B-124005, OCT. 6, 1955

B-124005: Oct 6, 1955

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IN ORDER TO DETERMINE WHETHER SUFFICIENT AUTHORITY EXISTS TO TRANSPORT AN EMPLOYEE FROM HIS OVERSEAS RESIDENCE TO AN OVERSEAS DUTY STATION (EVEN THOUGH THE DUTY STATION IS IN THE SAME TERRITORY OR COUNTRY AS THE PLACE OF RESIDENCE) IF PROVISION OF THIS TRAVEL AND TRANSPORTATION WILL BE ADVANTAGEOUS TO THE GOVERNMENT. IT IS THE POLICY OF THE DEPARTMENT OF DEFENSE TO UTILIZE OVERSEAS. IT IS POINTED OUT THAT SINCE DEPARTMENT OF DEFENSE ACTIVITIES ARE FREQUENTLY LOCATED IN SPARSELY POPULATED AREAS THE ABILITY OF THE DEPARTMENT TO CONTINUE UTILIZING LOCAL HIRE DEPENDS. ADVANTAGEOUS TO THE GOVERNMENT WOULD BE CONSTRUED TO INCLUDE SITUATIONS WHERE ECONOMICS ARE EFFECTED AND WHERE OTHER SIMILAR MANAGEMENT CONSIDERATIONS ARE SERVED. * * *" "THE LANGUAGE OF SECTION 7.

B-124005, OCT. 6, 1955

TO THE HONORABLE SECRETARY OF DEFENSE:

ON MAY 16, 1955, THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTED THAT WE RECONSIDER THE RULE SET FORTH IN OUR DECISION OF MARCH 11, 1948, 27 COMP. GEN. 509, IN ORDER TO DETERMINE WHETHER SUFFICIENT AUTHORITY EXISTS TO TRANSPORT AN EMPLOYEE FROM HIS OVERSEAS RESIDENCE TO AN OVERSEAS DUTY STATION (EVEN THOUGH THE DUTY STATION IS IN THE SAME TERRITORY OR COUNTRY AS THE PLACE OF RESIDENCE) IF PROVISION OF THIS TRAVEL AND TRANSPORTATION WILL BE ADVANTAGEOUS TO THE GOVERNMENT.

IN 27 COMP. GEN. 509, WE RULED THAT UNDER SECTION 7 OF THE ACT OF AUGUST 2, 1946 (ADMINISTRATIVE EXPENSES ACT), PUBLIC LAW 600, 60 STAT. 806, TRAVEL AND TRANSPORTATION AT GOVERNMENT EXPENSES COULD NOT BE AUTHORIZED FOR A PERSON NEWLY APPOINTED TO A DUTY STATION IN THE SAME TERRITORY OR COUNTRY OUTSIDE THE CONTINENTAL UNITED STATES IN WHICH HE HAD ESTABLISHED RESIDENCE. SPECIFICALLY, THAT DECISION HELD THAT EXPENSES OF TRAVEL MAY NOT BE PAID TO A NEW APPOINTEE RESIDING IN ALASKA AND APPOINTED FOR DUTY AT A POST ALSO IN ALASKA.

THE ASSISTANT SECRETARY'S LETTER STATES THAT, FOR ECONOMIC AND OTHER REASONS ADVANTAGEOUS TO THE UNITED STATES, IT IS THE POLICY OF THE DEPARTMENT OF DEFENSE TO UTILIZE OVERSEAS, TO THE MAXIMUM EXTENT PRACTICABLE, QUALIFIED PERSONNEL AVAILABLE LOCALLY IN THE OVERSEAS AREA OR IN ADJACENT OVERSEAS AREAS. IT IS POINTED OUT THAT SINCE DEPARTMENT OF DEFENSE ACTIVITIES ARE FREQUENTLY LOCATED IN SPARSELY POPULATED AREAS THE ABILITY OF THE DEPARTMENT TO CONTINUE UTILIZING LOCAL HIRE DEPENDS, TO SOME DEGREE, ON ITS ABILITY TO PROVIDE THEM TRAVEL AND TRANSPORTATION AT GOVERNMENT EXPENSE FROM THEIR PLACE OF RESIDENCE TO THEIR INITIAL DUTY STATION--- WITHIN THE SAME TERRITORY OR FOREIGN COUNTRY--- WHERE A SIGNIFICANT DISTANCE EXISTS.

THE LETTER CONTINUES, IN PART, AS FOLLOWS:

"IN ORDER TO CONTINUE SUCCESSFUL MAXIMUM UTILIZATION OF INDIGENOUS PERSONNEL, IT WOULD BE EXTREMELY DESIRABLE TO CLARIFY THE TERMS OF 27 COMP. GEN. 509 IN ORDER TO PROVIDE THAT IN INSTANCES ADVANTAGEOUS TO THE GOVERNMENT TRAVEL AND TRANSPORTATION MAY BE AUTHORIZED FOR NEW APPOINTEES TO THEIR FIRST DUTY STATION OUTSIDE THE CONTINENTAL UNITED STATES REGARDLESS OF THEIR PLACE OF RESIDENCE. ADVANTAGEOUS TO THE GOVERNMENT WOULD BE CONSTRUED TO INCLUDE SITUATIONS WHERE ECONOMICS ARE EFFECTED AND WHERE OTHER SIMILAR MANAGEMENT CONSIDERATIONS ARE SERVED. * * *"

"THE LANGUAGE OF SECTION 7, PUBLIC LAW 600, DOES NOT RESTRICT TRAVEL AND TRANSPORTATION AUTHORITY TO (1) U.S. CITIZENS AND (2) PERSONS RESIDING IN THE CONTINENTAL UNITED STATES. IT IS THE VIEW OF THE DEPARTMENT OF DEFENSE THAT THE STATUTE IS SUFFICIENTLY BROAD TO INCLUDE CASES SUCH AS HERE INVOLVED. SECTION 7 LITERALLY APPLIED DOES NOT APPEAR TO RESTRICT (FOR ELIGIBILITY PURPOSES) THE EMPLOYEE'S RESIDENCE TO ANY GIVEN AREA NOR DOES IT RESTRICT THE DUTY STATION TO ANY GIVEN AREA SO LONG AS IT IS OUTSIDE THE CONTINENTAL UNITED STATES.'

SECTION 7 OF THE ACT OF AUGUST 2, 1946, PROVIDES, IN PART, AS FOLLOWS:

"APPROPRIATIONS FOR THE DEPARTMENTS SHALL BE AVAILABLE, IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT, FOR EXPENSES OF TRAVEL OF NEW APPOINTEES, EXPENSES OF TRANSPORTATION OF THEIR IMMEDIATE FAMILIES AND EXPENSES OF TRANSPORTATION OF THEIR HOUSEHOLD GOODS AND PERSONAL EFFECTS FROM PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT TO PLACES OF EMPLOYMENT OUTSIDE CONTINENTAL UNITED STATES, AND FOR SUCH EXPENSES ON RETURN OF EMPLOYEES FROM THEIR POSTS OF DUTY OUTSIDE CONTINENTAL UNITED STATES TO THE PLACES OF THEIR ACTUAL RESIDENCE, AT TIME OF ASSIGNMENT TO DUTY OUTSIDE THE UNITED STATES: * * *"

PRIOR TO THE ENACTMENT OF THE LEGISLATION JUST QUOTED THERE WAS NO AUTHORITY TO PAY THE TRAVEL EXPENSES OF A NEW APPOINTEE TO HIS FIRST DUTY STATION, WHETHER THAT STATION WAS INSIDE OR OUTSIDE THE CONTINENTAL UNITED STATES. SECTION 7 WAS ENACTED TO INSURE THAT, IN THE CASE OF POSITIONS ABROAD TO BE FILLED BY CITIZENS OF THIS COUNTRY, THERE WOULD NOT BE APPLIED THE GENERAL RULE THAT AN EMPLOYEE MUST BEAR THE EXPENSE OF REPORTING TO HIS FIRST DUTY STATION AND RETURNING TO HIS HOME OR PLACE OF ENGAGEMENT UPON SEPARATION FROM THE SERVICE. SEE PAGE 6 OF HOUSE REPORT NO. 2186, 79TH CONGRESS, 2ND SESSION ACCOMPANYING H.R. 6533, WHICH BECAME PUBLIC LAW 600. THE GENERAL RULE IS STILL APPLICABLE TO A NEW APPOINTEE RESIDING IN THE UNITED STATES WHOSE FIRST DUTY STATION IS ALSO IN CONTINENTAL UNITED STATES, EVEN THOUGH HE IS ASSIGNED TO A POST OF DUTY WHICH IS IN A REMOTE OR DESOLATE AREA. WE DO NOT BELIEVE THAT CONGRESS INTENDED TO GIVE TO NEW APPOINTEES RESIDING OUTSIDE THE UNITED STATES AT THE TIME OF THEIR APPOINTMENTS WHO ARE APPOINTED TO POSTS OF DUTY WITHIN THE TERRITORY OR COUNTRY IN WHICH THEY RESIDE GREATER RIGHTS THAN NEW APPOINTEES RESIDING IN THE UNITED STATES WHO ARE ASSIGNED TO POSTS OF DUTY WITHIN THE UNITED STATES.

IT MAY BE THAT LITERALLY ACCEPTED THE TERMINOLOGY OF THE SECTION IN QUESTION IS SUFFICIENTLY BROAD TO EMBRACE TRAVEL OF NEW APPOINTEES TO THEIR FIRST DUTY STATIONS OUTSIDE THE CONTINENTAL UNITED STATES EVEN THOUGH SUCH DUTY STATIONS ARE WITHIN THE SAME TERRITORY OR COUNTRY IN WHICH THEY RESIDE. HOWEVER, IN CONSTRUING OR CONSIDERING THE APPLICATION OF A STATUTE IT IS PERMISSIBLE TO LOOK TO ITS EVIDENT SPIRIT AND PURPOSE AS WELL AS TO THE STRICT LETTER OF THE LAW AND THE STRICT LETTER MUST YIELD TO ITS EVIDENT SPIRIT WHEN THIS IS NECESSARY TO GIVE EFFECT TO THE INTENT OF CONGRESS. IT DOES NOT APPEAR FROM THE LEGISLATIVE HISTORY OF SECTION 7 THAT CONGRESS INTENDED TO AUTHORIZE TRAVEL AT GOVERNMENT EXPENSE UNDER THE CIRCUMSTANCES CITED IN THE LETTER. IN FACT IT IS EVIDENT FROM THE TENOR OF THE LEGISLATIVE HISTORY THAT THE CONGRESS DID NOT EVEN CONSIDER OR CONTEMPLATE THE TYPE OF SITUATION REFERRED TO IN THE LETTER. SEE ABOVE CITED HOUSE REPORT; PAGE 6 OF SENATE REPORT NO. 1636, 79TH CONGRESS, 2ND SESSION, ON H.R. 4586, WHICH WAS SUPERSEDED BY H.R. 6533, THE LATTER BECOMING PUBLIC LAW 600. FROM THE DISCUSSION OF SECTION 7 CONTAINED IN THE ABOVE CITED HEARINGS IT IS EVIDENT THAT THE TRAVEL CONTEMPLATED THEREIN WAS TRAVEL TO "FOREIGN PORTS.' TRAVEL BETWEEN TWO POINTS IN A TERRITORY OR FOREIGN COUNTRY BY A RESIDENT OR CITIZEN OF THAT TERRITORY OR COUNTRY IS NOT TRAVEL TO A "FOREIGN POST" AS FAR AS THAT RESIDENT OR CITIZEN IS CONCERNED.

WHILE, AS POINTED OUT IN THE LETTER OF MAY 16, THE GENERAL PURPOSE OF SECTION 7 OF PUBLIC LAW 600, WAS TO FACILITATE THE RECRUITMENT OF PERSONNEL FOR DUTY OUTSIDE THE CONTINENTAL UNITED STATES, AS INDICATED ABOVE IT PRIMARILY WAS INTENDED FOR APPLICATION TO CASES OF PERSONS WHO AT THE TIME OF THEIR APPOINTMENT ACTUALLY WERE RESIDENTS OF THIS COUNTRY AND WHO WERE REQUIRED TO TRAVEL TO POSTS OF DUTY BEYOND THE CONTINENTAL UNITED STATES. SEE ABOVE CITED HOUSE REPORT. ALTHOUGH IN DECISION OF MARCH 18, 1947, 26 COMP. GEN. 679, SECTION 7 WAS REQUIRED TO TRAVEL TO A POST OF DUTY IN ALASKA, AND THE DECISION OF JANUARY 10, 1952, B-107059, THE SAID SECTION WAS INTERPRETED AS COVERING NURSES RECRUITED IN CANADA FOR DUTY IN ALASKA, IT IS NOT BELIEVED LEGALLY PROPER TO CONCLUDE THAT SECTION 7 EMBRACES THOSE CASES WHERE THE PLACE OF RESIDENCE AND CONTEMPLATED POST OF DUTY ARE BOTH INSIDE THE LIMITS OF ONE COUNTRY.

ACCORDINGLY, WE MUST HOLD THAT TRAVEL AND TRANSPORTATION AT GOVERNMENT EXPENSE MAY NOT BE AUTHORIZED UNDER SECTION 7 OF PUBLIC LAW 600 FOR A PERSON NEWLY APPOINTED TO A DUTY STATION IN THE SAME TERRITORY OR COUNTRY OUTSIDE THE CONTINENTAL UNITED STATES IN WHICH HE RESIDES. THE FACT IT MIGHT BE MORE ECONOMICAL OR ADVANTAGEOUS TO THE UNITED STATES IN OTHER WAYS TO PAY TRAVEL AND TRANSPORTATION COSTS OF SUCH APPOINTEES IS NOT SUFFICIENT REASON TO REQUIRE A DIFFERENT CONCLUSION. IF YOUR DEPARTMENT FEELS THAT IT SHOULD HAVE AUTHORITY TO PAY SUCH TRAVEL AND TRANSPORTATION COSTS, THE APPROPRIATE REMEDY WOULD BE TO REQUEST MODIFICATION OF THE STATUTE.

WE SUGGEST, HOWEVER, THAT TO THE EXTENT THE POSITIONS TO BE FILLED ARE NOT SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, AND THE SALARY RATES ARE NOT FIXED BY LAW OR REGULATIONS THERE WOULD BE NO LEGAL OBJECTION TO PROVIDING BY THE CONTRACTS OF EMPLOYMENT OR BY APPROPRIATE REGULATION FOR ALLOWANCE OF TRANSPORTATION TO AND FROM PLACE OF WORK AS PART OF THE COMPENSATION FOR THE EMPLOYMENT. SEE 5 COMP. GEN. 274, 19 ID. 71, 23 ID. 280.