A-96903, AUGUST 23, 1938, 18 COMP. GEN. 188

A-96903: Aug 23, 1938

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NOTWITHSTANDING THERE IS INVOLVED A CHANGE IN THE APPROPRIATION TO BE CHARGED WITH SALARY. IS AS FOLLOWS: UNDER THE AUTHORITY OF THE ACT OF JULY 31. IMPORTANT TELEPHONE CONSTRUCTION PROJECTS ARE ABOUT TO BE UNDERTAKEN IN THE NINTH CORPS AREA. ARE NECESSARY FOR PROPER CONDUCT OF THIS WORK. A SURVEY OF THE TECHNICAL QUALIFICATIONS OF THE ENGINEERING PERSONNEL UNDER THE JURISDICTION OF THE CHIEF SIGNAL OFFICER INDICATES THAT THE INTERESTS OF THE GOVERNMENT WILL BEST BE SERVED BY THE TRANSFER OF A TELEPHONE ENGINEER IN THE OFFICE OF THE CHIEF SIGNAL OFFICER. IS CONTEMPLATED. IS PAID FROM THE APPROPRIATION . HIS SALARY WILL BE PAID FROM APPROPRIATIONS AVAILABLE TO THE FIELD. THE SIGNAL CORPS IS RESPONSIBLE FOR AND FURNISHES ALL SIGNAL COMMUNICATION SERVICE TO THE ARMY.

A-96903, AUGUST 23, 1938, 18 COMP. GEN. 188

TRAVELING EXPENSES - CIVILIAN OFFICERS AND EMPLOYEES - TRANSFERS FROM DEPARTMENTAL TO FIELD SERVICE OR VICE VERSA TRANSFERS OF WAR DEPARTMENT EMPLOYEES FROM THE DEPARTMENTAL TO THE FIELD SERVICE OR VICE VERSA, IN SIMILAR POSITIONS, MAY BE MADE AT GOVERNMENT EXPENSE UNDER THE CIVILIAN TRAVEL-ON-TRANSFER STATUTES, NOTWITHSTANDING THERE IS INVOLVED A CHANGE IN THE APPROPRIATION TO BE CHARGED WITH SALARY, ETC., AFTER THE TRANSFER, IF OTHERWISE WITHIN THE RULE IN 17 COMP. GEN. 874, 17 COMP. GEN. 874, AS MODIFIED BY 17 COMP. GEN. 1117, AMPLIFIED, AND PRIOR DECISIONS MAKING A DISTINCTION BETWEEN TRANSFERS FROM THE DEPARTMENTAL TO FIELD SERVICE AND VICE VERSA, AND OTHER TRANSFERS, MODIFIED TO THE EXTENT OF ELIMINATING THE SAID DISTINCTION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, AUGUST 23, 1938:

YOUR LETTER OF AUGUST 2, 1938, IS AS FOLLOWS:

UNDER THE AUTHORITY OF THE ACT OF JULY 31, 1894 (28 STAT. 208), I REQUEST YOUR ADVANCE DECISION UPON A QUESTION NOW BEFORE ME FOR ACTION.

IMPORTANT TELEPHONE CONSTRUCTION PROJECTS ARE ABOUT TO BE UNDERTAKEN IN THE NINTH CORPS AREA. THESE PROJECTS INVOLVE AN EXPENDITURE OF APPROXIMATELY $200,000.00. THE SERVICES OF A COMPETENT ENGINEER, WELL VERSED IN THE PECULIARITIES OF FIRE CONTROL INSTALLATIONS AND MAINTENANCE, ARE NECESSARY FOR PROPER CONDUCT OF THIS WORK.

A SURVEY OF THE TECHNICAL QUALIFICATIONS OF THE ENGINEERING PERSONNEL UNDER THE JURISDICTION OF THE CHIEF SIGNAL OFFICER INDICATES THAT THE INTERESTS OF THE GOVERNMENT WILL BEST BE SERVED BY THE TRANSFER OF A TELEPHONE ENGINEER IN THE OFFICE OF THE CHIEF SIGNAL OFFICER, WASHINGTON, D.C., TO THE NINTH CORPS AREA, SAN FRANCISCO, CALIF., TO FILL A VACANCY IN A SIMILAR POSITION IN THAT OFFICE; AND BY THE TRANSFER OF AN ENGINEER FROM THE SIGNAL OFFICE, SEVENTH CORPS AREA, OMAHA, NEBRASKA, TO THE OFFICE OF THE CHIEF SIGNAL OFFICER, WASHINGTON, D.C., AS A REPLACEMENT FOR THE EMPLOYEE TRANSFERRED TO THE NINTH CORPS AREA.

THE EMPLOYEE, WHOSE TRANSFER FROM THE OFFICE OF THE CHIEF SIGNAL OFFICER, WASHINGTON, D.C., TO THE NINTH CORPS AREA, SAN FRANCISCO, CALIF., IS CONTEMPLATED, IS PAID FROM THE APPROPRIATION ,SALARIES, WAR DEPARTMENT, OFFICE OF THE CHIEF SIGNAL OFFICER.' IF TRANSFERRED TO THE NINTH CORPS AREA, HIS SALARY WILL BE PAID FROM APPROPRIATIONS AVAILABLE TO THE FIELD.

THE SIGNAL CORPS IS RESPONSIBLE FOR AND FURNISHES ALL SIGNAL COMMUNICATION SERVICE TO THE ARMY. IN MEETING THIS RESPONSIBILITY IT IS NECESSARY TO TRANSFER MEMBERS OF ITS LIMITED TECHNICAL STAFF POSSESSING SPECIAL QUALIFICATIONS FROM ONE STATION TO ANOTHER, AS THE NEED FOR THEIR SPECIAL QUALIFICATIONS ARISES. THIS MAY REQUIRE THE TRANSFER OF A DEPARTMENTAL ENGINEER TO A FIELD POSITION OR VICE VERSA.

IT IS BELIEVED THAT THE PROVISIONS OF TITLE II, SECTION 2, OF THE ACT APPROVED DECEMBER 20, 1928 (45 STAT. 1055), AND SUBSEQUENT SIMILAR LEGISLATION, APPLY AND THAT PAYMENT OF TRANSPORTATION COSTS INCIDENT TO THE TRANSFER OF THE PERSONNEL HEREIN DISCUSSED FROM GOVERNMENT FUNDS IS NOT RESTRICTED BY DECISIONS A-93206, DATED APRIL 28, 1938, (17 COMP.GEN. 874), A-95366, DATED JUNE 24, 1938, AND A-95599, DATED JUNE 28, 1938. THIS VIEW IS PREDICATED ON THE BELIEF THAT IT WAS NOT THE INTENT OF CONGRESS TO LIMIT THE ADMINISTRATIVE OFFICER CONCERNED IN THE ASSIGNMENT OF HIS PERSONNEL OR TO PENALIZE EMPLOYEES BY REQUIRING THEM TO BEAR THE EXPENSE OF TRAVEL INCIDENT TO CHANGE OF STATION DETERMINED BY COMPETENT AUTHORITY TO BE FOR THE BEST INTERESTS OF THE GOVERNMENT.

SECTION 2 OF THE TREASURY-POST OFFICE DEPARTMENT APPROPRIATION ACT FOR THE FISCAL YEAR 1939, APPROVED MARCH 28, 1938, PUBLIC, NO. 453, IDENTICAL IN TERMS WITH SECTION 2 OF THE ACT OF DECEMBER 20, 1928, 45 STAT. 1055, CITED BY YOU, PROVIDES AS FOLLOWS:

APPROPRIATIONS FOR THE FISCAL YEAR 1939 AVAILABLE FOR EXPENSES OF TRAVEL OF CIVILIAN OFFICERS AND EMPLOYEES OF THE EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS SHALL BE AVAILABLE ALSO FOR EXPENSES OF TRAVEL PERFORMED BY THEM ON TRANSFER FROM ONE OFFICIAL STATION TO ANOTHER WHEN AUTHORIZED BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED IN THE ORDER DIRECTING SUCH TRANSFER: PROVIDED, THAT SUCH EXPENSES SHALL NOT BE ALLOWED FOR ANY TRANSFER EFFECTED FOR THE CONVENIENCE OF ANY OFFICER OR EMPLOYEE.

PRIOR TO THE ENACTMENT OF THE FIRST ANNUAL STATUTORY PROVISION OF THIS CHARACTER, ACT OF DECEMBER 22, 1927, 45 STAT. 50, THIS OFFICE HAD HELD IN DECISION OF DECEMBER 2, 1926, 6 COMP. GEN. 377, AS FOLLOWS (QUOTING FROM THE SYLLABUS):

WHERE A CIVILIAN EMPLOYEE HAS BEEN APPOINTED FOR DUTY AT A PARTICULAR PLACE, OR WITHIN A PARTICULAR DISTRICT, THE TRANSFER OF THAT EMPLOYEE FOR PERMANENT DUTY AT ANOTHER PLACE, OR ANOTHER DISTRICT, CONSTITUTES IN FACT A DISCHARGE AND REAPPOINTMENT AND REQUIRES THE EMPLOYEE TO PLACE HIMSELF AT HIS NEW DUTY STATION AT HIS OWN EXPENSE.

WHERE THE DUTIES OF A CIVILIAN EMPLOYEE ARE SUCH AS TO REQUIRE APPOINTMENT TO THE FIELD SERVICE GENERALLY WITHOUT ANY FIXED HEADQUARTERS THE TRANSFER OF SUCH EMPLOYEE FROM PLACE TO PLACE MAY BE ACCOMPLISHED AT THE EXPENSE OF THE GOVERNMENT WHEN DUE TO THE NECESSITIES OF THE SERVICE AND NOT THE PERSONAL DESIRES OF THE EMPLOYEE.

IN DECISION OF NOVEMBER 16, 1937, A-89873, IN REGARD TO THE APPLICATION OF THE ANNUAL TRAVEL-ON-TRANSFER PROVISION FOR THE FISCAL YEAR 1938 AND A PROVISION AUTHORIZING TRANSPORTATION OF THE PERSONAL EFFECTS OF EMPLOYEES OF THE NATIONAL PARK SERVICE UPON PERMANENT CHANGE OF STATION, IT WAS STATED:

THE TWO STATUTES CITED IN YOUR SUBMISSION ARE APPLICABLE ONLY IF THERE IF INVOLVED A "PERMANENT CHANGE OF STATION" OR A "TRANSFER FROM ONE OFFICIAL STATION TO ANOTHER" WITHOUT ANY CHANGE IN THE OFFICIAL POSITION OF THE EMPLOYEE. WHEN THERE IS INVOLVED AN APPOINTMENT TO AN ENTIRELY DIFFERENT POSITION THE BENEFITS OF THOSE STATUTES ARE NOT APPLICABLE. 14 COMP. GEN. 871; 16 ID. 732.

IN DECISION OF APRIL 28, 1938, 17 COMP. GEN. 874, INVOLVING TRANSFERS FROM ONE FIELD STATION TO ANOTHER, IT WAS HELD:

IF A CHANGE IN OFFICIAL STATION OF AN OFFICER OR EMPLOYEE--- DIRECTED FOR THE BENEFIT OF THE GOVERNMENT--- INVOLVES NO BREAK IN SERVICE, NO TERMINATION OF EMPLOYMENT BY OPERATION OF LAW, NO CHANGE IN THE APPROPRIATION TO BE CHARGED WITH THE SALARY AND TRAVELING EXPENSE OF THE OFFICER OR EMPLOYEE, AND NO CHANGE IN THE DEPARTMENT OR ESTABLISHMENT UNDER WHICH THE SERVICE IS TO BE PERFORMED, SUCH CHANGE IN STATION MAY BE REGARDED AS A "TRANSFER" WITHIN THE MEANING OF THE STATUTE, REGARDLESS OF WHETHER, IN CONNECTION WITH SUCH TRANSFER, THERE IS INVOLVED A CHANGE IN TITLE OF THE POSITION OR IN THE GRADE OR SALARY RATE OF THE OFFICER OR EMPLOYEE. OF COURSE, REIMBURSEMENT OF TRAVEL EXPENSES INCIDENT TO SUCH TRANSFERS IS NOT AUTHORIZED EXCEPT IN ACCORDANCE WITH THE PROVISIONS AND SUBJECT TO THE CONDITIONS PRESCRIBED IN THE STATUTE.

IN DECISION OF JUNE 24, 1938, 17 COMP. GEN. 1108, 1109, WITH REFERENCE TO A DECISION OF APRIL 28, 1938, SUPRA, IT WAS STATED:

A TRANSFER OR REAPPOINTMENT FROM THE DEPARTMENTAL TO THE FIELD SERVICE, OR VICE VERSA, MAY NOT IN ANY EVENT MEET THE REQUIREMENTS STATED IN THE CITED DECISION TO CONSTITUTE IT A "TRANSFER FROM ONE OFFICIAL STATION TO ANOTHER" FOR THE REASON THAT THE SALARY APPROPRIATIONS FOR THE DEPARTMENTAL AND FIELD SERVICES HAVE ALWAYS BEEN REQUIRED TO BE EXPENDED AND ACCOUNTED FOR AS SEPARATE AND DISTINCT ENTITIES, EVEN THOUGH THE EMPLOYEES MAY BE ENGAGED ON SIMILAR DUTIES. * *

HOWEVER, IN DECISION TO YOU OF JUNE 28, 1938, A-95599, 17 COMP. GEN. 1117, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

A CHANGE OF STATION IN THE FIELD SERVICE OF THE WAR DEPARTMENT, UNDER THE SAME BUREAU AND INVOLVING PAYMENT OF COMPENSATION FROM DIFFERENT APPROPRIATIONS UNDER CONTROL OF THE SAME BUREAU, WHEN MADE IN THE INTEREST OF THE GOVERNMENT, AND NOT FOR THE PERSONAL CONVENIENCE OF THE EMPLOYEE, MAY BE CONSIDERED A TRANSFER WITHIN THE MEANING OF THE ANNUAL STATUTORY PROVISION AUTHORIZING PAYMENT OF TRAVELING EXPENSES OF EMPLOYEES "ON TRANSFER FROM ONE OFFICIAL STATION TO ANOTHER.' 17 COMP. GEN. 874, AMPLIFIED.

IT WILL BE NOTED THAT WHILE THIS DECISION OF JUNE 28, 1938, HELD THAT A CHANGE IN STATION COULD BE REGARDED AS A TRANSFER FOR TRAVEL PURPOSES EVEN THOUGH IT INVOLVED A CHANGE IN APPROPRIATION FROM WHICH THE SALARY WOULD BE PAID--- THUS IN EFFECT MODIFYING THE RULE STATED IN 17 COMP. GEN. 874, AND APPLIED IN 17 COMP. GEN. 1108--- IT HELD THAT THE RULE AS SO MODIFIED WAS NOT APPLICABLE TO TRANSFERS FROM THE DEPARTMENTAL SERVICE TO THE FIELD SERVICE AND VICE VERSA. I NOW FIND THAT THE LAW DOES NOT REQUIRE A DISTINCTION IN THIS RESPECT BETWEEN THE TWO CLASSES OF TRANSFERS, AND THE DECISIONS IN WHICH SUCH A DISTINCTION WAS MADE ARE HEREBY MODIFIED TO THE EXTENT OF ELIMINATING SUCH DISTINCTION; AND SINCE THE TRANSFERS OR CHANGES REFERRED TO IN YOUR LETTER, SUPRA, APPEAR TO COME OTHERWISE WITHIN THE RULE STATED IN 17 COMP. GEN. 874, AS HERETOFORE AMPLIFIED, SUCH TRANSFERS MAY BE REGARDED AS TRANSFERS "FROM ONE OFFICIAL STATION TO ANOTHER" WITHIN THE PURVIEW OF THE STATUTORY PROVISION HEREINBEFORE QUOTED RELATIVE TO TRAVEL EXPENSES.