B-128250, AUGUST 14, 1956, 36 COMP. GEN. 116

B-128250, AUGUST 14, 1956, 36 COMP. GEN. 116

TRANSPORTATION - DEPENDENTS - HOME LEAVE - JOINT TRAVEL OF EMPLOYEE AND HIS DEPENDENTS THE HOME LEAVE TRANSPORTATION PROVISION IN THE CENTRAL INTELLIGENCE AGENCY ACT OF 1949, WHICH AUTHORIZES PAYMENT OF TRAVEL EXPENSES OF THE FAMILY OF AN EMPLOYEE "ACCOMPANYING HIM ON AUTHORIZED HOME LEAVE," DOES NOT REQUIRE THE JOINT TRAVEL OF THE DEPENDENTS AND THE EMPLOYEE BUT ONLY THAT THE DEPENDENTS TRAVEL AFTER THE ISSUANCE OF TRAVEL ORDERS, AND AFTER THE DATE THE EMPLOYEE BECOMES ELIGIBLE FOR HOME LEAVE.

TO BESSIE N. ABBOTT, CENTRAL INTELLIGENCE AGENCY, AUGUST 14, 1956:

YOUR LETTER OF JUNE 12, 1956, REQUESTS OUR DECISION AS TO WHETHER YOU MAY CERTIFY FOR PAYMENT THE TWO ENCLOSED VOUCHERS FOR $211.86 AND $101 IN FAVOR OF JOHN R. PRICE AND WILLIAM H. WRIGHT, RESPECTIVELY. THE AMOUNTS COVERED BY THESE VOUCHERS REPRESENT DEPENDENTS - TRAVEL EXPENSES WHICH WERE DEDUCTED FROM THE ORIGINAL EXPENSE ACCOUNTS PRIOR TO CERTIFICATION FOR PAYMENT BECAUSE THE DEPENDENTS, TRAVELING UNDER HOME LEAVE ORDERS OF THE EMPLOYEES, ELECTED TO TRAVEL IN ADVANCE OF THE EMPLOYEES AT A TIME WHEN FARES WERE HIGHER THAN WHEN THE EMPLOYEES TRAVELED.

YOU SAY THAT TRAVEL ORDER DATED AUGUST 31, 1953, AUTHORIZED MR. PRICE TO TRAVEL ON OR ABOUT OCTOBER 15, 1953, FOR HOME LEAVE TO THE UNITED STATES AND INCLUDED AUTHORIZATION FOR TRAVEL OF HIS DEPENDENTS. MR. PRICE BECAME ELIGIBLE FOR HOME LEAVE ON OCTOBER 12, 1953. THE RECORD REFLECTS THAT THE DEPENDENTS OF MR. PRICE DEPARTED ON OCTOBER 29, 1953, BUT THAT THE EMPLOYEE DELAYED DEPARTURE (FOR REASONS NOT STATED) UNTIL NOVEMBER 9, 1953. "ON" SEASON RATES WERE IN EFFECT UNTIL NOVEMBER 1, 1953, AT WHICH TIME "OFF" SEASON, OR REDUCED RATES, WENT INTO EFFECT.

MR. WRIGHT'S TRAVEL ORDER, DATED SEPTEMBER 17, 1953, AUTHORIZED HOME LEAVE TRAVEL TO THE UNITED STATES ON OR ABOUT NOVEMBER 12, 1953, FOR HIMSELF AND HIS WIFE. MR. WRIGHT BECAME ELIGIBLE FOR HOME LEAVE ON NOVEMBER 1, 1953. MRS. WRIGHT DEPARTED ON OCTOBER 29, 1953, BUT MR. WRIGHT DELAYED DEPARTURE UNTIL DECEMBER 27, 1953. IN THIS INSTANCE, ALSO, EXCESS COSTS RESULTED FROM MRS. WRIGHT'S TRAVEL DURING THE "ON" SEASON.

SEPARATE TRAVEL WAS NOT SPECIFICALLY AUTHORIZED IN EITHER TRAVEL ORDER, ALTHOUGH THE REQUESTS FROM THE OVERSEAS OFFICE ASKED FOR APPROVAL OF SEPARATE TRAVEL OF THE DEPENDENTS.

SECTIONS 5 (A) (1) (B) AND 5 (A) (3) (A) OF THE CENTRAL INTELLIGENCE AGENCY ACT OF 1949, 63 STAT. 208, 50 U.S.C. 403E (A) (1) (A), (A) (3) (A), PROVIDE THAT:

(A) UNDER SUCH REGULATIONS AS THE DIRECTOR MAY PRESCRIBE, THE AGENCY, WITH RESPECT TO ITS OFFICERS AND EMPLOYEES ASSIGNED TO PERMANENT/DUTY STATIONS OUTSIDE THE CONTINENTAL UNITED STATES, ITS TERRITORIES, AND POSSESSIONS, SHALL---

(B) PAY THE TRAVEL EXPENSES OF MEMBERS OF THE FAMILY OF AN OFFICER OR EMPLOYEE OF THE AGENCY WHEN PROCEEDING TO OR RETURNING FROM HIS POST OF DUTY; ACCOMPANYING HIM ON AUTHORIZED HOME LEAVE; OR OTHERWISE TRAVELING IN ACCORDANCE WITH AUTHORITY GRANTED PURSUANT TO THE TERMS OF THIS OR ANY OTHER ACT;

(3) (A) ORDER TO THE UNITED STATES OR ITS TERRITORIES AND POSSESSIONS ON LEAVE PROVIDED FOR IN 5 U.S.C. 30, 30A, 30B (NOW CONTAINED IN CHAPTER 23 OF TITLE 5 U.S.C.), OR AS SUCH SECTIONS MAY HEREAFTER BE AMENDED, EVERY OFFICER AND EMPLOYEE OF THE AGENCY WHO WAS A RESIDENT OF THE UNITED STATES OR ITS TERRITORIES AND POSSESSIONS AT TIME OF EMPLOYMENT, UPON COMPLETION OF TWO YEARS' CONTINUOUS SERVICE ABROAD, OR AS SOON AS POSSIBLE THEREAFTER: * * * ( ITALICS AND MATTER IN BRACKETS SUPPLIED.)

PURSUANT TO THIS ACT, CIA REGULATION NO. 30-1A PROVIDES, AMONG OTHER THINGS, THAT TRAVEL AND TRANSPORTATION EXPENSES MAY BE PAID IN ACCORDANCE WITH THE FOREIGN SERVICE REGULATIONS AND AGENCY REGULATION, WHICH IS:

THE AGENCY WILL PAY THE TRAVEL EXPENSES OF OFFICERS AND EMPLOYEES OF THE AGENCY INCURRED WHILE TRAVELING PURSUANT TO ORDERS GRANTING HOME LEAVE. THE AGENCY WILL PAY THE TRAVEL EXPENSES OF MEMBERS OF THE FAMILY OF AN OFFICER OR EMPLOYEE OF THE AGENCY WHEN ACCOMPANYING HIM ON AUTHORIZED HOME LEAVE. ( ITALICS SUPPLIED.) HB 22-11-1, PAR. 35.

ALTHOUGH WE HAVE HAD OCCASION TO RENDER MANY DECISIONS CONCERNING THE TRANSPORTATION OF DEPENDENTS INCLUDING THOSE WHICH ARE CITED IN YOUR LETTER, 26 COMP. GEN. 864, 29 COMP. GEN. 160, 32 COMP. GEN. 194, WE HAVE NOT HAD BEFORE US THE CONSTRUCTION OF THE HOME LEAVE TRANSPORTATION PROVISION OF THE CENTRAL INTELLIGENCE AGENCY ACT OF 1949 NOR THE SUBSTANTIALLY IDENTICAL PROVISIONS IN SECTION 911 (2) OF THE FOREIGN SERVICE ACT OF 1946, 60 STAT. 1026, 22 U.S.C. 1136 (2), WHICH FIRST CONTAINED THE LANGUAGE "WHEN ACCOMPANYING HIM.' SOME INDICATION OF THE INTENT OF THE CONGRESS AS TO THIS LANGUAGE CAN BE ASCERTAINED FROM HOUSE REPORT NO. 2508, 79TH CONGRESS, 2D SESSION, BEGINNING AT PAGE 131. AFTER SETTING FORTH THE PRESENT SECTION 911, IT QUOTES THE THEN EXISTING LEGISLATION IN 22 U.S.C. 17 WHICH PROVIDED FOR PAYMENT OF DEPENDENTS' TRAVEL EXPENSES FOR HOME LEAVE OF EMPLOYEES "UNDER THE SAME RULES AND REGULATIONS APPLICABLE IN THE CASE OF OFFICERS AND EMPLOYEES GOING TO AND RETURNING FROM THEIR POSTS UNDER ORDERS OF THE SECRETARY OF STATE WHEN NOT ON LEAVE.' ( ACT OF MAY 24, 1924, CH. 182, SEC. 15, 43 STAT. 143; AS REDESIGNATED SECTION 22 AND AMENDED FEBRUARY 23, 1931, CH. 276, SEC. 7, 46 STAT. 1210; AND AMENDED MARCH 17, 1941, CH. 20, 55 STAT. 44.) THE REPORT CONTINUES AT PAGE 134:

SECTION 911, GENERALLY SPEAKING, PERPETUATES THE AUTHORITY TO PAY TRAVEL EXPENSES FOR THE FOREIGN SERVICE VESTED IN THE SECRETARY BY * * * THE DEPARTMENT OF STATE APPROPRIATION ACT, 1947, AND BY SIMILAR LANGUAGE IN EARLIER APPROPRIATION ACTS. (FOR DISCUSSION OF EARLIER ACTS, SEE 20 COMP. GEN. 325).

PARAGRAPHS (1), (2), AND (3) MERELY CONSTITUTE A RESTATEMENT OF EXISTING LAW AS CONTAINED IN THE LANGUAGE OF THE APPROPRIATION ACTS. (MATTER IN BRACKETS SUPPLIED.)

THE DEPARTMENT OF STATE APPROPRIATION ACT, 1947, 60 STAT. 446, PROVIDED IN PERTINENT PART AUTHORITY "TO PAY THE TRAVELING EXPENSES OF * * * FOREIGN SERVICE OFFICERS * * * AND UNDER SUCH REGULATIONS AS THE SECRETARY OF STATE MAY PRESCRIBE, OF THEIR FAMILIES * * * INCLUDING EXPENSES IN CONNECTION WITH LEAVES OF ABSENCE.'

NOTWITHSTANDING THE CHANGE IN LANGUAGE IN NEW ACT IT SEEMS CLEAR THAT CONGRESS DID NOT CONTEMPLATE ANY MAJOR CHANGE IN THE APPLICATION OF BENEFITS FOR DEPENDENTS IN HOME LEAVE SITUATIONS. THE TRAVEL REGULATIONS OF THE DEPARTMENT OF STATE, ISSUED BY THE SECRETARY OF STATE PURSUANT TO THE VARIOUS APPROPRIATION ACTS, PROVIDED IN NOTE 35, SUPPLEMENT E, CHAPTER V ISSUED APRIL 1939, AT PAGE 22, AS FOLLOWS:

THE EXPENSES OF THE FAMILY OF AN OFFICER OR EMPLOYEE ENTITLED TO TRANSPORTATION OF GOVERNMENT EXPENSE WILL BE ALLOWED * * * WHETHER THEY ACCOMPANY, OR FOLLOW, OR PRECEDE HIM, PROVIDED THEIR DEPARTURE IS SUBSEQUENT TO THE DATE OF HIS TRAVEL ORDER. SUCH EXPENSES WILL NOT BE ALLOWED, HOWEVER, WHERE THE MEMBERS OF THE FAMILY FOLLOWING HIM BEGIN THE JOURNEY LATER THAN SIX MONTHS AFTER THE DEPARTURE OF THE OFFICER OR EMPLOYEE, * * *

SIMILAR PROVISION IS CONTAINED IN THE CURRENT FOREIGN SERVICE TRAVEL REGULATIONS, 180 FSTR 3.61, DATED JUNE 29, 1953:

APPOINTMENT, TRANSFER, OR LEAVE AT GOVERNMENT EXPENSE

THE ACTUAL DEPARTURE OF THE EMPLOYEE UNDER APPROPRIATE TRAVEL AUTHORIZATION MAY BE DIRECTED BY ADMINISTRATIVE DETERMINATION. THE ACTUAL DEPARTURE OF ALL DEPENDENTS AND THE BEGINNING OF SHIPMENT OF ALL EFFECTS MAY TAKE PLACE ON OR AFTER THE DATE OF THE AUTHORIZATION BUT SHALL NOT BE DEFERRED MORE THAN 6 MONTHS AFTER THE EMPLOYEE COMPLETES HIS PERSONAL TRAVEL PURSUANT TO THE AUTHORIZATION. * * *

IN VIEW OF THE DEVELOPMENT OF THE RIGHT OF DEPENDENTS TO TRAVEL AT GOVERNMENT EXPENSE INCIDENT TO THE HOME LEAVE RIGHTS OF EMPLOYEES IN THE FOREIGN SERVICE, OUR OPINION IS THAT THE CONSTRUCTION OF THE PHRASE "ACCOMPANYING HIM" IN YOUR REGULATIONS AND IN THE CENTRAL INTELLIGENCE AGENCY ACT OF 1949, AS IT WAS ADOPTED FROM THE FOREIGN SERVICE ACT OF 1946, DOES NOT CONTEMPLATE THE JOINT TRAVEL OF AN EMPLOYEE AND HIS DEPENDENTS IN A PHYSICAL SENSE AS A CONDITION TO PAYMENT OF THE DEPENDENTS' EXPENSES BY THE GOVERNMENT.

ALTHOUGH WE UNDERSTAND THE PRESENT INTERPRETATION BY THE DEPARTMENT OF STATE OF 180 FSTR 3.61 IS THAT ANY TRAVEL OF DEPENDENTS AUTHORIZED PURSUANT THERETO IS PROPER IF PERFORMED AFTER THE DATE OF ISSUANCE OF THE EMPLOYEE'S TRAVEL ORDERS, WE BELIEVE THAT SOME MEANING SHOULD BE ACCORDED THE LANGUAGE "ACCOMPANYING HIM ON AUTHORIZED HOME LEAVE" APPEARING IN THE BASIC STATUTE. ACCORDINGLY, WE HOLD THAT SUCH TRAVEL IS PROPER ONLY IF, IN ADDITION TO BEING PERFORMED AFTER THE DATE OF THE TRAVEL ORDER, IT BE PERFORMED AFTER THE DATE OF ELIGIBILITY FOR TRAVEL BY THE EMPLOYEE.

YOUR LETTER MAKES REFERENCE TO THE ADVANCE TRAVEL PROVISIONS OF 180 FSTR 2.22 UNDER WHICH DEPENDENTS MAY BE ORDERED HOME AT GOVERNMENT EXPENSE FOR HUMANITARIAN REASONS. WE DO NOT THINK THAT SITUATION EXISTS IN THESE CASES.

THE TRAVEL OF THE DEPENDENTS OF MR. PRICE WAS SUBSEQUENT TO THE DATE OF HIS TRAVEL ORDER AS WELL AS AFTER THE DATE OF HIS ELIGIBILITY TO BE ORDERED HOME ON LEAVE OF ABSENCE. ALSO, THE ACCOMMODATIONS WHICH THEY USED WERE OF THE SAME CLASS AND KIND AUTHORIZED FOR THE RETURN OF MR. PRICE. ACCORDINGLY, THEIR TRAVEL WAS PROPER AND NO DEDUCTION NEED BE MADE FOR EXCESS COSTS OF TRAVEL DURING THE "ON" SEASON.

THE SEPARATE TRAVEL OF MRS. WRIGHT, ALTHOUGH SUBSEQUENT TO THE DATE OF MR. WRIGHT'S TRAVEL ORDER, WAS NOT SUBSEQUENT TO THE DATE OF HIS ELIGIBILITY FOR HOME LEAVE. SUCH TRAVEL WAS, THEREFORE, IN CONTEMPLATION OF BUT NOT PURSUANT TO THE EMPLOYEE'S TRAVEL UNDER THE STATUTE. CONSEQUENTLY, EXPENSES INCIDENT TO THIS TRAVEL SHOULD NOT HAVE BEEN PAID EXCEPT AS PROVIDED IN 29 COMP. GEN. 160 AND 30 COMP. GEN. 80, THAT IS, BY REIMBURSEMENT TO THE EMPLOYEE WHO HAS PAID SUCH EXPENSES FROM HIS PERSONAL FUNDS IN REASONABLE ANTICIPATION OF HIS OWN TRAVEL. IT FOLLOWS THAT THE BASIS FOR REIMBURSEMENT TO MR. WRIGHT FOR HIS WIFE'S TRAVEL IS LIMITED TO THE COST OF HER TRANSPORTATION HAD SHE TRAVELED IN ACCORDANCE WITH HIS AUTHORIZATION, OR DURING THE "OFF" SEASON, WHEN RATES WERE LOWER. ACCORDINGLY, THE ADMINISTRATIVE ACTION IN DEDUCTING $101 FROM THE ACCOUNT OF MR. WRIGHT WAS PROPER.

THE VOUCHERS ARE RETURNED HEREWITH FOR DISPOSITION IN ACCORDANCE WITH THIS DECISION.