B-121878, JANUARY 7, 1955, 34 COMP. GEN. 328

B-121878, JANUARY 7, 1955, 34 COMP. GEN. 328

LEAVES OF ABSENCE - ANNUAL - TRAVEL TIME INCIDENT TO HOME LEAVE OF OVERSEAS EMPLOYEES THE TRAVEL TIME INVOLVED IN RETURNING AN OVERSEAS EMPLOYEE TO THE UNITED STATES FOR SEPARATION OR FOR TRANSFER TO A POSITION IN THE UNITED STATES FOR THE CONVENIENCE OF THE GOVERNMENT FOLLOWING COMPLETION OF AN AGREED PERIOD OF SERVICE IS NOT REQUIRED TO BE CHARGED AGAINST HIS ANNUAL LEAVE BY THE ACT OF AUGUST 31, 1954, WHICH AUTHORIZES PAYMENT OF EXPENSES FOR RETURNING EMPLOYEES FOR LEAVE PURPOSES. THE ACT OF AUGUST 31, 1954, WHICH AUTHORIZES PAYMENT OF EXPENSES FOR RETURNING EMPLOYEES TO THE UNITED STATES FOR LEAVE PURPOSES, DOES NOT LIBERALIZE EXISTING LEAVE RIGHTS OR CREATE NEW ONES AND, THEREFORE, AN EMPLOYEE WHO IS NOT ELIGIBLE FOR TRAVEL TIME WITHOUT A CHARGE TO LEAVE UNDER SECTION 203 (E) OF THE ANNUAL AND SICK LEAVE ACT OF 1951 MUST BE CHARGED ANNUAL LEAVE FOR TRAVEL TIME FROM HIS OVERSEAS POST TO HIS PLACE OF ACTUAL RESIDENCE AND RETURN. AN OVERSEAS EMPLOYEE WHO IS NOT ELIGIBLE FOR TRAVEL TIME WITHOUT A CHARGE TO LEAVE UNDER SECTION 203 (E) OF THE ANNUAL AND SICK LEAVE ACT OF 1951 AND WHO RETURNS TO THE UNITED STATES FOR LEAVE PURPOSES AND THEN TRAVELS TO A DIFFERENT OVERSEAS POST AT THE CONCLUSION OF SUCH LEAVE PERIOD SHOULD BE CHARGED WITH LEAVE UNTIL THE DATE HE REPORTS TO HIS NEW POST, LESS THE CONSTRUCTIVE DIRECT TRAVEL TIME FROM THE OLD TO THE NEW POST. THE PROVISION IN THE ACT OF AUGUST 31, 1954, WHICH EXCLUDES PAYMENT OF EXPENSES FOR TRANSPORTATION OF HOUSEHOLD EFFECTS INCIDENT TO RETURNING OVERSEAS EMPLOYEES AND THEIR FAMILIES TO PLACE OF ACTUAL RESIDENCE IN THE UNITED STATES FOR LEAVE PURPOSES, DOES NOT PRECLUDE THE PAYMENT BY THE GOVERNMENT FOR SHIPMENT OF AN EMPLOYEE'S EFFECTS INCIDENT TO A TRANSFER BETWEEN OVERSEAS STATION FOR THE CONVENIENCE OF THE GOVERNMENT UNDER SECTION 1 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, NOTWITHSTANDING THAT THE EMPLOYEE MAY BE GRANTED HOME LEAVE UNDER THE 1954 ACT BEFORE REPORTING TO HIS NEW OVERSEAS STATION.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF COMMERCE, JANUARY 7, 1955:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 25, 1954, PRESENTING FOR DECISION CERTAIN QUESTIONS STATED TO HAVE ARISEN UNDER THE ACT OF AUGUST 31, 1954, PUBLIC LAW 737, 68 STAT. 1008, QUOTED IN PART IN YOUR LETTER AS FOLLOWS:

THAT EXPENSES OF ROUND TRIP TRAVEL OF EMPLOYEE AND TRANSPORTATION OF IMMEDIATE FAMILY BUT EXCLUDING HOUSEHOLD EFFECTS, FROM THEIR POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT OR TRANSFER TO SUCH OVERSEAS POSTS OF DUTY, SHALL BE ALLOWED IN THE CASE OF PERSONS WHO HAVE SATISFACTORILY COMPLETED AN AGREED PERIOD OF SERVICE OVERSEAS AND ARE RETURNING TO THEIR ACTUAL PLACE OF RESIDENCE FOR THE PURPOSE OF TAKING LEAVE PRIOR TO SERVING ANOTHER TOUR OF DUTY AT THE SAME OR SOME OTHER OVERSEAS POST, UNDER A NEW WRITTEN AGREEMENT ENTERED INTO BEFORE DEPARTING FROM THE OVERSEAS POST.

YOU STATE THAT NONE OF THE EMPLOYEES INVOLVED IN THE FIRST FIVE QUESTIONS PRESENTED ARE ELIGIBLE FOR TRAVEL TIME WITHOUT CHARGE TO LEAVE AS AUTHORIZED UNDER CERTAIN CONDITIONS BY SECTION 203 (E) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 5 U.S.C. 2062 (E). THE REPLY TO EACH OF THESE QUESTIONS WILL BE PREDICATED UPON THAT BASIS.

THE QUESTIONS WILL BE CONSIDERED IN THE ORDER PRESENTED, EXCEPT THAT QUESTION 3 WILL BE CONSIDERED AFTER QUESTION 5.

1. IF AN EMPLOYEE, AFTER HAVING COMPLETED AN AGREED PERIOD OF SERVICE, DOES NOT AGREE TO SERVE ANOTHER TOUR OF DUTY AT THE SAME OR ANOTHER OVERSEAS POST, AND IS SEPARATED, MAY HE BE REGARDED AS IN A TRAVEL STATUS WITHOUT CHARGE TO ANNUAL LEAVE FOR THE PERIOD INVOLVED IN TRAVEL FROM HIS OVERSEAS POST TO HIS PLACE OF RESIDENCE?

PRIOR TO THE AMENDMENT OF SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 806, 808, 5 U.S.C. 73B-3, BY PUBLIC LAW 737, THE PAYMENT OF SALARY TO NEW APPOINTEES FROM PLACE OF ACTUAL RESIDENT TO POST OF DUTY OUTSIDE THE UNITED STATES AND RETURN WAS AUTHORIZED IN CONSONANCE WITH THE RECOGNIZED CONCEPT THAT WHERE A STATUTE AUTHORIZES TRAVEL FROM PLACE OF RESIDENCE AT TIME OF APPOINTMENT COMPENSATION IS PAYABLE--- WITHOUT CHARGE TO ANNUAL LEAVE--- FOR TRAVEL TIME TO AND FROM THE DUTY POINT AND FROM AND TO THE PLACE OF RESIDENCE AT TIME OF APPOINTMENT. SEE 24 COMP. GEN. 391, 394. THE QUOTED PROVISION OF PUBLIC LAW 737 REQUIRES NO MODIFICATION IN SUCH CONCEPT NOR DOES IT AFFECT IN ANY WAY THE PAY OR DUTY STATUS OF EMPLOYEES RETURNING TO THE UNITED STATES FOR SEPARATION AFTER COMPLETION OF AN AGREED TERM OF SERVICE OVERSEAS. HENCE, THE NECESSARY TRAVEL TIME INVOLVED IN RETURNING AN EMPLOYEE TO THE UNITED STATES FOR SEPARATION IS NOT BY THE PROVISION TO BE CHARGED AGAINST HIS ANNUAL LEAVE.

2. IF AN EMPLOYEE SERVING AT AN OVERSEAS POST COMPLETES AN AGREED PERIOD OF SERVICE AND IS RETURNED THEREFROM FOR THE PURPOSE OF REASSIGNMENT TO A POSITION IN THE UNITED STATES OR IN THE TERRITORY OF POSSESSION IN WHICH HE HAS RESIDENCE, MAY HE BE REGARDED AS IN A TRAVEL STATUS WITHOUT CHARGE TO ANNUAL LEAVE FOR THE PERIOD INVOLVED IN TRAVEL FROM HIS OVERSEAS POST TO THE PLACE OF HIS NEW ASSIGNMENT?

AN EMPLOYEE EFFECTING A PERMANENT CHANGE OF STATION UNDER TRAVEL ORDERS ISSUED PURSUANT TO SECTION 1 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, 60 STAT. 806, 5 U.S.C. 73B-1, WAS ENTITLED, PRIOR TO ENACTMENT OF PUBLIC LAW 737, TO COMPENSATION WITHOUT CHARGE TO LEAVE FOR THE TIME NECESSARILY CONSUMED IN TRAVELING FROM HIS OLD TO NEW STATION. NO CHANGE IN SUCH PRACTICE IS REQUIRED BY PUBLIC LAW 737. REPLYING TO YOUR QUESTION SPECIFICALLY, YOU ARE ADVISED THAT IN THE CASE OF A TRANSFER FOR THE CONVENIENCE OF THE GOVERNMENT THE NECESSARY TRAVEL TIME INVOLVED NEED NOT BE CHARGED TO ANNUAL LEAVE OF THE EMPLOYEE.

4. UNDER THE ABOVE-QUOTED PROVISION, SHOULD AN EMPLOYEE BE CHARGED ANNUAL LEAVE DURING THE PERIOD REQUIRED FOR TRAVEL FROM HIS OVERSEAS POST TO HIS PLACE OF ACTUAL RESIDENCE AND FOR THE PERIOD INVOLVED IN RETURNING TO THE SAME OVERSEAS POST.

THE STATUTORY PROVISION, ABOVE, MERELY AUTHORIZES THE PAYMENT, UNDER THE CONDITIONS SPECIFIED, OF CERTAIN EXPENSES OF AN EMPLOYEE AND HIS FAMILY INCIDENT TO HIS RETURN TO THE UNITED STATES FOR THE PURPOSE OF TAKING LEAVE. IT DOES NOT LIBERALIZE EXISTING OR CREATE NEW LEAVE RIGHTS OR BENEFITS IN ANY EMPLOYEE. THE TRAVEL TIME PROPERLY IS CHARGEABLE TO THE ANNUAL LEAVE OF THE EMPLOYEE.

5. IF THE ANSWER TO QUESTION NO. 4 IS IN THE AFFIRMATIVE, WOULD A DIFFERENT ANSWER BE REQUIRED IF THE EMPLOYEE WERE RETURNING TO A DIFFERENT OVERSEAS POST AFTER A PERIOD OF LEAVE?

IN THIS SITUATION THE EMPLOYEE SHOULD BE CHARGED WITH LEAVE UNTIL THE DATE OF REPORTING AT HIS NEW POST, BUT THERE SHOULD BE DEDUCTED FROM SUCH CHARGE THE CONSTRUCTIVE DIRECT TRAVEL TIME FROM THE OLD TO THE NEW POST.

3. IF AN EMPLOYEE COMPLETES AN AGREED PERIOD OF SERVICE AND IS RETURNED TO HIS PLACE OF ACTUAL RESIDENCE FOR LEAVE WITHOUT HAVING SIGNED AN AGREEMENT TO SERVE AT THE SAME OR SOME OTHER OVERSEAS POST PRIOR TO DEPARTURE, AND IF, DURING THE LEAVE PERIOD, HE IS OFFERED AND ACCEPTS A POSITION AT AN OVERSEAS LOCATION WHICH WAS NOT AVAILABLE FOR OFFER TO HIM PRIOR TO DEPARTURE FROM HIS OVERSEAS POST, MAY THE PERIOD OF TRAVEL INVOLVED IN TRAVEL FROM THE OVERSEAS POST TO HIS PLACE OF ACTUAL RESIDENCE BE EXCLUDED FROM A CHARGE AGAINST ANNUAL LEAVE?

IN CONNECTION WITH THIS QUESTION IT HAS BEEN ASCERTAINED INFORMALLY FROM THE DEPARTMENT OF COMMERCE THAT AT THE TIME OF THE EMPLOYEE'S DEPARTURE FROM THE OVERSEAS POST, IT WAS CONTEMPLATED THAT HE WOULD BE TRANSFERRED TO A POSITION IN THE UNITED STATES FOLLOWING THE EXPIRATION OF SUCH LEAVE. THE SITUATION PRESENTED IN THIS QUESTION IS NOT DEEMED TO BE MATERIALLY DIFFERENT FROM THAT INVOLVED IN QUESTION 5 AND THE EMPLOYEE SHOULD BE CHARGED LEAVE FOR THE ENTIRE PERIOD OF TRAVEL FROM THE OLD POST TO THE ACTUAL PLACE OF RESIDENCE IN THE UNITED STATES AND THENCE TO THE NEW OVERSEAS POST, LESS CONSTRUCTIVE TRAVEL TIME FROM THE OLD TO THE NEW OVERSEAS POST.

YOUR REMAINING QUESTION IS WHETHER THERE IS ANY REASON TO CONSIDER THAT BECAUSE OF THE ABOVE-QUOTED PROVISION OF LAW EXPENSES INVOLVED IN TRANSPORTING AN EMPLOYEE'S HOUSEHOLD EFFECTS BETWEEN OVERSEAS STATIONS MAY NOT BE PAID BY THE GOVERNMENT. THE PROVISION IN QUESTION IS NOT VIEWED AS LIMITING IN ANY WAY THE ADMINISTRATIVE DISCRETION TO AUTHORIZE OR APPROVE SHIPMENT OF ANY EMPLOYEE'S EFFECTS AT GOVERNMENT EXPENSE INCIDENT TO A TRANSFER BETWEEN OVERSEAS STATIONS FOR THE CONVENIENCE OF THE GOVERNMENT PURSUANT TO SECTION 1 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, NOTWITHSTANDING SUCH EMPLOYEE MAY BE GRANTED HOME LEAVE PRIOR TO REPORTING TO HIS NEW STATION OVERSEAS.