B-125958, DEC. 16, 1955

B-125958: Dec 16, 1955

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CIVIL AERONAUTICS ADMINISTRATION: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 22. THE CLAIM IS BASED ON THE PROVISIONS OF PUBLIC LAW 737. FROM THEIR OVERSEAS POSTS OF DUTY "TO THE PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT OR TRANSFER * * * 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. THE RECORD SHOWS THAT THE EMPLOYEE'S REQUEST FOR SUCH A ROUND TRIP TRAVEL AUTHORIZATION FROM WAKE TO SAN FRANCISCO FOR "HOME LEAVE" WAS DECLINED ADMINISTRATIVELY BECAUSE HE WAS HIRED IN HAWAII WITHOUT BEING REQUIRED TO EXECUTE THE USUAL EMPLOYMENT AGREEMENT AND.

B-125958, DEC. 16, 1955

TO MR. CARL A. OLSON, AUTHORIZED CERTIFYING OFFICER, CIVIL AERONAUTICS ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 22, 1955, AND ENCLOSURES, FORWARDED HERE BY LETTER DATED OCTOBER 31, 1955, FROM THE CHIEF, ACCOUNTING DIVISION, CIVIL AERONAUTICS ADMINISTRATION, REQUESTING OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE VOUCHER, THEREWITH TRANSMITTED, IN FAVOR OF MR. J. VICTOR COX FOR $546.50. THAT AMOUNT REPRESENTS PER DIEM IN LIEU OF SUBSISTENCE, TAXI FARES, AND ROUND TRIP AIR TRANSPORTATION EXPENSES CLAIMED BY MR. COX INCIDENT TO HIS TRAVEL AND THAT OF WIFE FROM HIS OFFICIAL DUTY STATION, WAKE ISLAND, TO SAN FRANCISCO, CALIFORNIA, DURING THE PERIOD MAY 15 TO AUGUST 6, 1955, FOR THE PURPOSE OF TAKING ANNUAL LEAVE IN THE UNITED STATES.

THE CLAIM IS BASED ON THE PROVISIONS OF PUBLIC LAW 737, APPROVED AUGUST 31, 1954, 68 STAT. 1008. THAT ACT AMENDED SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT TO PROVIDE THAT EXPENSES OF ROUND TRIP TRAVEL OF EMPLOYEES AND TRANSPORTATION OF THEIR IMMEDIATE FAMILIES BUT EXCLUDING HOUSEHOLD EFFECTS, FROM THEIR OVERSEAS POSTS OF DUTY "TO THE PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT OR TRANSFER * * * 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.'

THE RECORD SHOWS THAT THE EMPLOYEE'S REQUEST FOR SUCH A ROUND TRIP TRAVEL AUTHORIZATION FROM WAKE TO SAN FRANCISCO FOR "HOME LEAVE" WAS DECLINED ADMINISTRATIVELY BECAUSE HE WAS HIRED IN HAWAII WITHOUT BEING REQUIRED TO EXECUTE THE USUAL EMPLOYMENT AGREEMENT AND, AT THAT TIME, IN HIS APPLICATION (STANDARD FORM 57) HE HAD INDICATED HAWAII AS HIS LEGAL AND VOTING RESIDENCE. HOWEVER, MR. COX INSISTS THAT HIS ACTUAL RESIDENCE WAS IN SAN FRANCISCO IN 1947 PRIOR TO GOING TO HIS PRIVATE EMPLOYMENT IN HONOLULU, AS WELL AS PRIOR TO ACCEPTING FEDERAL EMPLOYMENT IN NOVEMBER 1950, AND THAT HIS ACTUAL RESIDENCE STILL IS IN CALIFORNIA TO WHICH IT APPEARS HIS PRIVATE EMPLOYER WOULD HAVE RETURNED HIM IN NOVEMBER 1950 HAD HE NOT ENTERED THE SERVICE OF THE UNITED STATES.

WHILE IT MAY BE, AS SUGGESTED IN THE LETTER OF OCTOBER 31, 1955, THAT MR. COX WOULD BE ENTITLED TO CERTAIN LEAVE BENEFITS AND TRAVEL TIME UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, THE PROVISIONS OF THAT ACT AND THE REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION THEREUNDER DO NOT CONTROL IN TRANSPORTATION QUESTIONS SUCH AS HERE INVOLVED.

THE TERM "ACTUAL RESIDENCE" IS NOT DEFINED IN PUBLIC LAW 737 OR IN THE REGULATIONS ISSUED BY THE BUREAU OF THE BUDGET THEREUNDER AND IS FOR DETERMINATION FROM THE FACTS IN EACH CASE. ANY REASONABLE ADMINISTRATIVE DETERMINATION THEREOF IN A GIVEN CASE ORDINARILY WILL NOT BE QUESTIONED BY OUR OFFICE. WHILE THE EMPLOYEE AND HIS WIFE IN THIS CASE PERFORMED THE TRAVEL BY AIR WITHOUT PRIOR AUTHORIZATION, YOU SAY THE EMPLOYEE DID EXECUTE THE NEW WRITTEN AGREEMENT, REQUIRED BY LAW, BY WHICH HE WILL BE BOUND IF A RULING IS MADE IN HIS FAVOR. THUS, IT APPEARS THE CONDITIONS OF THE APPLICABLE LAW AND REGULATIONS WILL HAVE BEEN SATISFIED UPON AN APPROPRIATE ADMINISTRATIVE DETERMINATION OF ACTUAL RESIDENCE IN CALIFORNIA AND AN APPROPRIATE APPROVAL OF THE VOUCHER. SEE, GENERALLY, 29 COMP. GEN. 526; 30 ID. 231; 32 ID. 183. A COPY OF THE LAST-CITED DECISION, B-111958, DATED OCTOBER 16, 1952, IS ENCLOSED. REGARDING YOUR REFERENCE TO DECISIONS, B-123411 AND B 122796, 34 COMP. GEN. 540, AND 546, RESPECTIVELY, YOUR ATTENTION ALSO IS INVITED TO THE MORE RECENT PUBLISHED DECISIONS ON A RELATED AND SIMILAR QUESTION, B-122796, DATED NOVEMBER 4, 1955, AND B-125293, DATED OCTOBER 28, 1955, COPIES OF WHICH ARE ALSO BEING ENCLOSED.

ACCORDINGLY, UPON APPROVAL OF THE TRAVEL BY PROPER AUTHORITY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.