A-42449, MAY 26, 1932, 11 COMP. GEN. 453

A-42449: May 26, 1932

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AS THE TRANSPORTATION OF DEPENDENTS OF FOREIGN SERVICE OFFICERS IS LIMITED BY THE APPROPRIATIONS THEREFOR TO THAT REQUIRED WHEN GOING TO AND RETURNING FROM POSTS OF DUTY. ANY EXTRA EXPENSE INCURRED BY SUCH DEPENDENTS WHEN ACCOMPANYING AN OFFICER UPON AN INDIRECT ROUTE DUE TO HIS DETAIL TO TEMPORARY DUTY EN ROUTE IS NOT CHARGEABLE TO APPROPRIATED FUNDS. IS ENTITLED TO HIS SALARY AND EXPENSES FOR TRAVEL AND SUBSISTENCE AT THE RATES PRESCRIBED BY LAW FOR THE ADDITIONAL TIME AND BY THE INDIRECT ROUTE NECESSITATED IN COMPLYING WITH HIS INSTRUCTIONS. REFERENCE IS MADE TO SECTION 1740. FOR SUCH TIME AS IS ACTUALLY AND NECESSARILY OCCUPIED IN RECEIVING HIS INSTRUCTIONS. NO PERSON SHALL BE DEEMED TO HOLD ANY SUCH OFFICE AFTER HIS SUCCESSOR IS APPOINTED AND ACTUALLY ENTERS UPON THE DUTIES OF HIS OFFICE AT HIS POST OF DUTY.

A-42449, MAY 26, 1932, 11 COMP. GEN. 453

FOREIGN SERVICE OFFICERS - COMPENSATION - DETAILS - TRANSPORTATION OF DEPENDENTS OVER INDIRECT ROUTE IN VIEW OF THE MODIFICATION OF SECTION 1740, REVISED STATUTES, BY SECTION 21 OF THE ACT OF FEBRUARY 23, 1931, 46 STAT. 1209, A FOREIGN SERVICE OFFICER MAY BE DETAILED TO PERFORM TEMPORARY DUTY WHILE EN ROUTE TO OR FROM OR BETWEEN POSTS OF DUTY AND RECEIVE HIS SALARY AND EXPENSES OF TRAVEL AND SUBSISTENCE OVER THE INDIRECT ROUTE RENDERED NECESSARY THEREBY. AS THE TRANSPORTATION OF DEPENDENTS OF FOREIGN SERVICE OFFICERS IS LIMITED BY THE APPROPRIATIONS THEREFOR TO THAT REQUIRED WHEN GOING TO AND RETURNING FROM POSTS OF DUTY, ANY EXTRA EXPENSE INCURRED BY SUCH DEPENDENTS WHEN ACCOMPANYING AN OFFICER UPON AN INDIRECT ROUTE DUE TO HIS DETAIL TO TEMPORARY DUTY EN ROUTE IS NOT CHARGEABLE TO APPROPRIATED FUNDS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, MAY 26, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 14, 1932, AS FOLLOWS:

I PRESENT FOR YOUR DECISION THE QUESTION WHETHER AN AMBASSADOR OR MINISTER INSTRUCTED BY THE DEPARTMENT OF STATE TO PROCEED BY OTHER THAN THE MOST DIRECT ROUTE IN GOING TO OR RETURNING FROM HIS MISSION, OR IN TRANSFERRING FROM ONE MISSION TO ANOTHER, IN ORDER TO CONSULT AND ADVISE WITH OTHER DIPLOMATIC OFFICERS OR OTHER OFFICERS OF THE GOVERNMENT, AT INTERNATIONAL CONFERENCES, OR OTHERWISE, IS ENTITLED TO HIS SALARY AND EXPENSES FOR TRAVEL AND SUBSISTENCE AT THE RATES PRESCRIBED BY LAW FOR THE ADDITIONAL TIME AND BY THE INDIRECT ROUTE NECESSITATED IN COMPLYING WITH HIS INSTRUCTIONS.

IN THIS CONNECTION, REFERENCE IS MADE TO SECTION 1740, REVISED STATUTES (U.S. CODE, TITLE 22, SEC. 121), WHICH PROVIDES:

"NO AMBASSADOR, ENVOY EXTRAORDINARY, MINISTER PLENIPOTENTIARY, MINISTER RESIDENT, COMMISSIONER, CHARGE D-AFFAIRES, SECRETARY OF LEGATION, ASSISTANT SECRETARY OF LEGATION, INTERPRETER TO ANY LEGATION OR CONSULATE, OR CONSUL GENERAL, CONSUL, OR VICE CONSUL SHALL BE ENTITLED TO COMPENSATION FOR HIS SERVICES, EXCEPT FROM THE TIME WHEN HE REACHES HIS POST AND ENTERS UPON HIS OFFICIAL DUTIES TO THE TIME WHEN HE CEASES TO HOLD SUCH OFFICE, AND FOR SUCH TIME AS IS ACTUALLY AND NECESSARILY OCCUPIED IN RECEIVING HIS INSTRUCTIONS, NOT TO EXCEED THIRTY DAYS, AND IN MAKING THE DIRECT TRANSIT BETWEEN THE PLACE OF HIS RESIDENCE, WHEN APPOINTED, AND HIS POST OF DUTY, AT THE COMMENCEMENT AND TERMINATION OF THE PERIOD OF HIS OFFICIAL SERVICE, FOR WHICH HE SHALL IN ALL CASES BE ALLOWED AND PAID, EXCEPT AS HEREINAFTER MENTIONED. AND NO PERSON SHALL BE DEEMED TO HOLD ANY SUCH OFFICE AFTER HIS SUCCESSOR IS APPOINTED AND ACTUALLY ENTERS UPON THE DUTIES OF HIS OFFICE AT HIS POST OF DUTY, NOR AFTER HIS OFFICIAL RESIDENCE AT SUCH POST HAS TERMINATED IF NOT SO RELIEVED. BUT NO SUCH OFFICER AS IS REFERRED TO IN THIS SECTION SHALL BE ALLOWED COMPENSATION FOR THE TIME SO OCCUPIED IN SUCH TRANSIT, AT THE TERMINATION OF THE PERIOD OF HIS OFFICIAL SERVICES, IF HE HAS RESIGNED OR BEEN RECALLED THEREFROM FOR ANY MALFEASANCE IN HIS OFFICE.'

SECTION 21 OF THE ACT APPROVED FEBRUARY 23, 1931 (U.S. CODE, SUPP. V, TITLE 22, SEC. 16) PROVIDES, HOWEVER, THAT---

" * * * ANY AMBASSADOR OR MINISTER OR ANY FOREIGN SERVICE OFFICER OF WHATEVER CLASS DETAILED FOR DUTY IN CONNECTION WITH TRADE CONFERENCES OR INTERNATIONAL GATHERINGS, CONGRESSES, OR CONFERENCES, OR FOR OTHER SPECIAL DUTY NOT AT HIS POST OR IN THE DEPARTMENT OF STATE, EXCEPT TEMPORARILY FOR PURPOSES OF CONSULTATION, SHALL BE PAID HIS SALARY AND EXPENSES FOR TRAVEL AND SUBSISTENCE AT THE RATES PRESCRIBED BY LAW.'

IT IS AT TIMES FOUND DESIRABLE BY THE DEPARTMENT THAT AN AMBASSADOR OR MINISTER PROCEEDING TO HIS MISSION SHOULD PROCEED BY AN INDIRECT ROUTE FOR THE PURPOSE OF ATTENDING AN INTERNATIONAL GATHERING, CONGRESS, OR CONFERENCE, OR FOR SPECIAL DUTY IN CONSULTATION WITH THE HEAD OF MISSION OR OTHER OFFICERS OF GOVERNMENT AT FOREIGN CAPITALS OR OTHER CITIES. NOT INFREQUENTLY HAPPENS THAT THERE ARE IMPORTANT NEGOTIATIONS PENDING, IN CONNECTION WITH WHICH A NEWLY APPOINTED AMBASSADOR OR MINISTER MAY RECEIVE VALUABLE INFORMATION AND ASSISTANCE FROM OTHER OFFICIALS OF THE GOVERNMENT OF THE UNITED STATES IF HE IS AUTHORIZED TO CONSULT WITH THEM EN ROUTE TO HIS POST; AND ON OCCASION IT IS EQUALLY IMPORTANT THAT AN AMBASSADOR OR MINISTER RETIRING FROM HIS MISSION, OR TRANSFERRING TO A NEW MISSION, SHOULD CONSULT WITH OTHER OFFICIALS OF THE GOVERNMENT OF THE UNITED STATES AT OTHER FOREIGN CAPITALS OR CITIES, IN THE INTERESTS OF THE UNITED STATES.

THERE CAN BE NO DOUBT AS TO THE AUTHORITY TO INSTRUCT AN AMBASSADOR OR MINISTER ON DUTY AT HIS POST TO PROCEED ON SPECIAL DUTY TO SOME OTHER PLACE FOR THE PURPOSE OF ATTENDING ANY CONGRESS, CONFERENCE, OR INTERNATIONAL GATHERING OR FOR OTHER SPECIAL DUTY IN CONSULTATION WITH OFFICERS OF THE GOVERNMENT OR OTHERS; AND IN SUCH CASES THE AMBASSADOR OR MINISTER IS ENTITLED TO HIS SALARY AND EXPENSES FOR TRAVEL AND SUBSISTENCE AT THE RATES PRESCRIBED BY LAW.

THE ONLY QUESTION IS AS TO CASES WHERE THE AMBASSADOR OR MINISTER IS PROCEEDING TO OR RETURNING FROM HIS MISSION, OR TRANSFERRING TO ANOTHER MISSION. THE QUESTION HERE ARISES BECAUSE OF UNCERTAINTY AS TO WHETHER THE PROVISIONS OF SECTION 1740, REVISED STATUTES, REMAIN IN FORCE AND EFFECT.

IT IS THE OPINION OF THIS DEPARTMENT THAT THE EFFECT OF SECTION 21 OF THE ACT OF FEBRUARY 23, 1921, IS TO OVERCOME ANY RESTRICTIONS IMPOSED BY SECTION 1740, REVISED STATUTES; AND THIS, INDEED, WOULD SEEM TO BE THE REASONABLE AND DESIRABLE INTERPRETATION IN THE BEST INTERESTS OF THE GOVERNMENT, SINCE IT WOULD USUALLY PROVE MORE ECONOMICAL TO INSTRUCT THE AMBASSADOR OR MINISTER TO VISIT FOREIGN CAPITALS EN ROUTE TO HIS MISSION THAN TO DIRECT HIM FIRST TO TAKE UP HIS MISSION AND THEN PROCEED TO OTHER PLACES FOR CONFERENCES OR CONSULTATION. THE PROCEDURE WOULD ALSO IN MOST CASES BE MORE DESIRABLE AND BENEFICIAL TO THE GOVERNMENT FOR OTHER REASONS THAN THAT OF ECONOMY OF EXPENDITURE; LIKEWISE IN THE CASE OF AN AMBASSADOR OR MINISTER PROPOSING TO RETIRE, OR TO BE TRANSFERRED TO ANOTHER MISSION. IT WOULD, OF COURSE, BE POSSIBLE UNDER THE STATUTE THAT SUCH AMBASSADOR OR MINISTER BE INSTRUCTED TO PROCEED TO OTHER COUNTRIES FOR CONSULTATION, AND THEN RETURN TO HIS MISSION BEFORE PROCEEDING ON TRANSIT TO THE UNITED STATES. BUT IF THE AMBASSADOR OR MINISTER MIGHT BE ORDERED TO SUCH SPECIAL DUTY WHILE IN TRANSIT, AND RECEIVE HIS SALARY AND EXPENSES FOR TRAVEL AND SUBSISTENCE BY THE INDIRECT ROUTE AND FOR THE ADDITIONAL TIME INVOLVED, IT WOULD BE MORE ECONOMICAL, AND USUALLY MORE DESIRABLE AND BENEFICIAL FROM THE STANDPOINT OF THE INTERESTS OF THE GOVERNMENT.

IF YOU DECIDE THAT AN AMBASSADOR OR MINISTER INSTRUCTED BY THE DEPARTMENT OF STATE TO PROCEED FOR PURPOSES OF OFFICIAL BUSINESS BY OTHER THAN THE MOST DIRECT ROUTE IN GOING TO OR RETURNING FROM HIS MISSION OR IN TRANSFERRING FROM ONE MISSION TO ANOTHER, IS ENTITLED TO HIS SALARY AND EXPENSES FOR TRAVEL AND SUBSISTENCE AT THE RATES PRESCRIBED BY LAW FOR THE ADDITIONAL TIME AND BY THE INDIRECT ROUTE NECESSITATED IN COMPLIANCE WITH HIS INSTRUCTIONS, I REQUEST YOU FURTHER TO DECIDE WHETHER IN SUCH CASES WHERE THE FAMILY OF THE AMBASSADOR OR MINISTER ACCOMPANIES HIM, THE ADDITIONAL TRANSPORTATION AND SUBSISTENCE EXPENSES NECESSARILY INCURRED BY THE FAMILY MAY BE PAID BY THE GOVERNMENT WITHIN THE LIMITS OF THE REGULATIONS. IN THIS CONNECTION, IT MAY BE STATED THAT THE ARRIVAL OF THE FAMILY OF AN AMBASSADOR OR MINISTER AT THE POST OF HIS FOREIGN MISSION IN ADVANCE OF THE ARRIVAL OF THE AMBASSADOR OR MINISTER, MIGHT AT TIMES BE UNFORTUNATE AND EMBARRASSING.

SECTION 21 OF THE ACT OF FEBRUARY 23, 1931, 46 STAT. 1209, SPECIFICALLY AUTHORIZES THE PAYMENT OF COMPENSATION AND EXPENSES OF TRAVEL AND SUBSISTENCE OF ANY AMBASSADOR OR MINISTER OR FOREIGN SERVICE OFFICER WHEN DETAILED FOR DUTY IN CONNECTION WITH TRADE CONFERENCES, GATHERINGS, CONGRESSES, OR CONFERENCES, OR OTHER SPECIAL DUTY NOT AT HIS POST OR IN THE DEPARTMENT OF STATE. I FIND NOTHING IN THAT SECTION WHICH WOULD REQUIRE THAT SUCH DETAILS BY MADE ONLY AFTER THE OFFICER HAS REACHED HIS POST, AND, ACCORDINGLY, THERE WOULD APPEAR TO BE NO OBJECTION TO AUTHORIZING THE PERFORMANCE OF SUCH DETAIL BY AN OFFICER WHILE EN ROUTE TO OR FROM HIS POST OR IN TRANSIT BETWEEN POSTS AND THE PAYMENT OF HIS SALARY WHILE THUS ENGAGED. I HAVE TO ADVISE, THEREFORE, THAT TO THE EXTENT THAT SECTION 1740, REVISED STATUTES, IS INCONSISTENT WITH THE PROVISIONS OF SECTION 21 OF THE ACT OF FEBRUARY 23, 1931, IT MAY BE CONSIDERED AS REPEALED OR MODIFIED.

WITH RESPECT TO THE FAMILY OF AN OFFICER ACCOMPANYING HIM TO THE INDIRECT ROUTE NECESSARY BY SUCH TEMPORARY DETAIL, IT MAY BE STATED THAT THE APPROPRIATION FOR THE TRANSPORTATION OF FAMILIES AND EFFECTS OF FOREIGN SERVICE OFFICERS, ACT OF FEBRUARY 23, 1931, 46 STAT. 1313,PROVIDES ONLY FOR THE PAYMENT OF SUCH EXPENSES "IN GOING TO AND RETURNING FROM THEIR POSTS, INCLUDING NOT TO EXCEED $110,000 INCURRED IN CONNECTION WITH LEAVES OF ABSENCE.' SUCH BEING THE CASE, SHOULD THE FAMILY OF THE OFFICER ACCOMPANY HIM ON SUCH TEMPORARY DETAIL, THE ADDITIONAL TRANSPORTATION AND SUBSISTENCE EXPENSES SO INCURRED BY THE FAMILY WOULD NOT BE CHARGEABLE TO APPROPRIATED FUNDS. 8 COMP. GEN. 178.