B-131598, MAY 6, 1957

B-131598, MAY 6, 1957

TO THE SECRETARY OF AGRICULTURE:

ON APRIL 19, 1957, THE ADMINISTRATIVE ASSISTANT SECRETARY SUBMITTED FOR OUR DECISION THE CASE OF GILBERT RAY WARREN, AN EMPLOYEE OF THE AGRICULTURAL MARKETING SERVICE, WHO WAS TRANSFERRED FROM CARIBOU, MAINE, TO PEARL HARBOR, T.H., ON JUNE 25, 1953.

ON MARCH 31, 1956, MR. WARREN RETIRED FROM THE GOVERNMENT SERVICE AT WHICH TIME HE WAS 67 YEARS OF AGE AND HAD OVER 38 YEARS OF SERVICE. SUFFERED FROM AN INCURABLE CANCER AND RETIRED AT PEARL HARBOR IN ORDER TO RECEIVE MEDICAL TREATMENT IN HAWAII. MR. WARREN'S AGREEMENT WITH THE AGRICULTURE DEPARTMENT PROVIDED THAT UPON COMPLETION OF AT LEAST TWO YEARS OF DUTY HE AND HIS IMMEDIATE FAMILY AND HOUSEHOLD GOODS WOULD BE RETURNED TO HIS HOME AT CARIBOU, MAINE. ON FEBRUARY 27, 1957, HE WAS ISSUED TRAVEL AUTHORIZATION FOR HIS RETURN HOME, AND HE AND HIS WIFE MADE RESERVATIONS FOR THEIR RETURN TRAVEL BY AIR FOR APRIL 15, 1957. ON APRIL 8, MR. WARREN DIED OF A HEART ATTACK AT PEARL HARBOR. ON THE FOREGOING STATEMENT OF FACTS A DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

"1. MAY THE ACT OF JULY 8, 1940 (5 U.S.C. 103A) BE USED TO AUTHORIZE THE DEPARTMENT TO PAY THE EXPENSE OF PREPARING AND TRANSPORTING THE REMAINS OF THE DECEASED TO HIS HOME IN MAINE?

"2. IF THE ABOVE QUESTION IS ANSWERED IN THE NEGATIVE, DOES THE ADMINISTRATIVE EXPENSE ACT OF 1946 (5 U.S.C. 73) AUTHORIZE THE DEPARTMENT TO PAY THE COMMUTED RATE (CONSTRUCTIVE COST) OF TRANSPORTATION HAD DEATH NOT OCCURRED?

"3. IS PAYMENT OF THE FULL COSTS OF PREPARING AND TRANSPORTING THE REMAINS OF THE DECEASED HOME POSSIBLE UNDER ANY OTHER THEORY, SUCH AS THAT HE HAS A VESTED RIGHT UNDER HIS CONTRACT WITH THE GOVERNMENT TO HAVE HIS PERSON RETURNED UNDER THE ADMINISTRATIVE EXPENSE ACT OF 1946 (5 U.S.C. 73/? "

5. U.S.C. 103A. (A) PROVIDES:

"/A) IN CASE OF THE DEATH OF THE OFFICER OR EMPLOYEE IN SUCH TRAVEL STATUS IN THE UNITED STATES, OR IN THE CASE OF THE DEATH OF THE OFFICER OR EMPLOYEE WHILE PERFORMING OFFICIAL DUTIES IN A TERRITORY OR POSSESSION OF THE UNITED STATES OR IN A FOREIGN COUNTRY OR IN TRANSIT THERETO OR THEREFROM, THE EXPENSES OF PREPARING AND TRANSPORTING THE REMAINS OF SUCH OFFICER OR EMPLOYEE TO HIS HOME OR OFFICIAL STATION OR SUCH OTHER PLACE AS THE HEAD OF THE DEPARTMENT CONCERNED SHALL DETERMINE TO BE THE APPROPRIATE PLACE OF INTERMENT.'

5 U.S.C. 73/B/-3 AUTHORIZES THE TRANSPORTATION OF A NEW APPOINTEE AND HIS IMMEDIATE FAMILY AND HOUSEHOLD GOODS AND PERSONAL EFFECTS TO STATIONS OVERSEAS AND RETURN TRANSPORTATION IF THE EMPLOYEE SHALL HAVE SERVED A MINIMUM PERIOD OF NOT LESS THAN ONE YEAR PRESCRIBED IN ADVANCE BY THE HEAD OF THE DEPARTMENT CONCERNED.

IN THIS CASE IT APPEARS THAT MR. WARREN HAD RECEIVED HIS TRAVEL AUTHORIZATION WHILE A CIVILIAN EMPLOYEE, AND HAD INITIATED HIS RETURN TRAVEL BY MAKING THE AIR RESERVATIONS. IN THE CIRCUMSTANCES, AND SINCE HE APPARENTLY WAS AWAITING TRANSPORTATION FROM TIME OF RECEIVING HIS ORDERS, WE CONCLUDE THAT HE DIED "WHILE IN TRANSIT" THEREFROM WITHIN THE PURVIEW OF THE ABOVE QUOTED 5 U.S.C. 103A./A), AND PAYMENT MAY BE MADE ON THE BASIS OF THE EXPENSES AUTHORIZED BY THAT ..END :