A-36027, JULY 14, 1931, 11 COMP. GEN. 16

A-36027: Jul 14, 1931

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IS NOT ENTITLED TO SALARY CONTRARY TO THE PROVISIONS OF SECTION 1742 OF THE REVISED STATUTES FOR EXCESS TRANSIT TIME OCCASIONED BY CIRCUITOUS ROUTE USED IN RETURNING TO HIS POST OF DUTY AFTER EXPIRATION OF LEAVE. 1931: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 31. IT APPEARS FROM THE RECORDS ON FILE WITH YOUR ACCOUNT THAT YOU WERE AUTHORIZED TO PROCEED TO THE UNITED STATES UNDER INSTRUCTION OF THE DEPARTMENT OF STATE. YOU WILL BE REIMBURSED THE ACTUAL AND NECESSARY EXPENSES OF TRANSPORTATION AND SUBSISTENCE OF YOURSELF AND FAMILY. UNLESS THERE ARE NO AMERICAN VESSELS AVAILABLE. 3. DURING YOUR SIXTY DAYS IN THE UNITED STATES YOU WILL BE SUBJECTTO CALL AS REQUIRED BY THE DEPARTMENT FOR DUTY AND FOR TRADE CONFERENCE WORK.

A-36027, JULY 14, 1931, 11 COMP. GEN. 16

FOREIGN SERVICE OFFICERS - LEAVES OF ABSENCE IN THE UNITED STATES A FOREIGN SERVICE OFFICER ORDERED TO THE UNITED STATES ON HIS STATUTORY LEAVE OF ABSENCE PURSUANT TO SECTION 15 OF THE ACT OF MAY 24, 1924, 43 STAT. 143, IS NOT ENTITLED TO SALARY CONTRARY TO THE PROVISIONS OF SECTION 1742 OF THE REVISED STATUTES FOR EXCESS TRANSIT TIME OCCASIONED BY CIRCUITOUS ROUTE USED IN RETURNING TO HIS POST OF DUTY AFTER EXPIRATION OF LEAVE, AND HAS NO GREATER RIGHTS IN THIS RESPECT THAN HAS AN OFFICER RETURNING TO HIS POST FROM LEAVE IN THE UNITED STATES AT HIS OWN EXPENSE.

COMPTROLLER GENERAL MCCARL TO WALTER F. BOYLE, AMERICAN CONSUL, JULY 14, 1931:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 31, 1930, FILE 125.5 WFB:PKN, RELATIVE TO THE DISALLOWANCE OF CREDIT IN THE SETTLEMENT OF YOUR ACCOUNTS UNDER CERTIFICATE NO. K-54528'S OF AN ITEM OF $118.75, REPRESENTING SALARY FROM DECEMBER 16 TO 24, 1928, AS UNAUTHORIZED TRANSIT TIME USED IN RETURNING TO YOUR POST AFTER A LEAVE OF ABSENCE IN THE UNITED STATES.

IT APPEARS FROM THE RECORDS ON FILE WITH YOUR ACCOUNT THAT YOU WERE AUTHORIZED TO PROCEED TO THE UNITED STATES UNDER INSTRUCTION OF THE DEPARTMENT OF STATE, DATED JUNE 11, 1928, AS FOLLOWS:

1. UNDER THE PROVISIONS OF SECTION 15 OF THE ACT OF MAY 24, 1924 (ROGERS ACT), THE DEPARTMENT HEREBY GRANTS YOU SIXTY DAYS LEAVE TO VISIT THE UNITED STATES DURING THE FISCAL YEAR JULY 1, 1928, TO JUNE 30, 1929, PROVIDED THAT IF TAKEN BEFORE DECEMBER 31, 1928, ANY LEAVE ALREADY AVAILED OF IN THE CALENDAR YEAR 1928 MUST BE DEDUCTED FROM THE SIXTY DAYS.

2. YOU WILL BE REIMBURSED THE ACTUAL AND NECESSARY EXPENSES OF TRANSPORTATION AND SUBSISTENCE OF YOURSELF AND FAMILY, IN ACCORDANCE WITH THE PROVISIONS OF THE TRAVEL REGULATIONS, TO AND FROM YOUR HOME IN THE UNITED STATES BY THE MOST DIRECT AND ECONOMICAL USUALLY TRAVELED ROUTE, PROVIDED THAT TRAVEL BY WATER MUST BE ON AMERICAN VESSELS OF AT LEAST AVERAGE SPEED, UNLESS THERE ARE NO AMERICAN VESSELS AVAILABLE.

3. DURING YOUR SIXTY DAYS IN THE UNITED STATES YOU WILL BE SUBJECTTO CALL AS REQUIRED BY THE DEPARTMENT FOR DUTY AND FOR TRADE CONFERENCE WORK, THE LATTER WHEN SPECIFICALLY SO AUTHORIZED BEING AT GOVERNMENT EXPENSE UNDER THE TRAVEL REGULATIONS.

4. AS THE FUNDS AVAILABLE FOR THESE PURPOSES ARE LIMITED AND INCASE YOU ARE UNABLE TO AVAIL YOURSELF OF THIS LEAVE THE DEPARTMENT DESIRES TO EXTEND THE PRIVILEGE TO SOME OTHER OFFICER, YOU SHOULD REPORT AT ONCE BY MAIL WHETHER YOU DESIRE LEAVE OF ABSENCE WITH PERMISSION TO VISIT THE UNITED STATES UNDER THE ABOVE-MENTIONED CONDITIONS. YOU WILL STATE THE APPROXIMATE DATE ON WHICH YOU WILL WISH TO DEPART FROM YOUR POST AND INDICATE FOR THE DEPARTMENT'S CONVENIENCE WHETHER ARRANGEMENTS FOR YOUR RELIEF ARE NECESSARY.

5. IN THE EVENT THAT YOU DESIRE TO AVAIL YOURSELF OF THE LEAVE SUGGESTED HEREIN, YOU WILL SUBMIT IMMEDIATELY BY MAIL DETAILED ESTIMATES OF THE PROBABLE TOTAL OFFICIAL EXPENSE OF ROUND-TRIP TRANSPORTATION FOR YOURSELF AND THE MEMBERS OF YOUR FAMILY IN ACCORDANCE WITH THE MULTIGRAPHED INSTRUCTIONS OF FEBRUARY 4 AND 18, 1925. YOUR REPORT SHOULD SHOW THE NUMBER AND AGES OF THE MEMBERS OF YOUR FAMILY WHO WILL ACCOMPANY YOU IN THE EVENT THAT LEAVE IS GRANTED.

6. IT WOULD ALSO BE WELL FOR YOU TO INDICATE THE PORT AT WHICH YOU PROPOSE TO ARRIVE IN THE UNITED STATES, AND YOU SHOULD CALL UPON THE UNITED STATES DESPATCH AGENT, OR, IN LIEU THEREOF, THE BRANCH OF THE BUREAU OF FOREIGN AND DOMESTIC COMMERCE, AT THAT PORT IN ORDER THAT YOU MAY WITHOUT FAIL OBTAIN ANY INSTRUCTIONS WHICH MAY BE SENT TO YOU THERE, IN CASE CONFERENCES ARE DESIRED AT ANY POINT EN ROUTE TO YOUR HOME.

THIS INSTRUCTION WAS FOLLOWED BY TELEGRAM OF JULY 24, 1928, AS FOLLOWS:

JULY 24, 6 P.M. FOR BOYLE. YOU ARE INSTRUCTED TO PROCEED TO THE UNITED STATES UNDER SECTION FIFTEEN ROGER'S ACT AND DEPARTMENT'S INSTRUCTION OF JUNE ELEVENTH ARRANGING TO REACH LOS ANGELES IN TIME TO ATTEND PACIFIC FOREIGN TRADE CONFERENCE THERE, SEPTEMBER 18 TO 20. PERIOD. BE PREPARED TO ANSWER QUESTIONS REGARDING PRINCIPAL AMERICAN PRODUCTS WHICH ENTER INTO YOUR DISTRICT. STOP.

KELLOGG.

IN PURSUANCE OF THE ABOVE-QUOTED INSTRUCTIONS IT APPEARS THAT YOU LEFT YOUR POST AUGUST 28, 1928, AND ARRIVED IN LOS ANGELES SEPTEMBER 14, 1928. FROM SEPTEMBER 15 TO OCTOBER 11, 1928, INCLUSIVE, THE RECORDS SHOW THAT YOU WERE ENGAGED UPON TRADE CONFERENCE WORK WHILE EN ROUTE TO YOUR HOME IN WASHINGTON. ON NOVEMBER 24, 1928, YOU WERE ADVISED AS FOLLOWS BY THE SECRETARY OF STATE:

THE DEPARTMENT HAS RECEIVED YOUR DESPATCH OF OCTOBER 24, 1928, FILE NO. 123, REPORTING IN REGARD TO YOUR TRADE CONSULTATIONS IN THE UNITED STATES AFTER YOUR ARRIVAL IN THIS COUNTRY ON LEAVE OF ABSENCE.

YOU ARE INFORMED THAT THE DEPARTMENT CONSIDERS YOUR LEAVE OF ABSENCE WITH SALARY AS HAVING COMMENCED ON THE MORNING OF OCTOBER 12, 1928. IT WILL, THEREFORE, EXPIRE ON THE EVENING OF DECEMBER 10, 1928.

SECTION 1742, REVISED STATUTES, EXPRESSLY PROHIBITS THE PAYMENT OF SALARY TO A DIPLOMATIC OR CONSULAR OFFICER FOR TIME ABSENT FROM HIS POST ON LEAVE OR OTHERWISE IN EXCESS OF 60 DAYS IN ANY ONE YEAR, WITH AN ADDITIONAL ALLOWANCE, IN THE EVENT OF RETURN TO THE UNITED STATES ON LEAVE, EQUAL TO THE TIME USUALLY OCCUPIED IN GOING TO AND FROM THE UNITED STATES. THE PHRASE "IN GOING TO AND FROM THE UNITED STATES" HAS BEEN CONSTRUED TO MEAN THE TIME NECESSARY TO GO TO AND FROM THE OFFICER'S HOME IN THE UNITED STATES, AND IT HAS BEEN HELD THAT A FOREIGN SERVICE OFFICER IS NOT ENTITLED TO SALARY OR EXPENSES DURING THE PERIOD BETWEEN THE EXPIRATION OF AN AUTHORIZED LEAVE OF ABSENCE WITH PAY AND THE DATE ON WHICH IT IS NECESSARY FOR HIM TO DEPART FROM HIS HOME IN ORDER TO TAKE PASSAGE ON THE VESSEL BY WHICH HE IS TO PROCEED TO HIS POST, AND THAT HE MAY NOT BY GOING FROM HIS HOME TO THE PORT OF EMBARKATION AT AN EARLIER DATE THAN IS NECESSARY TO BOARD THE VESSEL PLACE UPON THE GOVERNMENT THE OBLIGATION TO BEAR HIS SALARY AND EXPENSES WHILE AWAITING SAILING OF THE VESSEL. COMP. GEN. 130.

YOUR 60-DAY LEAVE EXPIRED, ACCORDING TO THE ADMINISTRATIVE DETERMINATION BY THE SECRETARY OF STATE, ON DECEMBER 10, 1928, AND IT APPEARS YOU DEPARTED FROM WASHINGTON, WHERE SUCH LEAVE HAD BEEN SPENT, THE FOLLOWING DAY, PROCEEDING TO SAN FRANCISCO BY A CIRCUITOUS ROUTE, FROM WHICH PORT YOU SAILED FOR YOUR POST DECEMBER 26, 1928. HAD YOU TRAVELED BY DIRECT ROUTE BUT FIVE DAYS WOULD HAVE BEEN REQUIRED FOR THE JOURNEY, AND, ALLOWING IN ADDITION THE DAY PRECEDING YOUR EMBARKATION FOR MAKING THE NECESSARY ARRANGEMENTS FOR SAILING, IT APPEARS THAT THE PERIOD OF NINE DAYS, FROM DECEMBER 16 TO 24, WAS NEITHER ON AUTHORIZED LEAVE NOR NECESSARY TRANSIT TIME, AND THAT PAYMENT OF SALARY FOR SUCH PERIOD IS EXPRESSLY PROHIBITED BY SECTION 1742, REVISED STATUTES.

YOU ARGUE, HOWEVER, THAT THE PROHIBITION IN SECTION 1742, REVISED STATUTES, DOES NOT APPLY IN THIS CASE BECAUSE THE TRIP TO THE UNITED STATES WAS MADE PURSUANT TO SECTION 15 OF THE ACT OF MAY 24, 1924, 43 STAT. 143, WHICH PROVIDES:

SEC. 15. 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: PROVIDED FURTHER, THAT WHILE IN THE UNITED STATES THE SERVICES OF SUCH OFFICERS SHALL BE AVAILABLE FOR TRADE CONFERENCE WORK OR FOR SUCH DUTIES IN THE DEPARTMENT OF STATE AS THE SECRETARY OF STATE MAY PRESCRIBE.

PRIOR TO THE ENACTMENT OF THIS PROVISION FOREIGN SERVICE OFFICERS WERE REQUIRED TO PAY THEIR OWN EXPENSES AND THOSE OF THEIR FAMILIES IN RETURNING TO THE UNITED STATES ON LEAVE, AND IF ORDERED TO THE UNITED STATES ON TEMPORARY DUTY THE EXPENSES OF THE FAMILY WERE NOT PAYABLE BY THE GOVERNMENT. 8 COMP. GEN. 178. SUCH EXPENSES OF RETURNING HOME ON LEAVE WERE NO DOUBT EXCESSIVELY BURDENSOME TO MANY OFFICERS, STATIONED AT DISTANT POSTS, AND, APPARENTLY, FOR THIS REASON THE CONGRESS PROVIDED BY THE SAID ACT OF MAY 24, 1924, THAT UNDER CERTAIN CONDITIONS AN OFFICER MIGHT BE ORDERED HOME ON HIS STATUTORY LEAVE AND THAT HIS EXPENSES AND THOSE OF HIS IMMEDIATE FAMILY WOULD BE PAID BY THE UNITED STATES, WITH THE PROVISO, HOWEVER, THAT THE SERVICES OF THE OFFICER WHILE THUS IN THE UNITED STATES SHOULD BE AVAILABLE FOR TRADE CONFERENCE WORK OR SUCH DUTIES IN THE DEPARTMENT AS THE SECRETARY OF STATE MAY PRESCRIBE. THIS STATUTE IS PERMISSIVE IN CHARACTER, RELIEVING FOREIGN SERVICE OFFICERS UNDER CERTAIN CONDITIONS OF THE BURDEN OF PAYING THEIR OWN EXPENSES AND THOSE OF THEIR FAMILIES IN RETURNING TO THE UNITED STATES ON LEAVE, AND IN NO WAY MODIFIES OR REMOVES THE EXPRESS PROVISIONS OF SECTION 1742, REVISED STATUTES, PROHIBITING PAY FOR PERIODS OF ABSENCES BY A FOREIGN SERVICE OFFICER FROM HIS POST IN EXCESS OF 60 DAYS PLUS THE USUAL TIME REQUIRED IN COMING TO THE UNITED STATES AND RETURNING TO HIS POST. IN VIEW OF THE PROVISO REQUIRING THAT THE OFFICER'S SERVICES BE AVAILABLE FOR CERTAIN DUTY WHILE IN THE UNITED STATES WHEN ORDERED HERE ON STATUTORY LEAVE AT THE EXPENSE OF THE GOVERNMENT, IT MIGHT WELL BE QUESTIONED WHETHER THE STATUTE CONTEMPLATES THAT TIME IN ADDITION TO THE STATUTORY LEAVE SHOULD BE ALLOWED FOR THE PERFORMANCE OF SUCH DUTY, AS APPARENTLY WAS ALLOWED IN THIS INSTANCE BY THE SECRETARY OF STATE. BUT HOWEVER THAT MAY BE, IT IS CLEAR THAT THE STATUTE PERMITTING THE PAYMENT OF THE EXPENSES OF AN OFFICER AND HIS FAMILY IN COMING TO THE UNITED STATES ON LEAVE DOES NOT, CONTRARY TO SECTION 1742, REVISED STATUTES, PERMIT THE PAYMENT OF SALARY FOR TRANSIT TIME IN ADDITION TO THAT WHICH WOULD BE ALLOWABLE FOR AN OFFICER RETURNING TO HIS POST FROM LEAVE IN THE UNITED STATES AT HIS OWN EXPENSE.

ACCORDINGLY, IT APPEARS THE DISALLOWANCE OF CREDIT FOR SALARY FOR THE EXCESS TRANSIT TIME IN RETURNING TO YOUR POST WAS CORRECT, AND UPON REVIEW THE DISALLOWANCE MUST BE AND IS SUSTAINED. THE AMOUNT IN QUESTION SHOULD BE DEPOSITED OR CREDITED WITHOUT FURTHER DELAY.