B-129995, FEBRUARY 5, 1957, 36 COMP. GEN. 577

B-129995, FEBRUARY 5, 1957, 36 COMP. GEN. 577

OVERSEAS EMPLOYEES - TRANSPORTATION OF DEPENDENTS - RETURN OF DEPENDENT FOR PERSONAL REASONS UPON AN ADMINISTRATIVE DETERMINATION THAT THE RETURN TRANSPORTATION OF THE WIFE OF AN OVERSEAS EMPLOYEE AT THE TIME OF THE DEATH OF HER SISTER-IN -LAW IS REQUIRED IN THE PUBLIC INTEREST FOR A COMPELLING PERSONAL REASON OF A HUMANITARIAN OR COMPASSIONATE NATURE, PAYMENT OF THE DEPENDENT'S ONE- WAY TRAVEL COSTS IS PROPER; HOWEVER, PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE INCIDENT TO THE TRANSPORTATION IS NOT PROPER.

TO WILLIAM L. NORFOLK, NATIONAL LABOR RELATIONS BOARD, FEBRUARY 5, 1956:

ON DECEMBER 5, 1956, YOU REQUESTED OUR DECISION CONCERNING THE PROPRIETY OF CERTIFYING FOR PAYMENT A VOUCHER IN FAVOR OF THE PAN AMERICAN WORLD AIRWAYS, INC., FOR TRANSPORTATION FURNISHED THE WIFE OF MR. SALVATORE COSENTINO, REGIONAL DIRECTOR FOR THE NATIONAL LABOR RELATIONS BOARD, SANTURCE, PUERTO RICO, UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER SET FORTH.

THE PURPOSE AND JUSTIFICATION FOR THE TRANSPORTATION IS DESCRIBED IN YOUR LETTER AS FOLLOWS:

MY WIFE'S SISTER-IN-LAW DIED AT CHILD-BIRTH UNDER PARTICULARLY DISTRESSING CIRCUMSTANCES. SHE LEFT A TWO YEAR OLD MOTHERLESS CHILD. WIFE'S BROTHER HAD MARRIED HIS WIFE, A RESIDENT OF MEXICO CITY, MEXICO SEVERAL YEARS AGO AND WAS LIVING WITH HER IN CHICAGO. MY WIFE WAS INFORMED BY INTERNATIONAL CALL AT THE TIME OF THE DEATH OF HER SISTER-IN- LAW THAT BOTH HER PARENTS HAD RECEIVED A VERY BAD SHOCK. MY WIFE'S PARENTS ARE QUITE ELDERLY, BOTH NEARING THEIR 80TH BIRTHDAY. MY WIFE'S MOTHER PARTICULARLY IS A FRAIL SEMI-INVALID. MY WIFE IS THE ONLY DAUGHTER AND ONLY MEMBER OF HER FAMILY AVAILABLE. AS SUBSEQUENT EVENTS DEMONSTRATED IT WAS IMPERATIVE THAT MY WIFE BE AT HER MOTHER'S SIDE DURING THIS SHOCKING ORDEAL. HER MOTHER REQUIRED PSYCHIATRIC SHOCK THERAPY AND STILL REMAINS UNDER THE CARE OF DR. WARREN G. MCPHERSON. THE MOTHERLESS CHILD WAS ALSO TO BE TAKEN CARE OF AS HER BROTHER TRANSPORTED HIS WIFE'S CORPSE BACK TO MEXICO CITY (WHERE THE FAMILY OF THE DECEASED RESIDES) FOR BURIAL PURPOSES.

THE ACT OF AUGUST 31, 1954, 68 STAT. 1008, 5 U.S.C. 73B-3, IS, IN PERTINENT PART, AS FOLLOWS:

PROVIDED FURTHER, THAT EXPENSES OF TRANSPORTATION OF THE IMMEDIATE FAMILY AND SHIPMENT OF HOUSEHOLD EFFECTS OF ANY EMPLOYEE FROM THE POST OF DUTY OF SUCH EMPLOYEE OUTSIDE CONTINENTAL UNITED STATES TO PLACE OF ACTUAL RESIDENCE SHALL BE ALLOWED, NOT IN EXCESS OF ONE TIME, PRIOR TO THE RETURN OF SUCH EMPLOYEE TO THE UNITED STATES, INCLUDING ITS TERRITORIES AND POSSESSIONS, WHEN THE EMPLOYEE HAS ACQUIRED ELIGIBILITY FOR SUCH TRANSPORTATION OR WHEN THE PUBLIC INTEREST REQUIRES THE RETURN OF THE IMMEDIATE FAMILY FOR COMPELLING PERSONAL REASONS OF A HUMANITARIAN OR COMPASSIONATE NATURE, SUCH AS MAY INVOLVE PHYSICAL OR MENTAL HEALTH, DEATH OF ANY MEMBER OF THE IMMEDIATE FAMILY, OR OBLIGATION IMPOSED BY AUTHORITY OR CIRCUMSTANCES OVER WHICH THE INDIVIDUAL HAS NO CONTROL: * * *

SECTION 28 OF THE REGULATIONS PROMULGATED BY THE DIRECTOR, BUREAU OF THE BUDGET, IMPLEMENTING THE ACT OF AUGUST 31, 1954, BUBUD CIRCULAR NO. A-4, DATED MAY 2, 1955, READS:

AN EMPLOYEE SHALL BE ALLOWED ONE-WAY TRANSPORTATION EXPENSES FOR RETURNING HIS IMMEDIATE FAMILY AND HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS FROM HIS POST OF DUTY OVERSEAS TO THE PLACE OF HIS ACTUAL RESIDENCE IN THE CONTINENTAL UNITED STATES, ITS TERRITORIES, OR POSSESSIONS PRIOR TO THE EMPLOYEE'S RETURN THERETO (A) WHEN THE EMPLOYEE HAS ACQUIRED ELIGIBILITY FOR RETURN TRANSPORTATION BY SATISFACTORILY COMPLETING AN AGREED-UPON PERIOD OF SERVICE, OR (B) WHEN, UNDER REGULATIONS PRESCRIBED BY THE HEAD OF THE DEPARTMENT CONCERNED, IT IS DETERMINED THAT THE PUBLIC INTEREST REQUIRES THE RETURN OF THE IMMEDIATE FAMILY FOR COMPELLING PERSONAL REASONS OF A HUMANITARIAN OR COMPASSIONATE NATURE, SUCH AS MAY INVOLVE PHYSICAL OR MENTAL HEALTH, DEATH OF ANY MEMBER OF THE IMMEDIATE FAMILY, OR OBLIGATIONS IMPOSED BY AUTHORITY OR CIRCUMSTANCES OVER WHICH THE INDIVIDUAL HAS NO CONTROL. * * *

WE UNDERSTAND THAT THE INSTRUCTIONS PROMULGATED BY THE NATIONAL LABOR RELATIONS BOARD DO NOT SPECIFICALLY DEFINE THE CLASS OF CASES WERE THE PUBLIC INTEREST REQUIRES THE RETURN OF THE IMMEDIATE FAMILY FOR COMPELLING REASONS OF A HUMANITARIAN OR COMPASSIONATE NATURE. HOWEVER, UPON INFORMAL INQUIRY WE HAVE RECEIVED INFORMATION THAT THE BOARD WILL APPROVE THE TRANSPORTATION OF MRS. COSENTINO AS IN THE PUBLIC INTEREST UNLESS WE SHOULD RULE THAT HER CASE DOES NOT COME WITHIN THE QUOTED STATUTORY PROVISION.

THE TERM,"IMMEDIATE FAMILY," AS DEFINED IN EXECUTIVE ORDER NO. 9805, NOVEMBER 25, 1946, AS AMENDED, EXPRESSLY EXCLUDES THE PARENTS OF THE SPOUSE OF AN EMPLOYEE. HOWEVER, THE LANGUAGE IN THE SECOND PROVISO QUOTED ABOVE, FOLLOWING THE TERM "SUCH AS," IS CONSTRUED AS DESCRIPTIVE ONLY AND NOT AS A LIMITATION UPON THE AUTHORITY OF AN ADMINISTRATOR TO ALLOW TRANSPORTATION EXPENSES WHEN HE DETERMINES THAT "THE PUBLIC INTEREST REQUIRES THE RETURN OF THE IMMEDIATE FAMILY FOR COMPELLING PERSONAL REASONS OF A HUMANITARIAN OR COMPASSIONATE NATURE.' SEE PAGE 31, HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON GOVERNMENT OPERATIONS, HOUSE OF REPRESENTATIVES, 83D CONGRESS, 2D SESSION, ON H.R. 179. ACCORDINGLY, IF THE APPROPRIATE OFFICIAL OF THE NATIONAL LABOR RELATIONS BOARD--- WHO, WE HAVE BEEN ADVISED INFORMALLY, IS THE DIRECTOR, DIVISION OF ADMINISTRATION- -- DETERMINES THAT THE PUBLIC INTEREST REQUIRED THE RETURN OF MRS. COSENTINO FROM SAN JUAN TO CHICAGO FOR A COMPELLING PERSONAL REASON OF A HUMANITARIAN OR COMPASSIONATE NATURE, WE WILL RAISE NO OBJECTION TO THE PAYMENT OF HER ONE-WAY TRANSPORTATION COSTS (INCLUDING TAXICAB FARES TO AND FROM TERMINALS) BETWEEN SUCH POINTS.

UNDER THE SECOND PROVISO OF THE ACT OF AUGUST 31, 1954, ONE-WAY TRANSPORTATION ONLY IS AUTHORIZED AND THE EMPLOYEE IS REQUIRED TO BEAR THE EXPENSE OF HIS WIFE'S RETURN TRANSPORTATION FROM CHICAGO TO SAN JUAN. THE AMOUNT INVOLVED SHOULD BE COLLECTED. MOREOVER, SINCE PUBLIC LAW 737 AUTHORIZES THE PAYMENT OF TRANSPORTATION EXPENSES ONLY ON ACCOUNT OF DEPENDENTS' TRAVEL, THERE IS NO PROPER BASIS UPON WHICH PER DIEM IN LIEU OF SUBSISTENCE WOULD BE PAYABLE INCIDENT TO THE TRANSPORTATION HERE INVOLVED.

IN ANSWER TO YOUR FURTHER QUESTION CONCERNING THE EFFECT OF THE EMERGENCY TRANSPORTATION FURNISHED MRS. COSENTINO UPON HER RIGHT TO RETURN TRANSPORTATION WITHOUT EXPENSE TO HER HUSBAND WHEN HE RETURNS ON "REEMPLOYMENT LEAVE," WE RULED IN OUR DECISION OF JULY 5, 1956, B 127919, 36 COMP. GEN. 10, THAT RETURN TRANSPORTATION ALLOWED A MEMBER OF AN EMPLOYEE'S IMMEDIATE FAMILY FOR HUMANITARIAN OR COMPASSIONATE REASONS PRECLUDES THE ALLOWANCE OF FURTHER RETURN TRANSPORTATION FOR THAT MEMBER WHEN THE EMPLOYEE RETURNS ON REEMPLOYMENT LEAVE INCIDENT TO COMPLETION OF HIS TOUR OF DUTY.

REGARDING THE VOUCHER TRANSMITTED WITH YOUR LETTER, THE TARIFFS ON FILE IN OUR OFFICE SHOW THAT ON OCTOBER 14, 1956, THE ROUND-TRIP COACH (TOURIST) FARE FOR THE TRANSPORTATION FURNISHED WAS $186.60 AND ACCORDINGLY THE VOUCHER PROPERLY MAY BE CERTIFIED FOR PAYMENT ONLY IN THAT AMOUNT.