B-107714, MAY 9, 1952, 31 COMP. GEN. 588

B-107714: May 9, 1952

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PROVIDED HE WOULD HAVE BEEN ENTITLED THERETO AT THE TIME OF HIS RETURN HAD HE CONTINUED IN THE AGENCY IN WHICH ORIGINALLY EMPLOYED. THE APPROPRIATION OF THE AGENCY IN WHICH THE EMPLOYEE IS EMPLOYED AT THE TIME OF HIS RETURN TO THE CONTINENTAL UNITED STATES IS THE ONLY APPROPRIATION AVAILABLE FOR THE COST OF HIS RETURN TRAVEL AND TRANSPORTATION. IF THE EMPLOYEE IS SEPARATED PRIOR TO THE COMPLETION OF HIS CONTRACT OF EMPLOYMENT. THE AGENCY IN WHICH THE EMPLOYEE CURRENTLY IS EMPLOYED SHOULD DETERMINE WHETHER THE SEPARATION IS FOR ACCEPTABLE REASONS AND BEYOND THE CONTROL OF THE EMPLOYEE. IN DRAWING UP AGREEMENTS FOR EMPLOYMENT OVERSEAS IT IS WITHIN THE DISCRETION OF THE HIRING DEPARTMENT OR AGENCY TO REQUIRE.

B-107714, MAY 9, 1952, 31 COMP. GEN. 588

TRAVELING EXPENSES - EMPLOYEES APPOINTED OR ASSIGNED TO DUTY OVERSEAS - TRANSFERS - RETURN TO U.S. UNDER THE PROVISIONS OF SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, AUTHORIZING REIMBURSEMENT OF EXPENSES OF TRAVEL AND TRANSPORTATION OF NEW APPOINTEES TO PLACES OF EMPLOYMENT OUTSIDE THE CONTINENTAL UNITED STATES AND RETURN, AN EMPLOYEE WHO TRANSFERS TO ANOTHER AGENCY OVERSEAS WITHOUT ENTERING INTO A NEW AGREEMENT TO SERVE AN ADDITIONAL PERIOD OF TIME, WOULD BE ENTITLED TO THE EXPENSES OF TRAVEL AND TRANSPORTATION TO AND FROM HIS POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES, PROVIDED HE WOULD HAVE BEEN ENTITLED THERETO AT THE TIME OF HIS RETURN HAD HE CONTINUED IN THE AGENCY IN WHICH ORIGINALLY EMPLOYED. UNDER THE PROVISIONS OF SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, THE APPROPRIATION OF THE AGENCY IN WHICH THE EMPLOYEE IS EMPLOYED AT THE TIME OF HIS RETURN TO THE CONTINENTAL UNITED STATES IS THE ONLY APPROPRIATION AVAILABLE FOR THE COST OF HIS RETURN TRAVEL AND TRANSPORTATION, AND IF THE EMPLOYEE IS SEPARATED PRIOR TO THE COMPLETION OF HIS CONTRACT OF EMPLOYMENT, THE AGENCY IN WHICH THE EMPLOYEE CURRENTLY IS EMPLOYED SHOULD DETERMINE WHETHER THE SEPARATION IS FOR ACCEPTABLE REASONS AND BEYOND THE CONTROL OF THE EMPLOYEE. IN DRAWING UP AGREEMENTS FOR EMPLOYMENT OVERSEAS IT IS WITHIN THE DISCRETION OF THE HIRING DEPARTMENT OR AGENCY TO REQUIRE, BY THE EXPRESS TERMS OF ITS AGREEMENT WITH THE EMPLOYEE, THAT THERE BE A PERIOD OF NOT LESS THAN ONE NOR MORE THAN THREE YEARS OF SERVICE WITH THAT DEPARTMENT OR AGENCY OR AN ORGANIZATIONAL UNIT THEREOF UNLESS SEPARATION IS FOR REASONS BEYOND THE CONTROL OF THE INDIVIDUAL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, FEDERAL SECURITY AGENCY, MAY 9, 1952:

REFERENCE IS MADE TO LETTER DATED JANUARY 9, 1952, FROM THE ACTING ADMINISTRATOR, REQUESTING A DECISION ON FOUR QUESTIONS AS TO THE PROPRIETY OF THE PAYMENT OF EXPENSES OF TRAVEL AND TRANSPORTATION UNDER SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, PUBLIC LAW 600, 60 STAT. 806, AS AMENDED BY THE ACT OF SEPTEMBER 23, 1950, 64 STAT. 985, PUBLIC LAW 830, INCIDENT TO THE RETURN OF EMPLOYEES WHO HAVE BEEN ASSIGNED TO DUTY OUTSIDE THE CONTINENTAL UNITED STATES AND WHO ARE TRANSFERRED BETWEEN FEDERAL AGENCIES AFTER SUCH ASSIGNMENT.

THE SPECIFIC QUESTIONS ARE AS FOLLOWS:

"1. THE EMPLOYEE SIGNS AN AGREEMENT (SAMPLE COPY ATTACHED) TO REMAIN "IN THE GOVERNMENT SERVICE FOR A PERIOD OF TWELVE MONTHS" UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED. IS HE ENTITLED TO THE EXPENSES BOTH GOING AND RETURNING, IF, AFTER HIS INITIAL ASSIGNMENT, HE TRANSFERS BETWEEN FEDERAL AGENCIES, PROVIDED HIS COMBINED PERIOD OF SERVICE IN BOTH AGENCIES IS AT LEAST TWELVE MONTHS OR THAT HE IS SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED?

"2. IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, WHICH AGENCY MUST PAY THE COST OF RETURN (A) IF THE REQUIRED PERIOD OF SERVICE IS COMPLETED BEFORE TRANSFER BETWEEN AGENCIES (B) IF THE REQUIRED PERIOD OF SERVICE IS NOT COMPLETED UNTIL AFTER SUCH TRANSFER?

"3. IF THE EMPLOYEE SEPARATES FROM THE FEDERAL SERVICE AFTER HIS TRANSFER BETWEEN AGENCIES, BUT BEFORE EXPIRATION OF THE TWELVE MONTHS PERIOD OF SERVICE AS ORIGINALLY AGREED UPON, WHICH AGENCY MAKES THE DETERMINATION WHETHER SUCH SEPARATION IS FOR ACCEPTABLE REASONS AND BEYOND THE EMPLOYEE'S CONTROL?

"4. IS IT WITHIN THE DISCRETION OF A DEPARTMENT OR AGENCY TO REQUIRE, BY THE EXPRESS TERMS OF ITS AGREEMENT WITH THE EMPLOYEE, THAT THERE BE A PERIOD OF NOT LESS THAN ONE NOR MORE THAN THREE YEARS OF SERVICE WITH THAT DEPARTMENT OR AGENCY OR AN ORGANIZATIONAL UNIT THEREOF, UNLESS SEPARATION IS FOR REASONS BEYOND THE CONTROL OF THE INDIVIDUAL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED?

SECTION 7, PUBLIC LAW 600, AS AMENDED, AUTHORIZES REIMBURSEMENT OF THE EXPENSES OF TRAVEL AND TRANSPORTATION OF NEW APPOINTEES TO PLACES OF EMPLOYMENT OUTSIDE THE CONTINENTAL UNITED STATES, AND RETURN, PROVIDED THE APPOINTEES AGREE IN WRITING TO REMAIN IN THE " GOVERNMENT SERVICE" FOR 12 MONTHS, UNLESS SEPARATED FOR REASONS BEYOND THEIR CONTROL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED. ALSO, SECTION 7 PROVIDES THAT IN CASE OF VIOLATION OF SUCH AGREEMENT ANY MONEYS EXPENDED BY THE UNITED STATES ON ACCOUNT OF SUCH EXPENSES OF TRAVEL AND TRANSPORTATION SHALL BE RECOVERABLE FROM THE INDIVIDUAL CONCERNED AS A DEBT DUE THE UNITED STATES; THAT THE EXPENSES OF RETURN TRAVEL AND TRANSPORTATION UPON SEPARATION SHALL BE ALLOWED WHETHER SUCH SEPARATION IS FOR THE PURPOSES OF THE GOVERNMENT OR FOR PERSONAL CONVENIENCE; BUT THAT SUCH EXPENSES SHALL NOT BE ALLOWED (1) UNLESS THE EMPLOYEE HAS SERVED OUTSIDE THE CONTINENTAL UNITED STATES FOR A MINIMUM PERIOD OF NOT LESS THAN ONE OR MORE THAN THREE YEARS PRESCRIBED IN ADVANCE, OR (2) UNLESS THE SEPARATION IS FOR REASONS BEYOND THE CONTROL OF THE INDIVIDUAL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED. THE STATUTE DOES NOT SPECIFICALLY COVER THE SITUATION WHERE A NEW APPOINTEE ASSIGNED TO DUTY OUTSIDE THE CONTINENTAL UNITED STATES TRANSFERS BETWEEN FEDERAL AGENCIES AFTER THE ASSIGNMENT.

UNDER THE AGREEMENT SIGNED BY THE EMPLOYEE, REFERRED TO IN QUESTION 1, THE EMPLOYEE AGREED TO REMAIN IN "THE GOVERNMENT SERVICE" FOR A PERIOD OF 12 MONTHS FOLLOWING THE EFFECTIVE DATE OF THE TRANSFER, UNLESS EARLIER SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE AGENCY. WHILE UNDER THE TERMS OF THAT AGREEMENT THE EMPLOYEE COULD NOT BE CONSIDERED AS HAVING BREACHED HIS AGREEMENT SOLELY BY REASON OF A TRANSFER PRIOR TO THE EXPIRATION OF THE AGREED PERIOD OF SERVICE SO AS TO MAKE HIM LIABLE FOR THE EXPENSE OF TRAVEL AND TRANSPORTATION FROM THE UNITED STATES TO HIS POST OF DUTY, HE WOULD HAVE TO FULFILL THE REQUIREMENTS OF THE AGREEMENT WITH THE AGENCY TO WHICH HE TRANSFERS BEFORE BEING ENTITLED TO RETURN EXPENSES. HOWEVER, IN THE ABSENCE OF A NEW AGREEMENT, SUCH AS REFERRED TO ABOVE INCIDENT TO A TRANSFER, AN EMPLOYEE MAY BE CONSIDERED AS BEING ENTITLED TO THE EXPENSES OF TRAVEL AND TRANSPORTATION TO AND FROM HIS POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES, PROVIDED HE WOULD HAVE BEEN ENTITLED THERETO AT THE TIME OF HIS RETURN HAD HE CONTINUED IN THE AGENCY IN WHICH ORIGINALLY EMPLOYED. QUESTION 1 IS ANSWERED ACCORDINGLY.

IN ANSWER TO QUESTION 2, THERE IS NO AUTHORITY TO PAY THE COST OF RETURN TRAVEL AND TRANSPORTATION FROM THE APPROPRIATION OF ANY AGENCY OTHER THAN THE AGENCY IN WHICH THE EMPLOYEE IS EMPLOYED AT THE TIME OF HIS RETURN. SEE GENERALLY 26 COMP. GEN. 297, 301.

THE SITUATION IN QUESTION 3, WHERE AN EMPLOYEE SEPARATES FROM THE FEDERAL SERVICE AFTER TRANSFER BETWEEN AGENCIES BUT BEFORE EXPIRATION OF THE 12- MONTH PERIOD OF SERVICE ORIGINALLY AGREED UPON, COULD ARISE EITHER WHERE THE AGENCY TO WHICH THE TRANSFER IS MADE DOES OR DOES NOT ENTER INTO A NEW AGREEMENT WITH THE EMPLOYEE UPON TRANSFER. IN EITHER CASE, THE AGENCY IN WHICH THE EMPLOYEE CURRENTLY IS EMPLOYED SHOULD DETERMINE WHETHER THE SEPARATION IS FOR ACCEPTABLE REASONS AND BEYOND THE CONTROL OF THE EMPLOYEE.