B-160565, JANUARY 24, 1967, 46 COMP. GEN. 628

B-160565, JANUARY 24, 1967, 46 COMP. GEN. 628

TRAVEL EXPENSES - OVERSEAS EMPLOYEES - TRANSFERS - AGENCY WITHIN THE UNITED STATES WHEN AN EMPLOYEE UPON SATISFACTORILY COMPLETING A TOUR OF DUTY OVERSEAS AND PRIOR TO HIS RETURN TO THE UNITED STATES TRANSFERS BETWEEN DIFFERENT DEPARTMENTS OR AGENCIES UNDER THE DEPARTMENT OF DEFENSE FOR EMPLOYMENT IN THE UNITED STATES, THE DEPARTMENT OR AGENCY IN THE DEFENSE DEPARTMENT FROM WHICH THE EMPLOYEE TRANSFERS IS PRECLUDED UNDER 5 U.S.C. 5724 (E) FROM PAYING ANY PART OF THE RETURN TRAVEL OR TRANSPORTATION EXPENSE OF THE EMPLOYEE, WHETHER THE EMPLOYEE QUALIFIES UNDER 5 U.S.C. 5722 (A) OR 5 U.S.C. 5724 (D) FOR THE RETURN EXPENSES. TRAVEL EXPENSES - OVERSEAS EMPLOYEES - RETURN FOR OTHER THAN LEAVE - SEPARATION - PRIOR TO TRANSFER WHEN AN EMPLOYEE OF A DEPARTMENT OR AGENCY UNDER THE DEPARTMENT OF DEFENSE UPON SATISFACTORILY COMPLETING AN OVERSEAS TOUR OF DUTY RETURNS TO THE UNITED STATES FOR SEPARATION AND TRANSFER TO ANOTHER DEPARTMENT OR AGENCY IN THE DEFENSE DEPARTMENT, THE ACTIVITY LOSING THE SERVICES OF THE EMPLOYEE IS LIABLE FOR THE EXPENSES INCURRED BY THE EMPLOYEE IN TRAVEL TO THE PLACE OF ACTUAL RESIDENCE OR SOME OTHER SELECTED POINT IN THE UNITED STATES NOT TO EXCEED THE CONSTRUCTIVE COST OF TRAVEL TO THE PLACE OF ACTUAL RESIDENCE. TRAVEL EXPENSES - OVERSEAS EMPLOYEES - RETURN FOR OTHER THAN LEAVE - TRANSFERS - PAYMENT BASIS THE ACTIVITY ACQUIRING THE SERVICES OF AN EMPLOYEE WHO UPON RETURN TO THE UNITED STATES AFTER SATISFACTORILY COMPLETING AN OVERSEAS TOUR OF DUTY TRANSFERS BETWEEN DIFFERENT DEPARTMENTS OR AGENCIES UNDER THE DEPARTMENT OF DEFENSE WITHOUT A BREAK IN SERVICE IS LIABLE FOR THE TRAVEL EXPENSES OF THE EMPLOYEE FROM THE PLACE OF ACTUAL RESIDENCE OR OTHER SELECTED POINT TO THE NEW DUTY STATION, THE ALLOWABLE COST NOT TO 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. HOWEVER, IN THE EVENT OF A BREAK IN SERVICE BETWEEN THE SEPARATION FROM THE LOSING AGENCY AND THE TRANSFER TO THE ACQUIRING AGENCY, NEITHER AGENCY MAY PAY THE EMPLOYEE'S EXPENSES FROM THE ACTUAL PLACE OF RESIDENCE TO THE DUTY STATION UNDER THE NEW AGENCY, UNLESS THE EMPLOYEE QUALIFIES FOR ENTITLEMENT UNDER SOME SPECIAL AUTHORITY, SUCH AS IS CONTAINED IN 5 U.S.C. 5723 AUTHORIZING THE PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES WHEN A MANPOWER SHORTAGE EXISTS.

TO THE SECRETARY OF DEFENSE, JANUARY 24, 1967:

BY LETTER OF DECEMBER 14, 1966, YOUR ASSISTANT SECRETARY (COMPTROLLER) REQUESTED OUR DECISION CONCERNING THE QUESTION AS TO WHICH AGENCY'S APPROPRIATION IS TO BE CHARGED WITH THE EXPENSES OF TRAVEL AND TRANSPORTATION OF AN EMPLOYEE WHO RETURNS TO THE UNITED STATES, FOLLOWING COMPLETION OF AN AGREED OVERSEAS TOUR OF DUTY WITH ONE DEPARTMENT OR AGENCY UNDER THE DEPARTMENT OF DEFENSE, FOR TRANSFER TO ANOTHER DEPARTMENT OR AGENCY UNDER THE DEPARTMENT OF DEFENSE.

YOUR ASSISTANT SECRETARY POINTS OUT---

A PROGRAM WAS ESTABLISHED ON APRIL 1, 1966, TO LIMIT OVERSEAS EMPLOYMENT OF TRANSFERRED OR NEWLY HIRED EMPLOYEES TO FIVE YEARS EXCEPT UNDER CERTAIN CIRCUMSTANCES FOR WHICH AN EXTENSION MAY BE AUTHORIZED. NO LIMIT HAS BEEN ESTABLISHED FOR EMPLOYEES WHO WERE SERVING IN FOREIGN AREAS ON THAT DATE WHO WERE NOT SERVING UNDER AN AGREEMENT TO RETURN.

THE PROGRAM PROVIDES THAT EMPLOYEES REASSIGNED TO A POSITION OVERSEAS FROM ONE IN THE UNITED STATES RECEIVES REEMPLOYMENT RIGHTS UNDER PUBLIC LAW 86-585 AND ALSO SIGNS AN AGREEMENT THAT HE WILL BE REQUIRED TO EXERCISE HIS RETURN RIGHTS WITHIN FIVE YEARS UNLESS HIS TOUR OR TOURS ARE EXTENDED BY MUTUAL AGREEMENT. EMPLOYEES HIRED EITHER IN THE UNITED STATES OR IN FOREIGN AREAS ARE REQUIRED TO SIGN AN AGREEMENT AS A CONDITION OF EMPLOYMENT SPECIFYING THAT THEY WILL ACCEPT A REASSIGNMENT IN ANY POSITION IN THE CONTINENTAL UNITED STATES WHEN OFFERED AT THE GRADE AT WHICH EMPLOYED IN THE FOREIGN AREA. IT IS INTENDED THAT TO THE EXTENT FEASIBLE, AN OFFER WILL BE MADE WITHIN FIVE YEARS.

ANY CAREER OR CAREER-CONDITIONAL EMPLOYEE SATISFACTORILY COMPLETING A TOUR OF DUTY IN A FOREIGN AREA IS ELIGIBLE FOR RETURN PLACEMENT ASSISTANCE AND PROGRAMS TO ASSIST SUCH EMPLOYEES ARE MAINTAINED IN EACH OF THE MILITARY DEPARTMENTS. AMONG THE MEASURES PROVIDED TO ASSIST EMPLOYEES RETURNING TO THE UNITED STATES IS REGISTRATION IN THE DEPARTMENT OF DEFENSE CENTRALIZED REFERRAL SYSTEM. THIS IS A COMPUTERIZED OPERATION WHICH REGISTERS ALL ELIGIBLES FOR PLACEMENT AND WHICH IDENTIFIES VACANCIES THROUGHOUT ALL COMPONENTS OF THE DEPARTMENT OF DEFENSE IN THE UNITED STATES FOR WHICH THEY MAY BE CERTIFIED. APPROPRIATE PRIORITIES ARE ASSIGNED TO THE EMPLOYEES TO BE PLACED.

ONE OF THE MAJOR PROBLEMS INVOLVED IN TRANSFERRING EMPLOYEES FROM OVERSEAS TO A POSITION IN THE UNITED STATES IS THE APPARENT REQUIREMENT THAT THE EMPLOYING DEPARTMENT MUST PAY THE TRAVEL AND TRANSPORTATION EXPENSES FROM THE OVERSEAS POST TO THE POST OF DUTY IN THE UNITED STATES. BECAUSE THESE COSTS ARE HIGH, TRANSFERS ACROSS DEPARTMENTAL LINES ARE SELDOM ARRANGED. IN THE CASE OF EMPLOYEES BEING PLACED IN THE UNITED STATES IN AN ACTIVITY OF THE SAME DEPARTMENT, THE EMPLOYING DEPARTMENT PAYS THE EXPENSES.

TO MAKE THIS PROGRAM EFFECTIVE, IT IS IMPORTANT THAT IN THOSE CASES WHERE THE EMPLOYEE IS TO BE TRANSFERRED FROM ONE MILITARY DEPARTMENT OR DEFENSE AGENCY TO ANOTHER MILITARY DEPARTMENT OR DEFENSE AGENCY, THE LOSING DEPARTMENT OR AGENCY BE AUTHORIZED TO PAY THE TRAVEL AND TRANSPORTATION EXPENSES FOR EMPLOYEES, DEPENDENTS AND HOUSEHOLD EFFECTS FROM THE OVERSEAS POST TO THE NEW DUTY POST IN THE UNITED STATES. IF THIS CANNOT BE DONE, AT LEAST THE LOSING DEPARTMENT OR AGENCY PAY AN AMOUNT EQUAL TO EXPENSES OF TRAVEL TO THE EMPLOYEE'S PLACE OF RESIDENCE. THE EMPLOYING AGENCY WOULD PAY EXCESS TRAVEL COST (CONSTRUCTIVE COST IF TRAVEL IS NOT ACTUALLY PERFORMED TO PLACE OF RESIDENCE) FROM THAT PLACE TO THE EMPLOYEE'S NEW DUTY STATION.

SPECIFICALLY, YOUR ASSISTANT SECRETARY REQUESTS OUR DECISION AS TO WHETHER IT WOULD BE LEGALLY PERMISSIBLE TO ADMINISTRATIVELY ADOPT ANY OR ALL OF THE FOLLOWING PROVISIONS IN THE CASE OF AN EMPLOYEE OF A DEFENSE DEPARTMENT OR AGENCY WHO HAS SATISFACTORILY COMPLETED AN OVERSEAS TOUR OF DUTY AND WHO IS TO BE TRANSFERRED TO ANOTHER DEFENSE AGENCY FOR EMPLOYMENT IN THE UNITED STATES:

1. EFFECT THE TRANSFER WITH THE TRAVEL AND TRANSPORTATION EXPENSES TO BE PAID BY THE LOSING DEPARTMENT OR AGENCY.

2. EFFECT THE TRANSFER WITH THE TRAVEL AND TRANSPORTATION EXPENSES TO BE PAID BY THE LOSING DEPARTMENT OR AGENCY NOT TO EXCEED THE COST OF SUCH EXPENSES TO THE EMPLOYEE'S PLACE OF RESIDENCE, WITH ANY EXCESS COST FOR TRAVEL AND TRANSPORTATION TO THE NEW DUTY STATION TO BE PRORATED AND PAID BY THE EMPLOYING DEPARTMENT OR AGENCY.

3. IF 1 OR 2 ABOVE CANNOT BE APPROVED, REQUIRE THE LOSING AGENCY TO TRANSPORT THE EMPLOYEE, HIS DEPENDENTS AND HOUSEHOLD EFFECTS TO HIS PLACE OF RESIDENCE FOR SEPARATION AND UPON HIS ARRIVAL ACCEPT HIS RESIGNATION AND PERMIT HIM TO BE EMPLOYED THE FOLLOWING DAY BY A DIFFERENT DEFENSE DEPARTMENT OR AGENCY WITHOUT A BREAK IN SERVICE.

5 U.S.C. 5722 IS, IN PART, AS FOLLOWS:

(A) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE AND SUBJECT TO SUBSECTIONS (B) AND (C) OF THIS SECTION, AN AGENCY MAY PAY FROM ITS APPROPRIATIONS---

(1) TRAVEL EXPENSES OF A NEW APPOINTEE AND TRANSPORTATION EXPENSES OF HIS IMMEDIATE FAMILY AND HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS FROM THE PLACE OF ACTUAL RESIDENCE AT THE TIME OF APPOINTMENT TO THE PLACE OF EMPLOYMENT OUTSIDE THE CONTINENTAL UNITED STATES; AND

(2) THESE EXPENSES ON THE RETURN OF AN EMPLOYEE FROM HIS POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO THE PLACE OF ACTUAL RESIDENCE AT THE TIME OF ASSIGNMENT TO DUTY OUTSIDE THE UNITED STATES.

5 U.S.C. 5724 IS, IN PART, AS FOLLOWS:

(D) WHEN AN EMPLOYEE TRANSFERS TO A POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES, HIS EXPENSES OF TRAVEL AND TRANSPORTATION TO AND FROM THE POST SHALL BE ALLOWED TO THE SAME EXTENT AND WITH THE SAME LIMITATIONS PRESCRIBED FOR A NEW APPOINTEE UNDER SECTION 5722 OF THIS TITLE.

(E) WHEN AN EMPLOYEE TRANSFERS FROM ONE AGENCY TO ANOTHER, THE AGENCY TO WHICH HE TRANSFERS PAYS THE EXPENSES AUTHORIZED BY THIS SECTION.

WE UNDERSTAND THAT EACH OF THE EMPLOYEES TO WHOM YOUR DEPARTMENT'S LETTER APPLIES QUALIFIED EITHER UNDER 5 U.S.C. 5722 (A) OR 5 U.S.C. 5724 (D) FOR RETURN TRAVEL AND TRANSPORTATION EXPENSES BY REASON OF HAVING COMPLETED AN AGREED PERIOD OF SERVICE OVERSEAS. HOWEVER, EACH SUCH EMPLOYEE WILL BE RETURNING TO THE UNITED STATES FOR THE PURPOSE OF ACCEPTING A POSITION IN A DIFFERENT DEPARTMENT OR AGENCY UNDER THE DEPARTMENT OF DEFENSE, AND THE SOLE QUESTION IS WHETHER 5 U.S.C. 5724 (E) PRECLUDES THE LOSING AGENCY FROM PAYING FOR ALL OR ANY PART OF THE TRAVEL EXPENSES.

THERE IS NO DOUBT THAT IF THE EMPLOYEE IS EMPLOYED BY THE NEW (ACQUIRING) AGENCY PRIOR TO HIS RETURN TRAVEL TO THE UNITED STATES THE PROVISIONS OF 5 U.S.C. 5724 (E) WOULD PRECLUDE THE OLD (LOSING) AGENCY FROM PAYING ANY PART OF SUCH TRAVEL AND TRANSPORTATION EXPENSES. WE UNDERSTAND THAT THE FIRST TWO PROPOSALS SUBMITTED BY THE ASSISTANT SECRETARY RELATE TO ACTUAL TRANSFERS EFFECTED PRIOR TO THE RETURN OF THE EMPLOYEE TO THE UNITED STATES. IF SUCH BE THE CASE, WE KNOW OF NO LEGAL BASIS UPON WHICH ANY PART OF THE RETURN TRAVEL EXPENSES CAN BE PAID BY THE OLD (LOSING) AGENCY.

CONCERNING THE THIRD PROPOSAL, IT IS OUR UNDERSTANDING THAT THE EMPLOYEE WOULD BE RETURNED TO THE PLACE OF HIS ACTUAL RESIDENCE OR SOME OTHER POINT IN THE UNITED STATES FOR SEPARATION. AT THE TIME OF SUCH RETURN TRAVEL HE WOULD NOT HAVE BEEN EMPLOYED BY THE NEW (ACQUIRING) AGENCY TO WHICH HE LATER TRANSFERS. SEE 44 COMP. GEN. 767. IN SUCH A CASE IT WOULD BE PROPER FOR THE OLD (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.

IF AFTER ARRIVING AT THE PLACE OF ACTUAL RESIDENCE THE EMPLOYEE THEN TRANSFERS TO A NEW (ACQUIRING) AGENCY WITHOUT A BREAK IN SERVICE IT WOULD BE PROPER FOR THE ACQUIRING AGENCY TO PAY THE EXPENSES OF HIS TRAVEL FROM THE PLACE OF ACTUAL RESIDENCE OR OTHER SELECTED POINT TO THE DUTY STATION FOR THE POSITION TO WHICH HE TRANSFERS. 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. HOWEVER, IF A BREAK IN SERVICE OCCURS BETWEEN THE SEPARATION FROM THE OLD (LOSING) AGENCY AND THE TRANSFER TO THE NEW (ACQUIRING) AGENCY THEN NEITHER AGENCY CAN PAY THE EMPLOYEE'S EXPENSES FROM THE ACTUAL PLACE OF RESIDENCE TO THE DUTY STATION IN THE UNITED STATES UNDER THE NEW (ACQUIRING) AGENCY, UNLESS THE EMPLOYEE CAN QUALIFY FOR ENTITLEMENT TO SUCH EXPENSES UNDER SOME SPECIAL AUTHORITY, SUCH AS THAT CONTAINED IN 5 U.S.C. 5723.

SUBJECT TO THE ABOVE, WE OFFER NO OBJECTION TO THE THIRD PROPOSAL CONTAINED IN YOUR ASSISTANT SECRETARY'S LETTER.