B-112775, JANUARY 14, 1953, 32 COMP. GEN. 323

B-112775, JANUARY 14, 1953, 32 COMP. GEN. 323

OVERSEAS EMPLOYEES - RETURN TO UNITED STATES AFTER REDUCTION IN FORCE - ENTITLEMENT TO TRANSPORTATION EXPENSES AND ADDITIONAL COMPENSATION FOR POSITIONS OUTSIDE CONTINENTAL UNITED STATES IN VIEW OF THE PROVISIONS OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, PROVIDING FOR THE RETURN TRANSPORTATION OF EMPLOYEES SERVING OVERSEAS, AND OF SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, PROVIDING FOR PAYMENT OF ADDITIONAL COMPENSATION TO PERSONS SERVING OVERSEAS, AN EMPLOYEE WHOSE OVERSEAS AGREEMENT PROVIDED FOR RETURN TRANSPORTATION IF SEPARATED FOR REASONS BEYOND HIS CONTROL AND WHO RESIGNED AFTER RECEIVING A REDUCTION IN FORCE NOTICE, MAY NOT HAVE HIS RIGHT TO BOTH TRANSPORTATION AND A LUMP-SUM LEAVE PAYMENT INCLUDING OVERSEAS DIFFERENTIAL DEFEATED BY THE ISSUANCE OF AN ADMINISTRATIVE ORDER REQUIRING HIM TO CHOOSE BETWEEN RETURN TRANSPORTATION AND THE OVERSEAS DIFFERENTIAL.

ACTING COMPTROLLER GENERAL FISHER TO THE ADMINISTRATOR, ECONOMIC STABILIZATION AGENCY, JANUARY 14, 1953:

REFERENCE IS MADE TO LETTER OF NOVEMBER 7, 1952, FROM YOUR IMMEDIATE PREDECESSOR, REQUESTING A DECISION UPON CERTAIN QUESTIONS HEREINAFTER QUOTED RELATING TO THE ENTITLEMENT TO RETURN TRANSPORTATION OF CERTAIN FORMER EMPLOYEES OF THE OFFICE OF PRICE STABILIZATION.

THE FACTS REGARDING A TYPICAL CASE AS RELATED IN THE SAID LETTER SHOW SUBSTANTIALLY THAT ON JANUARY 1, 1952, A MR. ERNEST T. MITCHELL ENTERED INTO AN EMPLOYMENT AGREEMENT WITH THE OFFICE OF PRICE STABILIZATION TO SERVE IN HAWAII, WHICH AGREEMENT CONTAINED IN PERTINENT PART THE FOLLOWING CLAUSE:

4. IF YOU FULFILL THE TERMS OF THIS EMPLOYMENT AGREEMENT; IF YOU RESIGN AFTER THE TERMINATION OF THE PERIOD SPECIFIED ABOVE FOR THE PURPOSE OF REMAINING OVERSEAS; OR IF YOU ARE SEPARATED FOR REASONS BEYOND YOUR CONTROL AND ACCEPTABLE TO OPS, RETURN TRANSPORTATION WILL BE OFFERED AT THE EARLIEST PRACTICABLE TIME THEREAFTER AND FAILURE ON YOUR PART TO ACCEPT WITHIN A REASONABLE TIME AFTER TERMINATION OF DUTY WILL CONSTITUTE A WAIVER OF YOUR RIGHT TO SUCH TRANSPORTATION UNDER THE PROVISIONS OF THIS AGREEMENT.

ON JULY 24, 1952, MR. MITCHELL WAS GIVEN A REDUCTION IN FORCE NOTICE TO BE EFFECTIVE AUGUST 30, 1952, AND ON OR ABOUT AUGUST 20, WAS NOTIFIED OF THE OFFICE OF PRICE STABILIZATION POLICY PROMULGATED AUGUST 14, 1952, WHICH, IN EFFECT, GAVE HIM THE ELECTION, AMONG OTHERS, OF (1) RESIGNING IN THE ISLANDS, WAIVING HIS RIGHTS TO RETURN TRANSPORTATION AND RECEIVING A LUMP-SUM PAYMENT FOR ACCUMULATED LEAVE AT A RATE INCLUDING THE AUTHORIZED DIFFERENTIAL, OR (2) ACCEPTING TRANSPORTATION TO THE UNITED STATES AND RECEIVING EITHER TERMINAL ANNUAL LEAVE OR A LUMP-SUM PAYMENT THEREFOR AT A RATE EXCLUSIVE OF THE DIFFERENTIAL.

ON AUGUST 29, MR. MITCHELL RESIGNED. IN HIS RESIGNATION, HE REFERRED TO SEVERAL OPTIONS MENTIONED IN THE LETTER OF NOTIFICATION OF JULY 24, BUT MADE NO REFERENCE TO THE CIRCULAR OF AUGUST 14, 1952. HE STATED AS HIS REASON FOR RESIGNING THAT HE CONTEMPLATED ENTERING UPON A BUSINESS ENTERPRISE AND REQUESTED A LUMP-SUM PAYMENT FOR ANNUAL LEAVE AT A RATE INCLUDING THE 20 PERCENT DIFFERENTIAL, WHICH PAYMENT IS STATED TO HAVE BEEN MADE. NOTWITHSTANDING THE FOREGOING MR. MITCHELL ON SEPTEMBER 15 SUBMITTED A WRITTEN REQUEST FOR AIR TRANSPORTATION FROM HAWAII TO NASHVILLE, TENNESSEE, WHICH REQUEST, BECAUSE OF THE ANNOUNCED POLICY, WAS DENIED. IT APPEARS FROM THE RECORD THAT MR. MITCHELL DEPARTED FROM HAWAII ON SEPTEMBER 18 AND RETURNED TO NASHVILLE AT HIS OWN EXPENSE AND THAT HE NOW IS CLAIMING REIMBURSEMENT FOR THE TRAVEL EXPENSES SO INCURRED. THE PRESENT STATUS OF HIS IMMEDIATE FAMILY AND HIS HOUSEHOLD GOODS IS NOT DISCLOSED.

THE QUESTIONS REFERRED TO IN THE OPENING PARAGRAPH HEREOF ARE AS FOLLOWS:

1. DOES THE OPS POLICY DESCRIBED ABOVE VALIDLY MODIFY THE ORIGINAL EMPLOYMENT AGREEMENT, AND IS OPS IN THE RIGHT IN DENYING MR. MITCHELL THE RETURN TRANSPORTATION HE HAS DEMANDED?

2. IF THESE QUESTIONS ARE ANSWERED IN THE NEGATIVE, MAY OPS REQUIRE REFUND OF THE DIFFERENTIAL PAID TO MR. MITCHELL AS A PART OF HIS LUMP SUM PAYMENT?

IN OFFICE DECISION OF JUNE 25, 1952, B-108678, 31 COMP. GEN. 683, IT WAS STATED WITH RESPECT TO AN EMPLOYEE'S ENTITLEMENT TO RETURN TRANSPORTATION, AS FOLLOWS:

THE EFFECT OF THE AMENDMENT ACCOMPLISHED BY THE ENACTMENT OF PUBLIC LAW 830 WAS TO ESTABLISH, WITH RESPECT TO AN EMPLOYEE SERVING OUTSIDE OF THE UNITED STATES UNDER AN AGREEMENT FOR A PERIOD OF ONE TO THREE YEARS, A VESTED RIGHT TO RETURN TRANSPORTATION INCIDENT TO SEPARATION UPON COMPLETION OF THE AGREED PERIOD OF SERVICE. * * *

ALSO, SEE 30 COMP. GEN. 231; 28 ID. 285. THE SAME PRINCIPLE WOULD APPLY TO AN EMPLOYEE SEPARATED FOR THE PURPOSES OF THE GOVERNMENT PRIOR TO THE COMPLETION OF HIS AGREED PERIOD OF SERVICE. ALSO, IT HAS BEEN HELD THAT IF AN EMPLOYEE OTHERWISE ENTITLED TO THE ADDITIONAL COMPENSATION UNDER SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS AMENDED, 62 STAT. 1205, IS SEPARATED AT HIS DUTY STATION OUTSIDE THE CONTINENTAL UNITED STATES A LUMP-SUM PAYMENT FOR ACCUMULATED LEAVE SHOULD INCLUDE SUCH ADDITIONAL COMPENSATION IN THE RATE OF PAYMENT. SEE 28 COMP. GEN. 377; ID. 465; 29 ID. 10. NOR IS THE INCLUSION OF SUCH ADDITIONAL COMPENSATION IN THE LUMP-SUM PAYMENT PRECLUDED BY THE FACT THAT THE EMPLOYEE IS ALLOWED RETURN TRANSPORTATION TO THE UNITED STATES AFTER SEPARATION. B-90702, DECEMBER 7, 1949.

IN VIEW OF THE MANDATORY NATURE OF THE PROVISIONS OF SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, RELATIVE TO RETURN TRANSPORTATION, AND IN VIEW OF THE PROVISIONS OF SECTION 207 OF THE STATUTE, AND REGULATIONS THEREUNDER, RELATING TO PAYMENT OF CERTAIN ADDITIONAL COMPENSATION, AS INTERPRETED BY THIS OFFICE, IT IS CONCLUDED THAT POLICIES AND PROCEDURES, SUCH AS HERE INVOLVED, WHICH PURPORT TO DISTURB LAWFUL COMMITMENTS AS TO RETURN TRANSPORTATION, MAY NOT BE GIVEN EFFECT SO AS TO DEFEAT SUCH RIGHT TO RETURN TRANSPORTATION OR PAYMENT OF THE ADDITIONAL COMPENSATION.

ACCORDINGLY, ALL OF THE QUESTIONS ABOVE QUOTED ARE ANSWERED IN THE NEGATIVE, AND REIMBURSEMENT OF RETURN TRAVEL AND TRANSPORTATION EXPENSES INCURRED BY MR. MITCHELL, AND OTHERS SIMILARLY SITUATED, SHOULD BE ALLOWED TO THE EXTENT AUTHORIZED BY LAW, AND NO REFUND OF OTHERWISE PROPER ADDITIONAL COMPENSATION PAYMENTS SHOULD BE REQUIRED.