B-111958, OCTOBER 16, 1952, 32 COMP. GEN. 183

B-111958: Oct 16, 1952

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EVEN THOUGH NO WRITTEN AGREEMENT TO REMAIN WITH THE GOVERNMENT FOR A STIPULATED PERIOD OF SERVICE WAS SIGNED BY THE EMPLOYEE. 1952: REFERENCE IS MADE TO LETTER DATED OCTOBER 8. SWEARINGEN OBTAINED TRANSPORTATION TO HONOLULU AT HIS OWN EXPENSE AND WAS NOT REQUIRED TO ENTER INTO AN AGREEMENT IN WRITING TO REMAIN WITH THE GOVERNMENT SERVICE FOR A STIPULATED PERIOD OF SERVICE AS REQUIRED BY SECTION 7. WHILE THE FAILURE TO REQUIRE THE EMPLOYEE TO ENTER INTO A WRITTEN AGREEMENT AT THE TIME OF HIS APPOINTMENT APPEARS TO HAVE BEEN DUE TO AN ADMINISTRATIVE DETERMINATION THAT HE WAS A LEGAL RESIDENT OF HAWAII. - WAS IN THE UNITED STATES. IT IS INDICATED THAT THE ADMINISTRATIVE OFFICIALS NOW ARE SATISFIED THAT THE EMPLOYEE FACTUALLY HAS MET THE ACTUAL PLACE OF RESIDENCE REQUIREMENT OF SECTION 7 OF THE ABOVE-REFERRED-TO ACT SO AS TO PERMIT PAYMENT OF HIS RETURN EXPENSES TO THE UNITED STATES.

B-111958, OCTOBER 16, 1952, 32 COMP. GEN. 183

TRAVELING EXPENSES - OVERSEAS EMPLOYMENT - MINIMUM SERVICE AGREEMENTS - EMPLOYEE'S FAILURE TO SIGN AGREEMENT WHILE THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, WHICH CONTAINS THE AUTHORITY FOR AND CONDITIONS UNDER WHICH THE UNITED STATES MAY PAY TRAVEL EXPENSES OF AN EMPLOYEE INCIDENT TO THE COMPLETION OF AN OVERSEAS EMPLOYMENT AGREEMENT, PROVIDES THAT TRAVEL EXPENSES SHALL NOT BE ALLOWED UNLESS AND UNTIL THE EMPLOYEE AGREES IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE FOR A MINIMUM PERIOD OF ONE YEAR, AN EMPLOYEE WHO SERVED A PERIOD IN EXCESS OF THE REQUIRED ONE YEAR MINIMUM MAY BE ALLOWED THE COST OF RETURN TRANSPORTATION TO THE UNITED STATES INCIDENT TO SEPARATION FROM THE SERVICE, EVEN THOUGH NO WRITTEN AGREEMENT TO REMAIN WITH THE GOVERNMENT FOR A STIPULATED PERIOD OF SERVICE WAS SIGNED BY THE EMPLOYEE.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF COMMERCE, OCTOBER 16, 1952:

REFERENCE IS MADE TO LETTER DATED OCTOBER 8, 1952, FROM THE ACTING SECRETARY OF COMMERCE, REQUESTING A DECISION RELATIVE TO THE PROPRIETY OF PAYMENT FROM GOVERNMENT FUNDS OF THE RETURN TRAVEL AND TRANSPORTATION OF MR. R. W. SWEARINGEN, JR., AN EMPLOYEE OF THE CIVIL AERONAUTICS ADMINISTRATION, UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED.

THE RECORD SHOWS THAT THE EMPLOYEE RECEIVED AN APPOINTMENT IN FEBRUARY 1949 FOR DUTY WITH THE CIVIL AERONAUTICS ADMINISTRATION, HONOLULU, HAWAII. MR. SWEARINGEN OBTAINED TRANSPORTATION TO HONOLULU AT HIS OWN EXPENSE AND WAS NOT REQUIRED TO ENTER INTO AN AGREEMENT IN WRITING TO REMAIN WITH THE GOVERNMENT SERVICE FOR A STIPULATED PERIOD OF SERVICE AS REQUIRED BY SECTION 7, PUBLIC LAW 600, 60 STAT. 806, 808. WHILE THE FAILURE TO REQUIRE THE EMPLOYEE TO ENTER INTO A WRITTEN AGREEMENT AT THE TIME OF HIS APPOINTMENT APPEARS TO HAVE BEEN DUE TO AN ADMINISTRATIVE DETERMINATION THAT HE WAS A LEGAL RESIDENT OF HAWAII, AND WITHOUT CONSIDERING THE FACT THAT HIS ACTUAL RESIDENCE AT THE TIME OF APPOINTMENT- -- AND FOR SUBSTANTIALLY THE ENTIRE PERIOD SUBSEQUENT TO OCTOBER 1947 AND UP TO THE TIME OF HIS APPOINTMENT--- WAS IN THE UNITED STATES, IT IS INDICATED THAT THE ADMINISTRATIVE OFFICIALS NOW ARE SATISFIED THAT THE EMPLOYEE FACTUALLY HAS MET THE ACTUAL PLACE OF RESIDENCE REQUIREMENT OF SECTION 7 OF THE ABOVE-REFERRED-TO ACT SO AS TO PERMIT PAYMENT OF HIS RETURN EXPENSES TO THE UNITED STATES. ALSO, THE RECORDS SHOW THAT THE STANDARD PRACTICE OF THE CIVIL AERONAUTICS ADMINISTRATION AT THE TIME OF APPOINTMENT OF MR. SWEARINGEN WAS TO REQUIRE EMPLOYEES RECRUITED FOR OVERSEAS SERVICE TO SIGN AN AGREEMENT TO SERVE AT THEIR OVERSEAS POST FOR A MINIMUM PERIOD OF 18 MONTHS AND THAT MR. SWEARINGEN HAS SERVED CONTINUOUSLY IN THE CIVIL AERONAUTICS ADMINISTRATION AT HONOLULU FOR A PERIOD IN EXCESS OF 3 1/2 YEARS. IT APPEARS THAT THE CIVIL AERONAUTICS ADMINISTRATION IS AGREEABLE TO PAYING MR. SWEARINGEN'S RETURN EXPENSE TO THE MAINLAND IN THE EVENT HE IS SEPARATED BY REDUCTION IN FORCE OR BY RESIGNATION BUT HAS DOUBT AS TO ITS AUTHORITY TO AUTHORIZE SUCH EXPENSES IN VIEW OF THE FAILURE TO SATISFY THE STATUTORY REQUIREMENT THAT THERE BE AN AGREEMENT IN WRITING FOR A PREDETERMINED PERIOD OF OVERSEAS SERVICE.

IT IS TRUE THAT SECTION 7 OF PUBLIC LAW 600 REQUIRES THAT TRAVEL EXPENSES OF THE NATURE UNDER CONSIDERATION "SHALL NOT BE ALLOWED" UNLESS AND UNTIL THE PERSON SELECTED FOR APPOINTMENT AGREES IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE FOR A MINIMUM PERIOD OF ONE YEAR. WHILE, IN THIS INSTANCE, AN AGREEMENT WAS NOT ENTERED INTO, THE EMPLOYEE, IN FACT, HAS SERVED A PERIOD IN EXCESS OF THE ONE-YEAR MINIMUM REQUIRED BY THE STATUTE AND IN EXCESS OF THE 18-MONTH PERIOD REQUIRED BY THE CIVIL AERONAUTICS ADMINISTRATION. THUS, IT IS EVIDENT THAT THE GOVERNMENT HAS RECEIVED THE VALUE IN RESPECT OF TIME REQUIRED TO BE SERVED UNDER THE STATUTE. MOREOVER, NO USEFUL PURPOSE WOULD APPEAR TO BE SERVED BY EXECUTION OF AN AGREEMENT IN RESPECT TO THE MATTER AT THIS TIME. ACCORDINGLY, YOU ARE ADVISED THAT WHETHER THE EMPLOYEE'S SEPARATION BE CONSIDERED AS A REDUCTION IN FORCE ACTION OR PURELY AS A RESIGNATION, OBJECTION IS NOT REQUIRED TO ALLOWANCE OF THE RETURN EXPENSES OF MR. SWEARINGEN INCIDENT TO SEPARATION FROM THE SERVICE UPON THE GROUND THAT NO WRITTEN AGREEMENT WAS SIGNED BY THE EMPLOYEE.