B-131043, MAY 2, 1957

B-131043: May 2, 1957

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HE WAS AUTHORIZED TO TRAVEL AT GOVERNMENT EXPENSE FROM MUNICH. THE RECORD SHOWS HOWEVER THAT THE ADMINISTRATIVE AGENCY WAS GOING TO INFORM HIM BY LETTER WHILE ON LEAVE AS TO HIS NEW ASSIGNMENT OVERSEAS. HE WAS ALSO AUTHORIZED TO REPORT TO THE WASHINGTON. WAS IN A CONSULTATION STATUS IN WASHINGTON FROM JANUARY 31 THROUGH FEBRUARY 2. HE WAS IN A LEAVE STATUS IN NEWTON CENTRE FROM FEBRUARY 4 THROUGH APRIL 9 AND WAS AGAIN IN A CONSULTATION STATUS IN WASHINGTON FROM APRIL 10 THROUGH APRIL 13. YOU SAY THAT THIS WAS BECAUSE THE ONLY NEW ASSIGNMENT OFFERED HIM WAS UNACCEPTABLE FOR PERSONAL REASONS. YOU CONTEND THAT SUCH ACTION WAS IMPROPER. 1 FSM IV 452.2 C AND D PROVIDE AS FOLLOWS: "HOME LEAVE MAY NOT BE GRANTED EXCEPT WHEN IT IS PLANNED THAT THE EMPLOYEE WILL RETURN TO A POST OF DUTY ABROAD.

B-131043, MAY 2, 1957

TO MRS. HERMINE HERTA MEYER, ATTORNEY AT LAW:

BY LETTER OF FEBRUARY 25, 1957, WRITTEN ON BEHALF OF YOUR CLIENT, MR. HERWIN SCHAEFER, YOU REQUESTED RECONSIDERATION OF OUR SETTLEMENT OF DECEMBER 12, 1956, WHICH DISALLOWED HIS CLAIM FOR SUMS TOTALING $1,077.90, ALLEGED TO BE DUE INCIDENT TO HIS EMPLOYMENT AS A FOREIGN SERVICE OFFICER WITH THE UNITED STATES INFORMATION AGENCY.

MR. SCHAEFER SERVED OVERSEAS FOR MORE THAN THREE YEARS AS A CULTURAL AFFAIRS OFFICER, FIRST WITH THE STATE DEPARTMENT, LATER WITH THE UNITED STATES INFORMATION AGENCY, STATIONED IN GERMANY. BY TRAVEL AUTHORIZATION DATED JANUARY 7, 1955, HE WAS AUTHORIZED TO TRAVEL AT GOVERNMENT EXPENSE FROM MUNICH, GERMANY, TO NEWTON CENTRE, MASSACHUSETTS, AND RETURN FOR THE PURPOSE OF AVAILING HIMSELF OF STATUTORY LEAVE. THE RECORD SHOWS HOWEVER THAT THE ADMINISTRATIVE AGENCY WAS GOING TO INFORM HIM BY LETTER WHILE ON LEAVE AS TO HIS NEW ASSIGNMENT OVERSEAS. HE WAS ALSO AUTHORIZED TO REPORT TO THE WASHINGTON, D. C., OFFICE OF THE AGENCY FOR CONSULTATION FOR APPROXIMATELY FIFTEEN WORKING DAYS, TO BE HELD IN PART OR FULL UPON ARRIVAL IN THE UNITED STATES OR AFTER COMPLETION OF THE STATUTORY LEAVE WHILE EN ROUTE BACK TO MUNICH, GERMANY. MR. SCHAEFER ARRIVED IN THE UNITED STATES ON JANUARY 28, 1955, AND WAS IN A CONSULTATION STATUS IN WASHINGTON FROM JANUARY 31 THROUGH FEBRUARY 2. HE WAS IN A LEAVE STATUS IN NEWTON CENTRE FROM FEBRUARY 4 THROUGH APRIL 9 AND WAS AGAIN IN A CONSULTATION STATUS IN WASHINGTON FROM APRIL 10 THROUGH APRIL 13. RESIGNED FROM THE SERVICE C.O.B. APRIL 13. YOU SAY THAT THIS WAS BECAUSE THE ONLY NEW ASSIGNMENT OFFERED HIM WAS UNACCEPTABLE FOR PERSONAL REASONS.

MR. SCHAEFER HAD ORIGINALLY BEEN CARRIED ON HOME LEAVE FOR THE PERIOD SPENT IN NEWTON CENTRE BUT AS A RESULT OF HIS RESIGNATION WITHOUT RETURN TO AN OVERSEAS POST OF DUTY, THE AGENCY SUBSTITUTED ACCRUED ANNUAL LEAVE, UNTIL EXHAUSTED, AND LEAVE-WITHOUT-PAY FOR SUCH PERIOD. YOU CONTEND THAT SUCH ACTION WAS IMPROPER.

1 FSM IV 452.2 C AND D PROVIDE AS FOLLOWS:

"HOME LEAVE MAY NOT BE GRANTED EXCEPT WHEN IT IS PLANNED THAT THE EMPLOYEE WILL RETURN TO A POST OF DUTY ABROAD, EITHER IMMEDIATELY OR UPON COMPLETION OF AN ASSIGNMENT IN THE UNITED STATES. IF AN EMPLOYEE HAS AVAILED HIMSELF OF HOME LEAVE IMMEDIATELY PRIOR TO SEPARATION FROM THE SERVICE, HE SHALL, UNLESS SPECIFICALLY EXEMPTED FROM THIS PROVISION BY THE CHIEF OF THE DIVISION OF FOREIGN SERVICE PERSONNEL HAVE SUCH LEAVE CHARGED AS ANNUAL LEAVE, IF AVAILABLE, OR AS LEAVE WITHOUT PAY, AND, IN THE LATTER CASE, COLLECTION PROCEEDINGS SHALL BE INSTITUTED FOR A REFUND OF THE SALARY PAYMENTS MADE FOR THE HOME LEAVE.

"HOME LEAVE MAY NOT BE USED AS TERMINAL LEAVE NOR BE PAID FOR IN A LUMP SUM UPON SEPARATION.'

AUTHORIZATION FOR HOME LEAVE GRANTED UNDER THE REFERRED-TO REGULATION IS CONDITIONED UPON AN EMPLOYEE NOT BEING SEPARATED FROM THE SERVICE IMMEDIATELY AFTER HAVING AVAILED HIMSELF THEREOF. WE VIEW A SEPARATION, SUCH AS HERE, WHICH OCCURRED AFTER A SHORT PERIOD OF CONSULTATION IN THE UNITED STATES FOLLOWING THE HOME LEAVE, AS A SEPARATION IMMEDIATELY AFTER HOME LEAVE. THUS MR. SCHAEFER'S RESIGNATION HAD THE EFFECT OF VITIATING HIS CONDITIONAL AUTHORIZATION FOR HOME LEAVE. CONSEQUENTLY, THE AGENCY'S ACTION WHICH WAS TAKEN PURSUANT TO THE REGULATION WAS PROPER.