THE MEMORANDUM THAT THE JOINT TRAVEL REGULATIONS CONTAIN NO PROVISION EXPRESSLY COVERING FUNDING ARISING BY REASON OF 5 U.S.C. 5724AC).

IT IS OUR VIEW THAT WHERE, AS HERE, THERE HAS BEEN A SEPARATION, AND A SUBSEQUENT HIRING BY ANOTHER ACTIVITY, IT WOULD BE PROPER FOR THE LOSING AGENCY TO PAY THE EXPENSES INCURRED IN TRAVELING TO THE PLACE OF ACTUAL RESIDENCE OR SOME OTHER SELECTED POINT IN THE UNITED STATES BUT NOT TO EXCEED THE CONSTRUCTIVE COST OF TRAVEL TO THE PLACE OF ACTUAL RESIDENCE. AT THIS POINT THE EMPLOYEE IS SEPARATED AND MAY OR MAY NOT BE ENTITLED TO ADDITIONAL TRAVEL. IF SUBSEQUENT TO ARRIVING AT THE PLACE OF RESIDENCE AND AFTER REMOVAL FROM THE ROLLS THE FORMER EMPLOYEE IS HIRED BY AN AGENCY WITHIN 1 YEAR AFTER SEPARATION AND THEREBY WITHIN THE ENTITLEMENT OF 5 U.S.C. 5724AC), THE ACQUIRING AGENCY SHOULD, CONSISTENT WITH THE GENERAL AUTHORITY OF 5 U.S.C. 5724A, BEAR THE EXPENSES OF HIS TRAVEL FROM THE PLACE OF ACTUAL RESIDENCE OR OTHER SELECTED POINT TO THE DUTY STATION FOR THE NEW POSITION IN WHICH HE IS EMPLOYED. THE ALLOWABLE COST COULD NOT EXCEED THE COST OF DIRECT TRAVEL FROM THE OLD TO THE NEW DUTY STATION, LESS THE COST INCURRED BY THE LOSING AGENCY FOR RETURN TRAVEL AS INDICATED ABOVE. CF. 46 COMP. GEN. 628 (1967). HOWEVER, IN THE EVENT THE COSTS PAID BY THE LOSING AGENCY ARE IN EXCESS OF COSTS WHICH WOULD HAVE BEEN INCURRED FOR DIRECT TRAVEL FROM THE OLD DUTY STATION TO THE NEW DUTY STATION, NO RECOUPMENT OF MONIES ALREADY PAID IS NECESSARY. SEE 47 COMP. GEN. 763 (1968), AT PAGE 765.

THE VOUCHER IS RETURNED HEREWITH FOR HANDLING IN ACCORDANCE WITH THE ABOVE.