B-129287, OCT. 26, 1956

B-129287, OCT. 26, 1956

TO MR. J. R. TETRAULT, DISBURSING OFFICER, DEPARTMENT OF THE NAVY:

YOUR LETTER OF AUGUST 9, 1956 (FILE A-310/RC:CB L10-5 SER:22583), TRANSMITTED HERE BY LETTER DATED SEPTEMBER 19, 1956 (FILE OIR 250:IB), FROM THE CHIEF OF INDUSTRIAL RELATIONS, REQUESTS OUR DECISION WHETHER PALO ALTO, CALIFORNIA, MAY BE CONSIDERED MR. JACKSON W. HUME'S ACTUAL RESIDENCE FOR HOME LEAVE TRAVEL EXPENSE PURPOSES.

IT IS NOT CLEAR FROM THE RECORD THAT YOU HAVE A VOUCHER BEFORE YOU FOR PAYMENT SO AS TO ENTITLE YOU TO AN ADVANCE DECISION. IN THIS INSTANCE, HOWEVER, WE WILL UNDERTAKE TO INFORM YOU OF OUR VIEWS CONCERNING THE MATTER IN QUESTION.

THE RECORD SHOWS THAT MR. HUME HAD RESIDED CONTINUOUSLY IN CALIFORNIA FROM 1911 TO OCTOBER 25, 1950, THE DATE HE WAS TRANSFERRED TO SHUMAKER, ARKANSAS, WHERE HE REMAINED UNTIL HE WAS TRANSFERRED TO WASHINGTON, D.C., ON AUGUST 11, 1952. HE REMAINED IN WASHINGTON, D.C., UNTIL DECEMBER 29, 1953, WHEN HE WAS TRANSFERRED OVERSEAS PURSUANT TO AN EMPLOYMENT AGREEMENT FOR OVERSEAS SERVICE. IT IS STATED THAT THE MATTER OF HIS RESIDENCE WAS NOT ONCE DISCUSSED WITH MR. HUME DURING HIS PROCESSING FOR SPAIN. SHORTLY BEFORE HIS DEPARTURE, HE WAS HANDED FOR SIGNATURE HIS EMPLOYMENT AGREEMENT WITH ALL INFORMATION, INCLUDING CLIFTON, VIRGINIA, AS PLACE OF "PERMANENT RESIDENCE" IN BLOCK I, ALREADY MIMEOGRAPHED ON IT. HOWEVER, MR. HUME'S STANDARD FORM 57 IN HIS OFFICIAL PERSONNEL JACKET ON FILE AT THE BUREAU SHOWED HIS RESIDENCE TO BE 3832 GROVE STREET, PALO ALTO, CALIFORNIA, AND FURTHER SHOWED HIS LEGAL AND VOTING RESIDENCE TO BE CALIFORNIA. ALSO, MR. HUME HAS HOUSEHOLD EFFECTS AND PERSONAL PROPERTY STORED IN PALO ALTO, CALIFORNIA; HE LIVED IN THE AREA OF PALO ALTO FROM 1925 UNTIL 1950; AND HIS MOTHER AND OTHER RELATIVES LIVE THERE. HE RESIDED IN CLIFTON, VIRGINIA, FOR ONLY TWO MONTHS OUT OF THE SIXTEEN THAT HE WAS STATIONED IN WASHINGTON, D.C.

THE ACT OF AUGUST 31, 1954, 68 STAT. 1008, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"* * * PROVIDED FURTHER, 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 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 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 NAVY CIVILIAN PERSONNEL INSTRUCTIONS, NCPI 240.4-1, COVERING TRAVEL OF EMPLOYEES APPOINTED FOR PERMANENT DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES PROVIDE, AS FOLLOWS:

"* * * THE TERM "ACTUAL RESIDENCE," AS USED IN THIS INSTRUCTION, IN CONNECTION WITH THE AUTHORITY TO PAY TRAVEL AND TRANSPORTATION EXPENSES UNDER SECTION 7 OF PUBLIC LAW 600, 79TH CONGRESS, AS AMENDED, GENERALLY MEANS THE PLACE AT WHICH THE EMPLOYEE PHYSICALLY RESIDED AT THE TIME OF HIS APPOINTMENT. ON THE OTHER HAND THE "ACTUAL RESIDENCE" MAY BE DETERMINED TO BE THE LEGAL RESIDENCE OR HOME OF THE EMPLOYEE WHICH MAY BE OTHER THAN THE PLACE OF APPOINTMENT. DETERMINATION SHOULD BE MADE AT THE TIME OF HIRE AND THE ACTUAL RESIDENCE OF THE EMPLOYEE SHOULD BE PLACED IN BLOCK I OF THE EMPLOYMENT AGREEMENT.'

AS WE STATED IN OUR DECISION OF AUGUST 24, 1955, B-124663, 35 COMP. GEN. 101, THE TERM "PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT OR TRANSFER" IS NOT DEFINED IN THE ACT OF AUGUST 31, 1954, AND NEITHER IS IT DEFINED IN THE REGULATIONS OF THE BUREAU OF THE BUDGET IMPLEMENTING THAT LAW. WHILE, IN MANY CASES, THE PLACE OF ACTUAL RESIDENCE AT THE TIME OF THE TRANSFER OVERSEAS FACTUALLY WOULD BE THE PLACE FROM WHICH TRANSFERRED, THE LAW DOES NOT RESTRICT THE PAYMENT OF HOME LEAVE TRAVEL EXPENSES TO THAT PLACE. THE PLACE CONSTITUTING THE "ACTUAL RESIDENCE" MUST BE DETERMINED UPON THE FACTS AND CIRCUMSTANCES IN EACH INDIVIDUAL CASE. THE RESPONSIBILITY FOR THAT DETERMINATION IS PRIMARILY AN ADMINISTRATIVE ONE.

IT IS CLEAR FROM THE QUOTED INSTRUCTIONS AND OUR DECISION THAT IT IS PRIMARILY THE RESPONSIBILITY OF THE DEPARTMENT OF THE NAVY TO DETERMINE THE EMPLOYEE'S "ACTUAL RESIDENCE.' THE INSTRUCTIONS PROVIDE FOR THE DETERMINATION TO BE MADE AT THE TIME OF HIRE AND FOR THE ENTRY OF THE PLACE OF ACTUAL RESIDENCE IN BLOCK I OF THE EMPLOYMENT AGREEMENT. IN VIEW OF THESE INSTRUCTIONS IT APPEARS THAT ORDINARILY (1) THE PLACE OF ACTUAL RESIDENCE SPECIFIED IN THE EMPLOYMENT AGREEMENT WOULD BE CONTROLLING AND THAT (2) IT WOULD BE NECESSARY TO CONSULT THE EMPLOYEE BEFORE A PROPER DETERMINATION CONCERNING HIS ACTUAL RESIDENCE COULD BE MADE. HOWEVER, WE FIND NOTHING IN THE INSTRUCTIONS SUGGESTING THAT WHERE IT IS LATER SHOWN THAT THE PLACE OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT OR TRANSFER, AS SPECIFIED IN BLOCK I OF THE EMPLOYMENT AGREEMENT, WAS NOT, IN FACT, THE ACTUAL PLACE OF RESIDENCE THAT A CORRECTION OF THE ERROR IS PRECLUDED.

ACCORDINGLY, AND SINCE THE EVIDENCE BEFORE US REASONABLY ESTABLISHES THAT THE ACTUAL RESIDENCE DESIGNATION IN BLOCK I OF THE EMPLOYMENT AGREEMENT WAS, IN FACT, ERRONEOUS AND THAT HIS ACTUAL RESIDENCE AT THE TIME OF EXECUTION OF THE AGREEMENT WAS PALO ALTO, CALIFORNIA, WE HAVE NO OBJECTION TO THE ADMINISTRATIVE DETERMINATION THAT PALO ALTO IS HIS ACTUAL RESIDENCE FOR HOME LEAVE TRAVEL EXPENSE PURPOSES.