A-24427, OCTOBER 12, 1928, 8 COMP. GEN. 178

A-24427: Oct 12, 1928

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REIMBURSEMENT OF THE EXPENSES OF TRANSPORTATION AND SUBSISTENCE OF THE FAMILIES OF FOREIGN SERVICE OFFICERS IN CONNECTION WITH THE RETURN OF THE OFFICER TO WASHINGTON FOR CONFERENCE AND TEMPORARY DUTY IS NOT AUTHORIZED. 1928: I HAVE YOUR LETTER OF AUGUST 29. WHEREIN CREDIT WAS SUSPENDED FOR $143.41. WHILE HE WAS IN WASHINGTON. THERE WAS NO GENERAL STATUTE GIVING TO THE FAMILIES OF FOREIGN SERVICE OFFICERS THE RIGHT TO REIMBURSEMENT OF THE EXPENSES OF TRANSPORTATION AND SUBSISTENCE INCURRED IN GOING TO AND RETURNING FROM THE POSTS OF DUTY OF THE OFFICERS. WHEN THE OFFICER WAS ORDERED TO THE UNITED STATES FOR CONSULTATION OR TEMPORARY DUTY. THE PROVISION IN THE ACTS MAKING APPROPRIATIONS FOR THE DIPLOMATIC AND CONSULAR SERVICE FOR THE FISCAL YEARS 1921 AND 1922 WAS THE SAME AS THAT QUOTED FOR THE FISCAL YEAR 1920.

A-24427, OCTOBER 12, 1928, 8 COMP. GEN. 178

TRANSPORTATION - SUBSISTENCE - DEPENDENTS OF FOREIGN-SERVICE OFFICERS UNDER EXISTING STATUTES, REIMBURSEMENT OF THE EXPENSES OF TRANSPORTATION AND SUBSISTENCE OF THE FAMILIES OF FOREIGN SERVICE OFFICERS IN CONNECTION WITH THE RETURN OF THE OFFICER TO WASHINGTON FOR CONFERENCE AND TEMPORARY DUTY IS NOT AUTHORIZED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, OCTOBER 12, 1928:

I HAVE YOUR LETTER OF AUGUST 29, 1928 (FA-123-C77/314), RELATIVE TO SETTLEMENT K-28829-S, DATED JUNE 30, 1928, OF THE ACCOUNT OF ARTHUR B. COOKE, AMERICAN CONSUL AT PLYMOUTH, ENGLAND, WHEREIN CREDIT WAS SUSPENDED FOR $143.41, BEING EXPENSES OF HIS WIFE IN MARCH AND APRIL, 1928, WHILE PROCEEDING WITH HIM FROM PLYMOUTH, ENGLAND, TO WASHINGTON, D.C., AND WHILE HE WAS IN WASHINGTON, D.C., FOR CONSULTATION AND TEMPORARY DUTY IN THE DEPARTMENT OF STATE. IT APPEARS THAT THE CONSUL PROCEEDED FROM HIS POST TO THE UNITED STATES UNDER PROPER ORDERS FROM THE SECRETARY OF STATE FOR CONSULTATION AND TEMPORARY DUTY IN THE DEPARTMENT. THE ORDER ALSO STATED THAT TRANSPORTATION WOULD BE FURNISHED THE CONSUL AND HIS FAMILY TO WASHINGTON.

PRIOR TO THE FOREIGN SERVICE ACT OF MAY 24, 1924, 43 STAT. 143, REFERRED TO BY YOU AS THE ROGERS ACT, THERE WAS NO GENERAL STATUTE GIVING TO THE FAMILIES OF FOREIGN SERVICE OFFICERS THE RIGHT TO REIMBURSEMENT OF THE EXPENSES OF TRANSPORTATION AND SUBSISTENCE INCURRED IN GOING TO AND RETURNING FROM THE POSTS OF DUTY OF THE OFFICERS, THE ONLY AUTHORITY THEREFOR BEING FOUND IN THE ACTS MAKING APPROPRIATION FOR THE TRANSPORTATION OF THE OFFICERS THEMSELVES.

THE ACT OF APRIL 15, 1918, 40 STAT. 519, 521, MAKING APPROPRIATIONS FOR THE DIPLOMATIC AND CONSULAR SERVICE FOR THE FISCAL YEAR 1919, PROVIDED AS FOLLOWS:

TO PAY THE ACTUAL AND NECESSARY EXPENSES OF TRANSPORTATION UNDER SUCH REGULATIONS AS THE SECRETARY OF STATE MAY PRESCRIBE, OF DIPLOMATIC AND CONSULAR OFFICERS AND CLERKS IN EMBASSIES, LEGATIONS, AND CONSULATES IN GOING TO AND RETURNING FROM THEIR POSTS, OR WHEN TRAVELING UNDER ORDERS OF THE SECRETARY OF STATE, AT THE RATE OF NOT EXCEEDING TEN CENTS PER MILE, BUT NOT INCLUDING ANY EXPENSE INCURRED IN CONNECTION WITH LEAVES OF ABSENCE, $125,000.

THE ACT OF MARCH 4, 1919, 40 STAT. 1325, 1328, MAKING SIMILAR APPROPRIATIONS FOR THE FISCAL YEAR 1920, PROVIDED:

TO PAY THE ITEMIZED AND VERIFIED STATEMENTS OF THE ACTUAL AND NECESSARY EXPENSES OF TRANSPORTATION AND SUBSISTENCE, UNDER SUCH REGULATIONS AS THE SECRETARY OF STATE MAY PRESCRIBE, OF DIPLOMATIC AND CONSULAR OFFICERS AND CLERKS IN EMBASSIES, LEGATIONS, AND CONSULATES AND THEIR FAMILIES AND EFFECTS IN GOING TO AND RETURNING FROM THEIR POSTS, OR WHEN TRAVELING UNDER ORDERS OF THE SECRETARY OF STATE, BUT NOT INCLUDING ANY EXPENSE INCURRED IN CONNECTION WITH LEAVES OF ABSENCE, $145,000.

UNDER THE AUTHORITY OF THE ACT LAST CITED THE SECRETARY OF STATE PRESCRIBED REGULATIONS PROVIDING THAT AN OFFICER OR CLERK ENTITLED TO REIMBURSEMENT FOR THE EXPENSES OF TRANSPORTATION AND SUBSISTENCE IN GOING TO AND RETURNING FROM HIS POST, SHOULD BE ENTITLED TO REIMBURSEMENT FOR THE AMOUNTS ACTUALLY AND NECESSARILY DISBURSED BY HIM FOR EXPENSES OF TRANSPORTATION AND SUBSISTENCE, AS DEFINED AND LIMITED BY THE REGULATIONS, OF HIMSELF AND FAMILY. WHEN TRAVELING UNDER ORDERS OF THE SECRETARY OF STATE OTHERWISE THAN GOING TO HIS POST OR RETURNING FROM HIS POST TO THE UNITED STATES, HE SHOULD BE ENTITLED TO REIMBURSEMENT OF HIS OWN EXPENSES AS PREVIOUSLY DEFINED, BUT NOT FOR THOSE OF HIS FAMILY, UNLESS SPECIALLY AND SPECIFICALLY AUTHORIZED BY THE SECRETARY OF STATE, AND THIS SHOULD APPLY, ALSO, WHEN THE OFFICER WAS ORDERED TO THE UNITED STATES FOR CONSULTATION OR TEMPORARY DUTY.

THE PROVISION IN THE ACTS MAKING APPROPRIATIONS FOR THE DIPLOMATIC AND CONSULAR SERVICE FOR THE FISCAL YEARS 1921 AND 1922 WAS THE SAME AS THAT QUOTED FOR THE FISCAL YEAR 1920. FOR THE FISCAL YEAR 1923 THE LAST CLAUSE WAS CHANGED TO READ "OR OF SUCH OFFICERS AND CLERKS WHEN TRAVELING UNDER ORDERS OF THE SECRETARY OF STATE," THUS ELIMINATING THE FAMILIES FROM THE RIGHT TO REIMBURSEMENT EXCEPT WHEN GOING TO AND RETURNING FROM THE POSTS OF THE OFFICERS AND CLERKS.

FOR THE FISCAL YEAR 1924 THE PROVISION WAS THE SAME AS FOR 1923, EXCEPT THAT A PROVISO WAS ADDED REQUIRING TRANSPORTATION ON AMERICAN VESSELS UNLESS CERTIFIED BY THE SECRETARY OF STATE AS NOT AVAILABLE.

SECTION 15 OF THE FOREIGN SERVICE ACT OF MAY 24, 1924, SUPRA, PROVIDES:

THAT THE SECRETARY OF STATE IS AUTHORIZED, WHENEVER HE DEEMS IT TO BE IN THE PUBLIC INTEREST, TO ORDER TO THE UNITED STATES ON HIS STATUTORY LEAVE OF ABSENCE ANY FOREIGN SERVICE OFFICER WHO HAS PERFORMED THREE YEARS OR MORE OF CONTINUOUS SERVICE ABROAD: PROVIDED, THAT THE EXPENSES OF TRANSPORTATION AND SUBSISTENCE OF SUCH OFFICERS AND THEIR IMMEDIATE FAMILIES, IN TRAVELING FROM THEIR POSTS TO THEIR HOMES IN THE UNITED STATES AND RETURN, SHALL BE PAID UNDER THE SAME RULES AND REGULATIONS APPLICABLE IN THE CASE OF OFFICERS GOING TO AND RETURNING FROM THEIR POSTS UNDER ORDERS OF THE SECRETARY OF STATE WHEN NOT ON LEAVE * * *.

THE PROVISIONS IN THE APPROPRIATION ACTS FOR THE FISCAL YEARS 1925,1926, AND 1927 ARE THE SAME AS FOR THE FISCAL YEAR 1924. FOR THE FISCAL YEAR 1928 THE APPROPRIATION FOR THE EXPENSES OF TRANSPORTATION AND SUBSISTENCE OF THE FAMILIES AND EFFECTS OF OFFICERS AND CLERKS IN GOING TO AND RETURNING FROM THEIR POSTS WAS MADE AVAILABLE WITH THE MAXIMUM LIMITATION TO $25,000 FOR SUCH EXPENSES INCURRED IN CONNECTION WITH LEAVES OF ABSENCE.

THE EXPENSES UNDER CONSIDERATION IN THE INSTANT CASE WERE INCURRED IN THE FISCAL YEAR 1928, UNDER THE TERMS OF THE FOREIGN SERVICE ACT OF MAY 24, 1924, AND OF THE APPROPRIATION FOR THE FISCAL YEAR 1928, 44 STAT. 1183. THE EXPENSES FOR TRANSPORTATION AND SUBSISTENCE OF THE FAMILY OF AN OFFICER ARE REIMBURSABLE IF INCURRED WHEN GOING TO AND RETURNING FROM THE POST, AND AS TO A FOREIGN SERVICE OFFICER, WHEN HE IS ORDERED TO THE UNITED STATES ON HIS STATUTORY LEAVE OF ABSENCE. THE PROVISION IN THE APPROPRIATION FOR THE FISCAL YEAR 1928 MAKING IT AVAILABLE IN CONNECTION WITH LEAVES OF ABSENCE APPEARS TO BE NOTHING MORE THAN A PROVISION TO CARRY INTO EFFECT THE PROVISION IN SECTION 15 OF THE FOREIGN SERVICE ACT RELATIVE TO EXPENSES INCURRED WHEN AN OFFICER IS ORDERED TO THE UNITED STATES ON STATUTORY LEAVE OF ABSENCE.

IN VIEW OF THE VARIOUS ACTS QUOTED AND CITED AS THE LAW NOW STANDS IT IS CLEARLY THE CONSIDERED INTENT OF THE CONGRESS THAT THE REIMBURSEMENT OF THE EXPENSES OF TRANSPORTATION AND SUBSISTENCE OF THE FAMILIES AND EFFECTS OF FOREIGN SERVICE OFFICERS AND CLERKS IS AUTHORIZED ONLY FOR THOSE INCURRED IN GOING TO AND RETURNING FROM THEIR POSTS, OR IN THE CASE OF THE IMMEDIATE FAMILIES OF OFFICERS, FOR THOSE INCURRED IN TRAVELING TO THE UNITED STATES WHEN ORDERED BY THE SECRETARY OF STATE ON STATUTORY LEAVES OF ABSENCE.

SINCE IT DOES NOT APPEAR FROM THE FACTS SHOWN THAT THE EXPENSES OF THE FOREIGN SERVICE OFFICER'S WIFE IN THIS CASE WERE INCURRED IN RETURNING FROM THE POST OR IN CONNECTION WITH THE OFFICER'S BEING ORDERED TO THE UNITED STATES ON A STATUTORY LEAVE OF ABSENCE, THERE IS NO AUTHORITY OF LAW FOR THE REIMBURSEMENT OF THE EXPENSES IN QUESTION.

THE PROVISION FOR THE TRANSPORTATION OF THE FAMILIES AND EFFECTS OF OFFICERS AND EMPLOYEES IS INTENDED TO RELIEVE SUCH OFFICERS AND EMPLOYEES OF THE BURDEN OF THE EXPENSE OF TAKING THEIR FAMILIES WITH THEM TO THEIR POSTS OF DUTY IN FOREIGN COUNTRIES AND TO BRING THEM BACK TO THE UNITED STATES UPON THE TERMINATION OF DUTY ABROAD. IT IS NOT INTENDED TO BE AVAILABLE FOR THE TRANSPORTATION AND SUBSISTENCE OF THE FAMILIES OF OFFICERS AND EMPLOYEES WHO ARE ORDERED TO COME TO THIS COUNTRY IN CONNECTION WITH THEIR OFFICIAL DUTIES EXCEPT WHEN AN OFFICER IS ORDERED TO RETURN ON STATUTORY LEAVE OF ABSENCE. FOR EXAMPLE, A FOREIGN SERVICE OFFICER IS ENTITLED UNDER THE PROVISION OF THE APPROPRIATIONS CITED TO HAVE HIS FAMILY AND EFFECTS TRANSPORTED TO HIS POST OF DUTY ABROAD; IF HE IS TRANSFERRED FROM THE FIRST POST OF DUTY TO ANOTHER FOREIGN POST, HE IS ENTITLED TO HAVE HIS FAMILY AND EFFECTS TRANSFERRED FROM THE FIRST TO THE SECOND POST OF DUTY, AND IF HIS SERVICES ARE TERMINATED, HE IS ENTITLED TO HAVE THEM TRANSPORTED BACK TO THE UNITED STATES.

A FOREIGN SERVICE OFFICER IS NOT ENTITLED TO HAVE HIS FAMILY AND EFFECTS TRANSPORTED FROM HIS POST OF DUTY TO ANOTHER POST TO WHICH HE IS TEMPORARILY ATTACHED. FOR EXAMPLE, IF A FOREIGN SERVICE OFFICER'S POST OF DUTY IS LONDON AND IT IS FOUND NECESSARY TO SEND HIM TO PARIS ON OFFICIAL BUSINESS AND, PERHAPS, TO HAVE HIM REMAIN THERE TEMPORARILY, HE WOULD NOT BE ENTITLED TO HAVE HIS FAMILY AND EFFECTS TRANSPORTED TO PARIS AT GOVERNMENT EXPENSE. THE SAME IS TRUE AS TO AN OFFICIAL TRIP TO THE UNITED STATES.

IT IS SUGGESTED IN YOUR LETTER THAT THE STATE DEPARTMENT'S SUPPLEMENT TO THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS WAS APPROVED BY THIS OFFICE, THE INFERENCE BEING THAT SUCH APPROVAL BINDS THE OFFICE TO ALLOW CREDIT FOR EXPENDITURES PURPORTED TO HAVE BEEN INCURRED UNDER THE AUTHORITY OF SUCH SUPPLEMENTAL REGULATIONS. THE REGULATIONS ARE APPLICABLE ONLY TO CASES ARISING THEREUNDER IN WHICH THERE APPEARS STATUTORY AUTHORITY FOR THE INCURRING OF EXPENDITURES. THE MERE CITING OF THE REGULATION DOES NOT SUPPLY THE LACK OF STATUTORY AUTHORITY. FURTHERMORE, YOUR ATTENTION IS INVITED TO THE LAST PARAGRAPH OF THE LETTER OF APRIL 15, 1927, A-18057, DEALING WITH THE SUPPLEMENTAL REGULATIONS HEREINBEFORE REFERRED TO, IN WHICH IT IS POINTED OUT THAT---

* * * NOTHING SAID HEREIN CAN OPERATE TO PRECLUDE THIS OFFICE FROM FURTHER QUESTIONING THE LEGALITY OF ANY PROVISION IN SAID PROPOSED REGULATIONS SHOULD THE SAME HEREAFTER BE INVOLVED IN ANY MATTER PROPERLY BEFORE THE OFFICE FOR OFFICIAL ACTION.

ACCORDINGLY, YOU ARE ADVISED THAT CREDIT FOR THE SUSPENDED ITEMS WILL BE DISALLOWED IN THE NEXT SETTLEMENT OF THE OFFICER'S ACCOUNTS.