B-130055, FEB. 4, 1957

B-130055, FEB. 4, 1957

TO MR. N. M. TROUTWINE, AUTHORIZED CERTIFYING OFFICER, CIVIL AERONAUTICS ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 23, 1956, FORWARDED HERE BY LETTER DATED DECEMBER 5, 1956, FROM THE BUDGET AND FINANCE OFFICER, CIVIL AERONAUTICS ADMINISTRATION, REQUESTING AN ADVANCE DECISION AS TO WHETHER THE VOUCHER, TRANSMITTED THEREWITH FOR $976.04, STATED IN FAVOR OF ROBERT S. MCCLEMENT, PROPERLY MAY BE CERTIFIED FOR PAYMENT.

THE SUM CLAIMED REPRESENTS EXPENSES FOR PER DIEM IN LIEU OF SUBSISTENCE, AND FOR THE COST OF ROUND TRIP TRAVEL OF MR. MCCLEMENT AND HIS WIFE FROM HONOLULU, HAWAII, TO CHICAGO, ILLINOIS, DURING 1956 FOR THE PURPOSES OF TAKING HOME LEAVE. THE TRAVELERS ARE SHOWN TO HAVE UTILIZED COMMERCIAL AIR (COACH-TOURIST) TRANSPORTATION FROM HONOLULU TO CHICAGO, AND FROMLOS ANGELES TO HONOLULU, BUT THEIR JOURNEY BETWEEN CHICAGO AND LOS ANGELES WAS BY PRIVATELY-OWNED AUTOMOBILE FOR WHICH MILEAGE AT THE RATE OF EIGHT CENTS PER MILE HAS BEEN CLAIMED. WE NOTE THAT THE TRAVEL WAS PERFORMED WITHOUT PRIOR AUTHORIZATION FROM THE CIVIL AERONAUTICS ADMINISTRATION. HIS ORIGINAL REQUEST FOR HOME LEAVE TRAVEL TO CHICAGO, DATED MAY 30, 1956, WAS DECLINED ADMINISTRATIVELY FOR THE REASON THAT HE WAS HIRED IN HAWAII, AND ALTHOUGH HIS TRAVEL APPLICATION SHOWS HIS PERMANENT ADDRESS AS 2241 N. LEAVITT STREET, CHICAGO, HIS "APPLICATION FOR EMPLOYMENT" (FORM 57), SHOWS ,KAUAI, T. H., " AS HIS LEGAL OR VOTING RESIDENCE.

SECTION 7 OF THE ACT OF AUGUST 2, 1946 (60 STAT. 808), AS AMENDED BY THE ACT OF AUGUST 31, 1954 (68 STAT. 1008), READS, IN PERTINENT PART, AS FOLLOWS:

"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 ABOVE-QUOTED PROVISION--- IN OTHERWISE PROPER CASES--- PERMITS THE RETURN OF AN EMPLOYEE AND HIS IMMEDIATE FAMILY AT GOVERNMENT EXPENSE TO HIS PLACE OF ACTUAL RESIDENCE FOR THE PURPOSE OF TAKING LEAVE PRIOR TO SERVING ANOTHER TOUR OF DUTY OVERSEAS. THE TERM "PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT OR TRANSFER" IS NOT DEFINED IN THE STATUTE OR IN THE REGULATIONS RELATING THERETO. THE PLACE CONSTITUTING THE "ACTUAL RESIDENCE" MUST BE DETERMINED UPON THE FACTS AND CIRCUMSTANCES IN EACH INDIVIDUAL CASE. SEE 35 COMP. GEN. 270; ID. 244; 34 ID. 546; 29 ID. 526; B-125958 DATED DECEMBER 16, 1955.

THE FACTS AS REPORTED SHOW THAT MR. MCCLEMENT RESIDED IN CHICAGO FOR APPROXIMATELY 17 YEARS PRIOR TO HIS ENTRANCE INTO THE MILITARY SERVICE ON AUGUST 5, 1941. FOLLOWING HIS DISCHARGE FROM THE AIR FORCE ON DECEMBER 2, 1945, HE RESIDED IN CHICAGO, AND WAS THE RECIPIENT OF VETERANS' BONUS, STATE OF ILLINOIS. HE PROCEEDED TO HAWAII DURING APRIL 1946, FOR THE PURPOSE OF ENGAGING IN A PRIVATE BUSINESS VENTURE WHICH PROVED UNSUCCESSFUL. THE RECORD SHOWS THAT WHILE THE CLAIMANT WAS SELF-EMPLOYED IN HAWAII, HE WAS APPROACHED BY GOVERNMENT OFFICIALS TO ACCEPT THE POSITION WHICH HE NOW OCCUPIES. HIS EMPLOYMENT WITH THE CIVIL AERONAUTICS ADMINISTRATION APPEARS TO HAVE COMMENCED SEPTEMBER 19, 1949; HOWEVER, THE ENCLOSURES ACCOMPANYING YOUR LETTER DO NOT INDICATE WHETHER HE EXECUTED THE USUAL EMPLOYMENT-TRANSPORTATION AGREEMENT WHEN FIRST EMPLOYED BY YOUR ADMINISTRATION.

THE CLAIMANT, A REGISTERED VOTER IN THE STATE OF ILLINOIS UNTIL NOVEMBER 1949, ALLEGES THAT HIS EMPLOYMENT "ON KAUAI" WAS OF A TEMPORARY NATURE; THAT HE RETURNED TO THE MAINLAND DURING THE SUMMER OF 1953 AND SPENT AS MUCH OF HIS ANNUAL LEAVE AS POSSIBLE IN CHICAGO; THAT HE WOULD HAVE RETURNED TO HIS "HOME IN CHICAGO" IN 1949, HAD IT NOT BEEN FOR THE EMPLOYMENT OVERTURES MADE BY GOVERNMENT PERSONNEL; AND THAT JUST PRIOR TO ACCEPTING THE POSITION WITH YOUR AGENCY HE HAD ADDRESSED A COMMUNICATION TO THE MANAGER OF THE CONCERN WHERE HE PREVIOUSLY WAS EMPLOYED IN THE INTEREST OF OBTAINING REEMPLOYMENT. THE CLAIMANT EXPLAINS THAT THE CHICAGO ADDRESS ON HIS ORIGINAL APPLICATION FOR EMPLOYMENT (FORM 57) WAS CHANGED TO "KAUAI, T. H.' AT THE "INSISTENCE OF THE PERSONNEL DIVISION" AND THAT IT WAS HIS UNDERSTANDING THAT THE CHANGE WAS REQUIRED TO COMPLY WITH A CIVIL SERVICE APPORTIONMENT REGULATION.

WE NOTE THAT THE CLAIMANT EXECUTED A RENEWAL EMPLOYMENT AGREEMENT PRIOR TO HIS LAST DEPARTURE FOR THE MAINLAND. YOUR LETTER STATES THAT "MR. MCCLEMENT IS AN INDUSTRIOUS, CONSCIENTIOUS EMPLOYEE WHO IS RENDERING VALUABLE SERVICE TO YOUR OFFICE," AND THAT YOU ARE DESIROUS OF PAYING HIS CLAIM VOUCHER TO THE EXTENT ALLOWED BY LAW AND REGULATIONS. MOREOVER, THE STATEMENTS ACCOMPANYING YOUR LETTER SIGNED BY AGENCY OFFICIALS JAMES A. MCBRIDE AND JAMES A. GRADY, WHO INTERVIEWED THE CLAIMANT PRIOR TO HIS EMPLOYMENT BY THE GOVERNMENT, SUPPORT THE CLAIMANT'S VIEW THAT CHICAGO--- NOT KAUAI, T. H.--- WAS THE PLACE HE CONSIDERED TO BE HIS "HOME" OR "ACTUAL PLACE OF RESIDENCE.'

IN THE LIGHT OF THE FOREGOING FACTS, OUR OFFICE--- UPON APPROVAL OF THE TRAVEL BY PROPER AUTHORITY--- WOULD NOT BE REQUIRED TO OBJECT TO YOUR CERTIFYING THE VOUCHER FOR PAYMENT, IF CORRECT IN OTHER RESPECTS.