B-134287, JANUARY 31, 1958, 37 COMP. GEN. 502

B-134287: Jan 31, 1958

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TRAVEL EXPENSES - OVERSEAS EMPLOYEES - FAILURE TO FULFILL CONTRACT - AFTER HOME LEAVE - TRAVEL AND TRANSPORTATION CREDIT ADJUSTMENT OVERSEAS EMPLOYEES WHO ARE INDEBTED FOR HOME LEAVE TRAVEL AND TRANSPORTATION OF DEPENDENTS WHEN THEY RESIGN SHORTLY AFTER THEIR RETURN TO DUTY FROM HOME LEAVE ARE ENTITLED TO HAVE THE DEBT ADJUSTED. HOUSEHOLD EFFECTS FROM THE POST OF DUTY AT WHICH THE SERVICES PRIOR TO HOME LEAVE WERE COMPLETED TO PLACE OF RESIDENCE. ENTITLEMENT TO THIS CREDIT ADJUSTMENT IS NOT AFFECTED BY THE EMPLOYEE'S ELECTION TO REMAIN OVERSEAS. IF THE CREDIT IS LESS THAN THE DEBT. THE BALANCE IS FOR PAYMENT. IF THE CREDIT IS MORE THAN THE DEBT. THE BALANCE MAY BE APPLIED TO THE RETURN TRAVEL AND TRANSPORTATION COST FOR WHICH THE EMPLOYEE IS RESPONSIBLE FOR FAILURE TO COMPLETE THE TOUR OF DUTY.

B-134287, JANUARY 31, 1958, 37 COMP. GEN. 502

TRAVEL EXPENSES - OVERSEAS EMPLOYEES - FAILURE TO FULFILL CONTRACT - AFTER HOME LEAVE - TRAVEL AND TRANSPORTATION CREDIT ADJUSTMENT OVERSEAS EMPLOYEES WHO ARE INDEBTED FOR HOME LEAVE TRAVEL AND TRANSPORTATION OF DEPENDENTS WHEN THEY RESIGN SHORTLY AFTER THEIR RETURN TO DUTY FROM HOME LEAVE ARE ENTITLED TO HAVE THE DEBT ADJUSTED, PURSUANT TO SECTION 27 (D) (1) OF EXECUTIVE ORDER NO. 9805 AS ADDED BY BUREAU OF THE BUDGET CIRCULAR A-4, BY APPLICATION OF A CREDIT IN AN AMOUNT EQUAL TO THE COST OF RETURNING THE EMPLOYEE, DEPENDENTS, AND HOUSEHOLD EFFECTS FROM THE POST OF DUTY AT WHICH THE SERVICES PRIOR TO HOME LEAVE WERE COMPLETED TO PLACE OF RESIDENCE, AND ENTITLEMENT TO THIS CREDIT ADJUSTMENT IS NOT AFFECTED BY THE EMPLOYEE'S ELECTION TO REMAIN OVERSEAS; HOWEVER, IF THE CREDIT IS LESS THAN THE DEBT, THE BALANCE IS FOR PAYMENT, AND IF THE CREDIT IS MORE THAN THE DEBT, THE BALANCE MAY BE APPLIED TO THE RETURN TRAVEL AND TRANSPORTATION COST FOR WHICH THE EMPLOYEE IS RESPONSIBLE FOR FAILURE TO COMPLETE THE TOUR OF DUTY, PROVIDED TRAVEL IS PERFORMED INCIDENT TO SEPARATION AND WITHIN A REASONABLE TIME. OVERSEAS EMPLOYEES WHO, FOLLOWING RETURN TO POST OF DUTY FROM HOME LEAVE, ACCEPT PRIVATE EMPLOYMENT OVERSEAS PRIOR TO COMPLETION OF THE NEW TOUR OF DUTY MAY NOT HAVE ANY EARNED TRANSPORTATION CREDIT APPLIED TO SUBSEQUENT RETURN TRAVEL AND TRANSPORTATION EXPENSES IF RETURN TRAVEL IS NOT PERFORMED INCIDENT TO SEPARATION FROM GOVERNMENT SERVICE AND WITHIN A REASONABLE TIME AFTER DATE OF SEPARATION.

TO THE SECRETARY OF DEFENSE, JANUARY 31, 1958:

ON OCTOBER 31, 1957, THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTED OUR DECISION TO CLARIFY THE PROVISIONS OF SECTION 27 (D) (1), EXECUTIVE ORDER NO. 9805, AS AMENDED, REGARDING THE AVAILABILITY OF EARNED UNUSED TRANSPORTATION ENTITLEMENT FOR OFFSETTING TRANSPORTATION INDEBTEDNESS AND ITS LIMITATIONS FOR TRANSPORTATION PURPOSES UNDER CERTAIN CONDITIONS.

THE ASSISTANT SECRETARY SAYS THAT THE PROVISION REGARDING OFFSETTING THE TRANSPORTATION INDEBTEDNESS DOES NOT INDICATE THAT THE DEBT LIQUIDATION PROCEDURE IS CONTINGENT UPON SUBSEQUENT ACTION BY THE EMPLOYEE CONCERNED BUT THAT IT IS CLEAR THAT ENTITLEMENT TO ANY REMAINING TRANSPORTATION ELIGIBILITY IS CONTINGENT UPON THE ACTUAL PERFORMANCE OF TRAVEL OR THE SHIPMENT OF EFFECTS. HE SAYS THAT INSTANCES WILL OCCUR WHEN AN EMPLOYEE HAS EARNED UNUSED TRANSPORTATION ENTITLEMENT AND IS INDEBTED FOR TRANSPORTATION EXPENSES AT THE TIME OF SEPARATION, BUT, BECAUSE OF LIMITED PERSONAL FUNDS, THE EMPLOYEE MAY OBTAIN TRANSPORTATION ONLY FOR HIS DEPENDENTS OR HOUSEHOLD GOODS, OR MAY REMAIN INDEFINITELY IN THE OVERSEA AREA WITHOUT EFFECTING ANY TRAVEL OR TRANSPORTATION.

THE ASSISTANT SECRETARY PRESENTS THE FOLLOWING AS AN EXAMPLE OF THE TYPE OF SITUATION ON WHICH QUESTIONS HAVE ARISEN:

AN EMPLOYEE COMPLETED A PRESCRIBED PERIOD OF SERVICE IN ALASKA. HE WAS ORIGINALLY RECRUITED FROM AND HAD RETURN TRANSPORTATION ENTITLEMENT TO HIS PLACE OF ACTUAL RESIDENCE IN TEXAS. HE SIGNED A NEW TRANSPORTATION AGREEMENT AND WAS AUTHORIZED ROUND TRIP REEMPLOYMENT TRAVEL BETWEEN HIS OFFICIAL DUTY STATION IN ALASKA AND HIS HOME IN TEXAS. HIS DEPENDENTS ACCOMPANIED HIM ON THE ROUND TRIP.

WITHIN TWO MONTHS AFTER HIS RETURN TO ALASKA HE VOLUNTARILY RESIGNED TO ACCEPT LOCAL PRIVATE EMPLOYMENT IN ALASKA. THIS ACTION MADE HIM INDEBTED TO THE GOVERNMENT FOR THE EXPENSE OF TRANSPORTATION FROM TEXAS TO ALASKA (THE RETURN LEG OF THE ROUND TRIP REEMPLOYMENT TRAVEL).

THE EMPLOYING INSTALLATION USED A PORTION OF THE CONSTRUCTIVE EARNED UNUSED TRANSPORTATION ENTITLEMENT (TRANSPORTATION OF HOUSEHOLD GOODS EARNED UPON COMPLETION OF THE IMMEDIATELY PRIOR PERIOD OF SERVICE) TO OFFSET THE INDEBTEDNESS. THE CONSTRUCTIVE EARNED UNUSED TRANSPORTATION ENTITLEMENT WAS APPROXIMATELY $2,400. THE AMOUNT OF INDEBTEDNESS WAS APPROXIMATELY $709.

EIGHTEEN MONTHS AFTER THE EMPLOYEE SEPARATED HE REQUESTED TRANSPORTATION AUTHORIZATION FOR HIS DEPENDENTS AND HOUSEHOLD GOODS TO THE EXTENT OF THE REMAINING EARNED TRANSPORTATION CREDIT AT THE TIME OF HIS SEPARATION.

HE RAISES THE FOLLOWING QUESTIONS FOR THE PURPOSE OF CLARIFYING THE EMPLOYEE'S ENTITLEMENT:

1. MAY THE EARNED UNUSED TRANSPORTATION ENTITLEMENT CONSTRUCTIVE AMOUNT BE USED TO OFFSET TRANSPORTATION INDEBTEDNESS AT THE TIME OF SEPARATION WITHOUT REGARD TO ANY SUBSEQUENT ACTION BY THE EMPLOYEE CONCERNED?

2. TO WHAT EXTENT IS AN EMPLOYEE'S EARNED TRANSPORTATION ENTITLEMENT AFFECTED FOR TRANSPORTATION PURPOSES IF THE EMPLOYEE ACCEPTS PRIVATE EMPLOYMENT OVERSEAS IN LIEU OF RETURNING TO HIS PLACE OF ACTUAL RESIDENCE OR FAILS TO EFFECT TRAVEL OR TRANSPORTATION WITHIN A REASONABLE TIME AFTER THE DATE OF SEPARATION?

SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 808, AS AMENDED BY THE ACT OF SEPTEMBER 23, 1950, 64 STAT. 985, 5 U.S.C. 73B 3, PROVIDES THAT THE EXPENSES OF RETURN TRAVEL AND TRANSPORTATION UPON SEPARATION SHALL BE ALLOWED WHETHER SUCH SEPARATION IS FOR PURPOSES OF THE GOVERNMENT OR FOR PERSONAL CONVENIENCE; BUT THAT SUCH EXPENSES SHALL NOT BE ALLOWED UNLESS THE EMPLOYEE HAS SERVED OUTSIDE THE UNITED STATES FOR A MINIMUM PERIOD OF NOT LESS THAN ONE YEAR NOR MORE THAN THREE YEARS PRESCRIBED IN ADVANCE, OR UNLESS THE SEPARATION IS FOR REASONS BEYOND THE CONTROL OF THE INDIVIDUAL OR ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED. IN 30 COMP. GEN. 231, WE HELD THAT UNDER THE AMENDED STATUTE THE EXPENSES OF RETURN TRAVEL AND TRANSPORTATION UPON SEPARATION, GENERALLY, ARE REQUIRED TO BE PAID WHERE THE EMPLOYEE HAS SATISFIED THE REQUIREMENTS OF THE STATUTE AND REGULATIONS. THE FIRST PROVISO OF THE ACT OF AUGUST 31, 1954, 68 STAT. 1008, FURTHER AMENDING SECTION 7, 5 U.S.C. 73B-3, PROVIDES THAT THE EXPENSES OF ROUND-TRIP TRAVEL OF EMPLOYEES AND TRANSPORTATION OF IMMEDIATE FAMILY FROM POST TO DUTY OUTSIDE 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 PLACES OF RESIDENCE FOR THE PURPOSE OF TAKING LEAVE PRIOR TO SERVING ANOTHER TOUR OF OVERSEAS DUTY UNDER A NEW WRITTEN AGREEMENT ENTERED INTO BEFORE DEPARTING FROM THE OVERSEAS POST. THE LEGISLATIVE HISTORY OF THE FIRST PROVISO SHOWS THAT IT WAS INTENDED TO SUPPLY THE STATUTORY AUTHORITY WHICH WE HAD HELD WAS NECESSARY FOR EMPLOYEES, WHO WERE ENTITLED TO RETURN TRANSPORTATION ON SEPARATION, TO BE ALLOWED RETURN TRANSPORTATION AT GOVERNMENT EXPENSE FOR TRAVEL PERFORMED FOR THE PURPOSE OF TAKING LEAVE.

SECTION 27 (D) (1) OF TITLE VI, EXECUTIVE ORDER NO. 9805, AS ADDED BY BUREAU OF THE BUDGET CIRCULAR A-4, MAY 2, 1955, PROVIDES THAT AN EMPLOYEE, WHO FOR REASONS OTHER THAN THOSE BEYOND HIS CONTROL, FAILS TO COMPLETE 1 YEAR'S SERVICE UNDER THE NEW EMPLOYMENT AGREEMENT IS INDEBTED TO THE GOVERNMENT FOR THE AMOUNTS EXPENDED INCIDENT TO HIS HOME LEAVE TRAVEL. FURTHER PROVIDES, IN THE FIRST SENTENCE, THAT "SUCH INDEBTEDNESS SHALL, HOWEVER, BE ADJUSTED DOWNWARD (IN RECOGNITION OF THE EMPLOYEE'S COMPLETION OF THE PREVIOUS PERIOD OF SERVICE) BY AN AMOUNT EQUAL TO THE COST OF RETURNING THE EMPLOYEE, HIS IMMEDIATE FAMILY, AND HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS FROM THE POST OF DUTY AT WHICH THE FORMER PERIOD OF SERVICE WAS COMPLETED TO HIS PLACE OF ACTUAL RESIDENCE.' UNDER THAT SECTION, IF THE AMOUNT OF THE ADJUSTMENT IS LESS THAN THE EMPLOYEE'S INDEBTEDNESS, THE BALANCE SHALL REPRESENT A DEBT DUE THE UNITED STATES; IF THE AMOUNT OF THE ADJUSTMENT EXCEEDS THE EMPLOYEE'S INDEBTEDNESS, THE BALANCE SHALL BE APPLIED TO THE COST, FOR WHICH THE EMPLOYEE IS RESPONSIBLE, OF TRANSPORTING THE EMPLOYEE, HIS IMMEDIATE FAMILY, AND HOUSEHOLD GOODS AND PERSONAL EFFECTS FROM THE POST OF DUTY AT WHICH HE FAILED TO COMPLETE THE PERIOD OF SERVICE, UNDER THE NEW AGREEMENT, TO HIS PLACE OF ACTUAL RESIDENCE.

THE CREDITS AGAINST THE INDEBTEDNESS ARE REQUIRED BY THE REGULATION TO BE ALLOWED. THE ENTITLEMENT TO THE CREDITS, FOR PURPOSE OF SATISFYING THE INDEBTEDNESS, IS NOT AFFECTED BY THE EMPLOYEE'S ELECTION TO REMAIN OVERSEAS AT TIME OF SEPARATION. THEREFORE, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

WE HELD IN 28 COMP. GEN. 285 THAT RETURN TRAVEL AND TRANSPORTATION EXPENSES, UPON SEPARATION, ARE NOT PAYABLE UNDER SECTION 7 WHEN THE EMPLOYEE DOES NOT RETURN TO THE UNITED STATES AS AN INCIDENT TO THE COMPLETION OF HIS OVERSEAS ASSIGNMENT AND THAT THE RETURN TRAVEL MUST COMMENCE WITHIN A REASONABLE TIME THEREAFTER. THE RULE IS FOR APPLICATION TO THE TRAVEL AND TRANSPORTATION FOR WHICH THE EMPLOYEE IS RESPONSIBLE AND WHICH IS ADJUSTABLE UNDER SECTION 27 (D) (1) OF THE EXECUTIVE ORDER. THUS, THE TRAVEL OF THE EMPLOYEE MUST BE INCIDENT TO HIS SEPARATION. THE EVENT THE COMMENCEMENT OF THE TRAVEL IS NOT WITHIN A REASONABLE TIME THEREAFTER, THE COSTS THEREOF ARE NOT ALLOWABLE. ACCEPTANCE OF PRIVATE EMPLOYMENT OVERSEAS, GENERALLY, WOULD REQUIRE THE VIEW THAT SUBSEQUENT RETURN TRAVEL IS NOT INCIDENT TO THE SEPARATION.

THEREFORE, IN ANSWER TO THE SECOND QUESTION, IF THE EMPLOYEE ELECTS TO REMAIN OVERSEAS, AS GENERALLY WOULD BE TRUE WHEN HE ACCEPTS PRIVATE EMPLOYMENT OVERSEAS IN LIEU OF HIS RETURNING TO HIS PLACE OF ACTUAL RESIDENCE AND/OR FAILS TO COMMENCE HIS RETURN TRAVEL WITHIN A REASONABLE TIME AFTER THE DATE OF SEPARATION, THE REMAINING BALANCE OF HIS EARNED TRANSPORTATION ENTITLEMENT MAY NOT BE APPLIED TO ANY SUBSEQUENT RETURN TRAVEL COSTS OF THE EMPLOYEE OR TOWARDS THE RETURN TRANSPORTATION COSTS OF HIS DEPENDENTS AND HOUSEHOLD GOODS.