B-127706, MAY 18, 1956, 35 COMP. GEN. 655

B-127706: May 18, 1956

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1956: REFERENCE IS MADE TO YOUR LETTER OF APRIL 17. WHICH ARE ADMINISTRATIVELY APPROVED. HE WAS APPOINTED TO A POSITION IN THE INTERNAL REVENUE SERVICE AT ANCHORAGE. YOUR DOUBT IN THE MATTER IS EXPLAINED AS FOLLOWS: THERE IS A QUESTION WHETHER A PERIOD OF SERVICE IN ANOTHER GOVERNMENT DEPARTMENT OVERSEAS IS TO BE CONSIDERED A MANDATORY CONDITION OF EMPLOYMENT AS PRESCRIBED BY STATUTE. PROVIDING OTHER APPLICABLE REQUIREMENTS OF LAW AND REGULATIONS HAVE BEEN MET. PROVIDES THAT THE EXPENSES OF RETURN TRAVEL AND TRANSPORTATION UPON SEPARATION SHALL BE ALLOWED WHETHER SUCH SEPARATION IS FOR THE PURPOSES OF THE GOVERNMENT OR FOR PERSONAL CONVENIENCE. OR UNLESS THE SEPARATION IS FOR REASONS BEYOND THE CONTROL OF THE INDIVIDUAL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED.

B-127706, MAY 18, 1956, 35 COMP. GEN. 655

TRAVELING EXPENSES - LEAVES OF ABSENCE - HOME LEAVE ACT - TRANSFERS AN EMPLOYEE WHO TRANSFERRED BETWEEN OVERSEAS AGENCIES AFTER COMPLETING A REQUIRED TWO-YEAR PERIOD OF SERVICE WITH THE FIRST AGENCY AND WHO SHORTLY AFTERWARD EXECUTED A NEW TWO-YEAR EMPLOYMENT AGREEMENT WITH THE SECOND AGENCY MAY BE ALLOWED THE HOME LEAVE TRAVEL AND TRANSPORTATION EXPENSES PROVIDED BY SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946.

TO CURTISS F. BARKER, INTERNAL REVENUE SERVICE, MAY 18, 1956:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 17, 1956, AND ENCLOSURES, FORWARDED HERE BY LETTER DATED APRIL 23, 1956, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, TREASURY DEPARTMENT, REQUESTING A DECISION AS TO THE PROPRIETY OF CERTIFYING FOR PAYMENT TWO TRANSMITTED VOUCHERS IN FAVOR OF RUSSELL L. HALE, AN INTERNAL REVENUE SERVICE EMPLOYEE STATIONED IN ANCHORAGE, ALASKA. THE VOUCHERS, WHICH ARE ADMINISTRATIVELY APPROVED, REPRESENT REIMBURSEMENT FOR ROUND-TRIP VACATION TRAVEL AND TRANSPORTATION EXPENSES OF MR. HALE AND HIS WIFE FROM ANCHORAGE, ALASKA, TO WASHINGTON, D.C.

MR. HALE, AFTER SATISFACTORILY COMPLETING TWO YEARS AND THREE MONTHS OF SERVICE IN ANCHORAGE, ALASKA, AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY UNDER A TWO-YEAR EMPLOYMENT AGREEMENT RESIGNED ON MARCH 9, 1955. THE FOLLOWING DAY, MARCH 10, 1955, HE WAS APPOINTED TO A POSITION IN THE INTERNAL REVENUE SERVICE AT ANCHORAGE; HE DID NOT ENTER INTO AN EMPLOYMENT AGREEMENT AT SUCH TIME. ON NOVEMBER 30, 1955, PRIOR TO RETURNING TO THE CONTINENTAL UNITED STATES FOR THE PURPOSE OF TAKING LEAVE, MR. HALE SIGNED A TWO-YEAR EMPLOYMENT AGREEMENT WITH THE INTERNAL REVENUE SERVICE. HE HAD BEEN APPOINTED TO HIS POSITION IN THE DEPARTMENT OF THE ARMY FROM WASHINGTON, D. C., AND HIS FORM 57 SHOWS VIRGINIA AS HIS LEGAL RESIDENCE.

YOUR DOUBT IN THE MATTER IS EXPLAINED AS FOLLOWS:

THERE IS A QUESTION WHETHER A PERIOD OF SERVICE IN ANOTHER GOVERNMENT DEPARTMENT OVERSEAS IS TO BE CONSIDERED A MANDATORY CONDITION OF EMPLOYMENT AS PRESCRIBED BY STATUTE, TO THE EFFECT THAT THE INTERNAL REVENUE SERVICE ASSUMES AT THE TIME OF LOCAL APPOINTMENT OR TRANSFER AT AN OVERSEAS STATION, AN OBLIGATION TO THE EMPLOYEE FOR "HOME LEAVE" AND/OR RETURN TRAVEL (IN CASE OF SEPARATION FROM GOVERNMENT SERVICE) EXPENSES TO THE CONTINENTAL UNITED STATES REGARDLESS OF THE PERIOD OF SERVICE IN THE TREASURY DEPARTMENT, PROVIDING OTHER APPLICABLE REQUIREMENTS OF LAW AND REGULATIONS HAVE BEEN MET.

SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 808, 5 U.S.C. 73B-3, AS AMENDED BY THE ACT OF SEPTEMBER 23, 1950, 64 STAT. 985, 5 U.S.C. 73B, PROVIDES THAT THE EXPENSES OF RETURN TRAVEL AND TRANSPORTATION UPON SEPARATION SHALL BE ALLOWED WHETHER SUCH SEPARATION IS FOR THE PURPOSES OF THE GOVERNMENT OR FOR PERSONAL CONVENIENCE; BUT THAT SUCH EXPENSES SHALL NOT BE ALLOWED UNLESS THE EMPLOYEE HAS SERVED OUTSIDE THE CONTINENTAL UNITED STATES FOR A MINIMUM PERIOD OF NOT LESS THAN ONE OR MORE THAN THREE YEARS PRESCRIBED IN ADVANCE, OR UNLESS THE SEPARATION IS FOR REASONS BEYOND THE CONTROL OF THE INDIVIDUAL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED. THE ACT OF AUGUST 31, 1954, 68 STAT. 1008, 5 U.S.C. 1084, FURTHER AMENDS SECTION 7 BY PROVIDING THAT THE EXPENSES OF ROUND-TRIP TRAVEL OF EMPLOYEES AND TRANSPORTATION OF IMMEDIATE FAMILY FROM POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO THE 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 PLACES OF RESIDENCE FOR THE PURPOSE OF TAKING LEAVE PRIOR TO SERVING ANOTHER TOUR OF OVERSEAS DUTY UNDER A NEW WRITTEN AGREEMENT ENTERED INTO BEFORE DEPARTING FROM THE OVERSEAS POST.

WE HAVE HELD THAT AN EMPLOYEE SERVING OUTSIDE THE UNITED STATES UNDER AN AGREEMENT FOR A PERIOD OF ONE TO THREE YEARS HAS A VESTED RIGHT, UNDER THE STATUTE, TO RETURN TRANSPORTATION INCIDENT TO SEPARATION UPON COMPLETION OF THE AGREED PERIOD OF SERVICE. 31 COMP. GEN. 683; 30 ID. 231. SUCH ENTITLEMENT IS NOT DEFEATED SOLELY BY REASON OF A TRANSFER BETWEEN AGENCIES WHILE OUTSIDE CONTINENTAL UNITED STATES AND, IN THE ABSENCE OF A NEW AGREEMENT WITH THE AGENCY TO WHICH TRANSFERRED, A TRANSFERRED EMPLOYEE IS ENTITLED TO THE EXPENSES OF TRAVEL AND TRANSPORTATION UPON SEPARATION TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE CONTINUED IN THE AGENCY IN WHICH ORIGINALLY EMPLOYED. SEE 31 COMP. GEN. 588; 26 ID. 554; 27 ID. 757. THUS, WE CONCLUDE THAT MR. HALE WOULD HAVE BEEN ENTITLED, ON THE BASIS OF HIS SERVICE WITH THE DEPARTMENT OF THE ARMY, TO TRAVEL AND TRANSPORTATION EXPENSES HAD HIS RETURN TO CONTINENTAL UNITED STATES BEEN INCIDENT TO SEPARATION FROM THE INTERNAL REVENUE SERVICE. THE LEGISLATIVE HISTORY OF THE ACT OF AUGUST 31, 1954, SHOWS THAT IT WAS INTENDED TO SUPPLY THE STATUTORY AUTHORITY WHICH WE HAVE HELD WAS NECESSARY FOR EMPLOYEES, WHO ARE ENTITLED TO RETURN TRANSPORTATION ON SEPARATION, TO BE ENTITLED TO RETURN TRAVEL AT GOVERNMENT EXPENSE WHEN SUCH TRAVEL IS PERFORMED FOR THE PURPOSE OF TAKING LEAVE. SENATE REPORT NO. 1944, 83D CONGRESS, 2D SESSION, PAGES 1 AND 2. CONSEQUENTLY, AND IN VIEW OF THE FACT THAT MR. HALE EXECUTED A TWO-YEAR EMPLOYMENT AGREEMENT WITH THE INTERNAL REVENUE SERVICE PRIOR TO DEPARTING ANCHORAGE, HE MAY BE ALLOWED ROUND-TRIP TRAVEL AND TRANSPORTATION EXPENSES TO CONTINENTAL UNITED STATES. THE COSTS OF SUCH TRAVEL CHARGEABLE TO THE GOVERNMENT MAY NOT EXCEED THE COST OF TRAVEL TO HIS ACTUAL PLACE OF RESIDENCE AT THE TIME OF APPOINTMENT OR TRANSFER TO HIS OVERSEAS POST OF DUTY. 35 COMP. GEN. 244.

THE VOUCHER, WHICH ARE RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT ACCORDINGLY, IF OTHERWISE CORRECT.