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B-112928, NOVEMBER 4, 1953, 33 COMP. GEN. 200

B-112928 Nov 04, 1953
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WHICH PROVIDES THAT RETURN TRAVEL AND TRANSPORTATION EXPENSES OF OVERSEAS EMPLOYEES WHO COMPLETE A SPECIFIED MINIMUM PERIOD OF SERVICE WILL BE ALLOWED UPON SEPARATION FROM THE SERVICE. THEREFORE SEPARATION FROM THE FEDERAL SERVICE IS A NECESSARY PREREQUISITE TO THE PAYMENT OF SUCH EXPENSES BY THE GOVERNMENT. WHICH PROVIDES THAT RETURN TRAVEL AND TRANSPORTATION EXPENSES OF EMPLOYEES ASSIGNED TO POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES WILL BE ALLOWED UPON "SEPARATION. " IT IS NECESSARY THAT COMPLETE SEPARATION FROM THE SERVICE BE EFFECTED. IF THE EXPENSE THEREOF IS TO BE BORNE BY THE GOVERNMENT. IS AN "ACTUAL" OR "GOOD FAITH" SEPARATION AND IT IS NOT DISTINGUISHABLE FROM SEPARATION OF OTHER GOVERNMENT EMPLOYEES FROM THE SERVICE AND QUESTIONS RELATING TO THE STATUS AND PRIORITY FOR REEMPLOYMENT OF SUCH EMPLOYEES ARE FOR CONSIDERATION BY THE UNITED STATES CIVIL SERVICE COMMISSION.

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B-112928, NOVEMBER 4, 1953, 33 COMP. GEN. 200

TRAVELING EXPENSES - EMPLOYEES ASSIGNED TO DUTY OVERSEAS - RETURN TO THE UNITED STATES - SEPARATION REQUIREMENT UNDER THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED BY THE ACT OF SEPTEMBER 23, 1950, WHICH PROVIDES THAT RETURN TRAVEL AND TRANSPORTATION EXPENSES OF OVERSEAS EMPLOYEES WHO COMPLETE A SPECIFIED MINIMUM PERIOD OF SERVICE WILL BE ALLOWED UPON SEPARATION FROM THE SERVICE, THE PHRASE ,UPON SEPARATION FROM THE SERVICE" MAY NOT BE REGARDED SIMPLY AS REQUIRING THAT SUCH EMPLOYEES MUST COMPLETE A MINIMUM PERIOD OF SERVICE IN AN OVERSEAS AREA, AND THEREFORE SEPARATION FROM THE FEDERAL SERVICE IS A NECESSARY PREREQUISITE TO THE PAYMENT OF SUCH EXPENSES BY THE GOVERNMENT. UNDER THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED BY THE ACT OF SEPTEMBER 23, 1950, EMPLOYEES RETURNING FROM OVERSEAS AFTER COMPLETION OF A MINIMUM PERIOD OF SERVICE MAY NOT BE RETAINED ON THE ROLLS IN A LEAVE STATUS FOR A SHORT PERIOD OF TIME IN ORDER THAT THEY MAY SEEK EMPLOYMENT WITHIN THE UNITED STATES WITHOUT LOSING TENURE OF THEIR EMPLOYMENT UNDER SECTION 1310 OF THE SUPPLEMENTAL APPROPRIATION ACT, 1952 ( WHITTEN RIDER) AND IN ORDER TO ELIMINATE REQUIREMENTS OF LUMP-SUM LEAVE PAYMENT AND REFUND, AND OTHER ADMINISTRATIVE COMPLICATIONS. UNDER THE ADMINISTRATIVE EXPENSES ACT OF AUGUST 2, 1946, AS AMENDED BY THE ACT OF SEPTEMBER 23, 1950, WHICH PROVIDES THAT RETURN TRAVEL AND TRANSPORTATION EXPENSES OF EMPLOYEES ASSIGNED TO POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES WILL BE ALLOWED UPON "SEPARATION," IT IS NECESSARY THAT COMPLETE SEPARATION FROM THE SERVICE BE EFFECTED, INCLUDING LUMP-SUM LEAVE PAYMENT, HOWEVER THE TRANSPORTATION OF HOUSEHOLD GOODS AND EFFECTS, IF THE EXPENSE THEREOF IS TO BE BORNE BY THE GOVERNMENT, MAY BEGIN WITHIN TWO YEARS AFTER THE TIME OF THE EMPLOYEE'S RETURN HOME. THE "SEPARATION" REQUIRED BY THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED BY THE ACT OF SEPTEMBER 23, 1950, IN ORDER TO ENTITLE AN OVERSEAS EMPLOYEE WHO HAS COMPLETED A SPECIFIED MINIMUM PERIOD OF SERVICE TO RETURN TO THE UNITED STATES AT GOVERNMENT EXPENSE, IS AN "ACTUAL" OR "GOOD FAITH" SEPARATION AND IT IS NOT DISTINGUISHABLE FROM SEPARATION OF OTHER GOVERNMENT EMPLOYEES FROM THE SERVICE AND QUESTIONS RELATING TO THE STATUS AND PRIORITY FOR REEMPLOYMENT OF SUCH EMPLOYEES ARE FOR CONSIDERATION BY THE UNITED STATES CIVIL SERVICE COMMISSION.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE ARMY, NOVEMBER 4, 1953:

REFERENCE IS MADE TO THE ACTING SECRETARY'S LETTER OF SEPTEMBER 2, 1953, WITH ATTACHED STATEMENT, PRESENTING FOR REPLY CERTAIN QUESTIONS AND REQUESTING, IN EFFECT, RECONSIDERATION OF OFFICE DECISION OF AUGUST 16, 1951, 31 COMP. GEN. 36, RELATIVE TO THE RETURN AT GOVERNMENT EXPENSE OF EMPLOYEES ASSIGNED TO DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES.

IT IS UNDERSTOOD THAT THE SUBMISSION PRIMARILY IS DIRECTED TOWARD THE POSSIBLE CORRECTION OF STATED PROBLEMS EXISTING IN THE DEPARTMENT'S OVERSEA EMPLOYMENT PROGRAM--- DETAILED IN PARAGRAPH 4 OF THE STATEMENT ACCOMPANYING THE ACTING SECRETARY'S LETTER--- WHICH PROBLEMS STEM ESSENTIALLY FROM THE LACK OF STATUTORY AUTHORITY, AS RULED IN 31 COMP. GEN. 36, TO RETURN EMPLOYEES FROM OVERSEAS POSTS TO THEIR HOMES FOR THE PURPOSE OF TAKING ANNUAL OR VACATION LEAVE. IT IS URGED THAT FOR THE PURPOSE OF TAKING ANNUAL OR VACATION LEAVE. IT IS URGED THAT THE STATUTE IS SUSCEPTIBLE, UPON THE BASIS OF THE ARGUMENTS PRESENTED IN THE STATEMENT, OF AN INTERPRETATION WHICH WOULD NOT REQUIRE A BREAK IN CONTINUITY OF SERVICE WHEN AN EMPLOYEE IS RETURNED TO HIS HOME AT GOVERNMENT EXPENSE.

THE QUESTIONS SET OUT IN THE REFERRED-TO STATEMENT ARE, AS FOLLOWS:

A. MAY THE PHRASE "UPON SEPARATION FROM THE SERVICE," AS USED IN SECTION 2 OF THE 64 STAT. 985, BE REGARDED SIMPLY AS REQUIRING THAT EMPLOYEES MUST COMPLETE A MINIMUM SPECIFIED PERIOD OF SERVICE (NOT LESS THAN ONE OR MORE THAN THREE YEARS) IN AN OVERSEA AREA?

B. MAY EMPLOYEES RETURNING FROM OVERSEA AREAS AFTER COMPLETION OF A MINIMUM PERIOD OF SERVICE BE RETAINED ON THE DEPARTMENT'S ROLLS IN A LEAVE STATUS FOR A SHORT PERIOD OF TIME, IN ORDER THAT THEY MAY SEEK EMPLOYMENT WITHIN THE UNITED STATES WITHOUT LOSING TENURE OF THEIR EMPLOYMENT UNDER SECTION 1310 OF THE SUPPLEMENTAL APPROPRIATION ACT, 1952, AND IN ORDER TO ELIMINATE REQUIREMENTS OF LUMP-SUM LEAVE PAYMENT AND REFUND, AND OTHER ADMINISTRATIVE COMPLICATIONS?

C. IN THE EVENT "A" IS ANSWERED IN THE NEGATIVE, IS IT NECESSARY THAT COMPLETE SEPARATION FROM THE SERVICE BE EFFECTED INCLUDING RETURN OF HOUSEHOLD GOODS AND EFFECTING A LUMP-SUM LEAVE AYMENT?

D. IF "C" IS ANSWERED AFFIRMATIVELY, ARE THERE ANY RESTRICTIONS ON THE REEMPLOYMENT OF THE INDIVIDUAL BEING SEPARATED? IF SO, IS IT CONSIDERED THAT THE LIMITATION OF "SEPARATION" IS SUFFICIENT TO REQUIRE THE PASSING OVER OF VETERAN PREFERENCE ELIGIBLES OR OTHER PERSONS WHO ARE ENTITLED TO PRIORITY CONSIDERATION FOR REEMPLOYMENT UNDER CIVIL SERVICE REGULATIONS, WHO ARE AVAILABLE AND ELIGIBLE FOR OVERSEA EMPLOYMENT, SIMPLY BECAUSE THEY HAVE PREVIOUSLY SERVED IN OVERSEA AREAS AND HAVE BEEN RETURNED THEREFROM AT GOVERNMENT EXPENSE? DO THE RESTRICTIONS ALSO APPLY TO REEMPLOYMENT WITHIN THE UNITED STATES?

CAREFUL STUDY HAS BEEN GIVEN THE VIEWS EXPRESSED IN SUPPORT OF THE CONTENTION THAT THE PERTINENT SECTIONS OF THE ACT OF SEPTEMBER 23, 1950, 64 STAT. 985, BE DIFFERENTLY CONSTRUED, BUT IT SEEMS THAT THERE HAS BEEN OVERLOOKED IN THE ARGUMENTS ADVANCED CERTAIN FUNDAMENTAL CONSIDERATIONS WHICH ARE IMPLICIT IN OFFICE DECISION OF AUGUST 16, 1951, B-104200, 31 COMP. GEN. 36. IT LONG HAS BEEN THE RULE THAT AN EMPLOYEE MUST PRESENT HIMSELF AT HIS FIRST DUTY STATION AT HIS OWN EXPENSE AND, SIMILARLY, THAT, UPON TERMINATION OF HIS SERVICES, THE EXPENSE INCURRED IN RETURNING HOME MUST BE BORNE BY HIM. IT IS NOT BELIEVED THAT IT SERIOUSLY COULD BE CONTENDED THAT THE AUTHORITY CONTAINED IN SECTION 3 (A) OF THE ACT OF JUNE 5, 1942, 56 STAT. 314, AND LATER IN SECTION 7 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 806, WAS NOT DIRECTED PRIMARILY TOWARD OVERCOMING THAT RULE WITH RESPECT TO EMPLOYEES APPOINTED FOR DUTY OUTSIDE THE UNITED STATES. THE ACT OF SEPTEMBER 23, 1950, 64 STAT. 985, AS SET FORTH IN PARAGRAPH 3 OF THE STATEMENT AMENDED THE ACT OF AUGUST 2, 1946, SO AS TO ESTABLISH BEYOND DOUBT THAT EMPLOYEES WERE ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSES WHEN RETURNED TO THE UNITED STATES FOR SEPARATION UPON COMPLETION OF SPECIFIED MINIMUM PERIOD OF SERVICE. NONE OF THOSE STATUTES REFER TO THE QUESTION OF LEAVE.

ANOTHER CONSIDERATION IS THAT, WITH THE EXCEPTION OF FOREIGN SERVICE PERSONNEL AND OTHER ASSIMILATED TO THE LAWS RELATING TO SUCH PERSONNEL, THE GOVERNMENT HAS NEVER BY EXPRESS LEGISLATION ASSUMED THE OBLIGATION OF PAYING THE TRANSPORTATION EXPENSES OF EMPLOYEES TRAVELING TO AN FROM THE PLACES WHERE THEY ENJOY THEIR ANNUAL OR VACATION LEAVE. IN THAT REGARD IT SEEMS APPROPRIATE TO QUOTE THE CLEAR AND UNAMBIGUOUS LANGUAGE OF THE PERTINENT PROVISIONS OF THE FOREIGN SERVICE ACT OF 1946, 60 STAT. 999, WHICH READ AS FOLLOWS:

SEC. 911. THE SECRETARY MAY, UNDER SUCH REGULATIONS AS HE SHALL PRESCRIBE, PAY---

(1) THE TRAVEL EXPENSES OF OFFICERS AND EMPLOYEES OF THE SERVICE, INCLUDING EXPENSES INCURRED WHILE TRAVELING PURSUANT TO ORDERS ISSUED BY THE SECRETARY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 933 WITH REGARD TO THE GRANTING OF HOME LEAVE;

SEC. 933. (A) THE SECRETARY SHALL ORDER TO THE CONTINENTAL UNITED STATES ON STATUTORY LEAVE OF ABSENCE EVERY OFFICER AND EMPLOYEE OF THE SERVICE WHO IS A CITIZEN OF THE UNITED STATES UPON COMPLETION OF TWO YEARS' CONTINUOUS SERVICE ABROAD OR AS SOON AS POSSIBLE THEREAFTER.

I AM SURE YOU WILL AGREE THAT ANY CONSTRUCTION BY THIS OFFICE THAT WOULD IMPUTE TO THE CONGRESS AN INTENT TO INCLUDE IN SECTION 2 OF THE ACT OF SEPTEMBER 23, 1950, AUTHORITY SIMILAR TO THAT SO CLEARLY AUTHORIZED BY THE FOREIGN SERVICE ACT OF 1946, WOULD BE TANTAMOUNT TO USURPING THE LEGISLATIVE POWER, AND YET TO HOLD THAT SEPARATION IS NOT A NECESSARY INCIDENT TO THE RETURN OF AN EMPLOYEE AT GOVERNMENT EXPENSE UPON THE COMPLETION OF AN AGREED PERIOD OF SERVICE OVERSEAS WOULD, AS A MATTER OF COURSE, LEAD TO THAT RESULT.

IT SHOULD BE POINTED OUT THAT THE PROBLEMS TO WHICH THE ACTING SECRETARY'S LETTER REFER HAVE BEEN TO THE FORE AT LEAST SINCE 1946. MOREOVER, AFTER THE PASSAGE OF THE ACT OF SEPTEMBER 23, 1950, THIS OFFICE HELD TO THE VIEW THAT FURTHER LEGISLATION WOULD BE REQUIRED TO AUTHORIZE THE TRANSPORTATION AT GOVERNMENT EXPENSE OF EMPLOYEES RETURNING TO THE UNITED STATES FOR SO-CALLED HOME LEAVE. IN THAT REGARD YOUR ATTENTION IS INVITED TO THE SENATE COMMITTEE PRINT, 83D CONGRESS, ST SESSION, OF THE REPORT DATED JANUARY 28, 1953, ON OVERSEAS PAY AND COMMITTEE ON POST OFFICE AND CIVIL SERVICE, WHEREIN, ON PAGES 155 AND 157, THE VIEWS OF THE DEPARTMENT OF THE ARMY AND OF THE DEPARTMENT OF DEFENSE, RESPECTIVELY, ON THE NEED FOR LEGISLATION AUTHORIZING HOME LEAVE AND LEAVE TRAVEL ARE SET FORTH. ALSO, SEE H.R. 8095, 82D CONGRESS, 2D SESSION, AND H.R. 179, 83D CONGRESS, ST SESSION, IDENTICAL BILLS, PROPOSING THE AUTHORIZATION OF HOME LEAVE AND PAYMENT OF INCIDENTAL TRANSPORTATION EXPENSES BETWEEN PERIODS OF OVERSEAS SERVICE.

IN LIGHT OF THE FOREGOING, THIS OFFICE MUST ADHERE TO THE VIEW THAT, IN THE ABSENCE OF LEGISLATION OTHERWISE, SEPARATION FROM THE FEDERAL SERVICE IS A NECESSARY PREREQUISITE TO THE PAYMENT BY THE GOVERNMENT OF THE TRANSPORTATION EXPENSES OF AN EMPLOYEE RETURNING TO HIS HOME AFTER SPECIFIED PERIOD OF SERVICE OVERSEAS.

ACCORDINGLY, QUESTIONS (A) (B) ARE ANSWERED IN THE NEGATIVE. QUESTION (C) IS ANSWERED IN THE AFFIRMATIVE WITH RESPECT TO THE PAYMENT OF LUMP-SUM LEAVE. THE TRANSPORTATION OF HOUSEHOLD GOODS AND EFFECTS, IF THE EXPENSE THEREOF IS TO BE BORNE BY THE GOVERNMENT, MAY BEGIN WITHIN TWO YEARS AFTER THE TIME OF THE EMPLOYEE'S RETURN TO HIS HOME. SEE 28 COMP. GEN. 285, 289.

IN ANSWER TO THE QUERY CONTAINED IN THE FIRST SENTENCE OF QUESTION (D) IT WOULD APPEAR THAT THE SEPARATION REQUIRED BY SECTION 2, PUBLIC LAW 830, 64 STAT. 985, SUPRA, IS AN "ACTUAL" OR "GOOD FAITH" SEPARATION, AND IT IS NOT DISTINGUISHABLE FROM SEPARATIONS OF OTHER GOVERNMENT EMPLOYEES FROM THE SERVICE. THE DEPARTMENT OF THE NAVY HAS ISSUED INSTRUCTIONS ( OIR NOTICE 12240, JUNE 4, 1953) PROVIDING THAT, AFTER THE PERIOD OF TIME HAS ELAPSED FOR WHICH LUMP-SUM LEAVE PAYMENT HAS BEEN MADE, THE FORMER EMPLOYEE MAY RECEIVE CONSIDERATION FOR A NEW APPOINTMENT OVERSEAS AND A NEW EMPLOYMENT AGREEMENT. THIS OFFICE VIEWS THE NAVY INSTRUCTIONS AS ACCOMPLISHING A "GOOD FAITH" SEPARATION. THE REMAINDER OF THE QUESTION WOULD APPEAR TO RELATE PRIMARILY TO THE STATUS AND PRIORITY FOR REEMPLOYMENT AND WOULD BE FOR CONSIDERATION BY THE UNITED STATES CIVIL SERVICE COMMISSION.

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