B-134507, DEC. 10, 1957

B-134507: Dec 10, 1957

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THE CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION ON OCTOBER 16. YOU WERE NOT ENTITLED TO RETURN TRAVEL AT GOVERNMENT EXPENSE. THAT YOU WERE NOT PHYSICALLY INCAPACITATED TO REMAIN IN OKINAWA AND CONTINUE PERFORMANCE OF YOUR OFFICIAL DUTIES WAS INCORRECT. AUTHORITY FOR PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES OF EMPLOYEES IN YOUR CATEGORY TO AND FROM POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES IS CONTAINED IN THE ADMINISTRATIVE EXPENSES ACT OF 1946. WHICH PROVIDES IN PERTINENT PART: "* * * THAT EXPENSES OF RETURN TRAVEL AND TRANSPORTATION UPON SEPARATION FROM THE SERVICE SHALL BE ALLOWED WHETHER SUCH SEPARATION IS FOR THE PURPOSE OF THE GOVERNMENT OR FOR PERSONAL CONVENIENCE. SHALL NOT BE ALLOWED UNLESS SUCH PERSONS SELECTED FOR APPOINTMENT OUTSIDE THE CONTINENTAL UNITED STATES SHALL HAVE SERVED FOR A MINIMUM PERIOD OF NOT LESS THAN ONE OR MORE THAN THREE YEARS PRESCRIBED IN ADVANCE BY THE HEAD OF THE DEPARTMENT OR AGENCY CONCERNED OR UNLESS SEPARATION IS FOR REASONS BEYOND THE CONTROL OF THE INDIVIDUAL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED. * * *" AS REQUIRED BY THE STATUTE.

B-134507, DEC. 10, 1957

TO MR. ROBERT O. STEIN:

YOUR PETITION TRANSMITTED HERE WITH A LETTER DATED NOVEMBER 20, 1957, FROM MR. AARON H. SIBLEY, ATTORNEY AT LAW, REQUESTS RECONSIDERATION OF YOUR CLAIM FOR REIMBURSEMENT OF $3,864.31 AS REPATRIATION EXPENSES FROM YOUR PLACE OF EMPLOYMENT IN OKINAWA TO YOUR RESIDENCE AT WEST ROXBURY, MASSACHUSETTS. THE CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION ON OCTOBER 16, 1957, FOR THE REASON THAT, SINCE YOU VOLUNTARILY RESIGNED BEFORE COMPLETING THE MINIMUM TOUR OF DUTY OF 18 MONTHS IN OKINAWA AS REQUIRED BY YOUR CONTRACT OF EMPLOYMENT WITH THE DEPARTMENT OF THE ARMY, YOU WERE NOT ENTITLED TO RETURN TRAVEL AT GOVERNMENT EXPENSE.

YOUR PETITION APPEARS TO BE BASED ESSENTIALLY ON THE CONTENTIONS (1) THAT THE GOVERNMENT'S FAILURE TO REQUIRE AN ENTRANCE MEDICAL EXAMINATION MISLED YOU AS TO THE STATE OF YOUR HEALTH, CAUSING YOU TO ACCEPT THE POSITION OFFERED BY THE GOVERNMENT AND TO FORFEIT AN EXISTING RIGHT TO RETURN TRANSPORTATION FROM YOUR FORMER EMPLOYER IN OKINAWA, A JAPANESE CONSTRUCTION FIRM; AND (2) THAT THE DETERMINATION BY ARMY MEDICAL OFFICERS, JUST PRIOR TO YOUR RESIGNATION, THAT YOU WERE NOT PHYSICALLY INCAPACITATED TO REMAIN IN OKINAWA AND CONTINUE PERFORMANCE OF YOUR OFFICIAL DUTIES WAS INCORRECT.

AUTHORITY FOR PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES OF EMPLOYEES IN YOUR CATEGORY TO AND FROM POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES IS CONTAINED IN THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED (5 U.S.C. 73B-1; 73B-3), WHICH PROVIDES IN PERTINENT PART:

"* * * THAT EXPENSES OF RETURN TRAVEL AND TRANSPORTATION UPON SEPARATION FROM THE SERVICE SHALL BE ALLOWED WHETHER SUCH SEPARATION IS FOR THE PURPOSE OF THE GOVERNMENT OR FOR PERSONAL CONVENIENCE, BUT SHALL NOT BE ALLOWED UNLESS SUCH PERSONS SELECTED FOR APPOINTMENT OUTSIDE THE CONTINENTAL UNITED STATES SHALL HAVE SERVED FOR A MINIMUM PERIOD OF NOT LESS THAN ONE OR MORE THAN THREE YEARS PRESCRIBED IN ADVANCE BY THE HEAD OF THE DEPARTMENT OR AGENCY CONCERNED OR UNLESS SEPARATION IS FOR REASONS BEYOND THE CONTROL OF THE INDIVIDUAL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED. * * *"

AS REQUIRED BY THE STATUTE, A MINIMUM PERIOD OF SERVICE OF EIGHTEEN MONTHS WAS PRESCRIBED FOR YOUR EMPLOYMENT IN ADVANCE AND WAS EMBODIED IN THE "CONDITIONS OF EMPLOYMENT AND TRANSPORTATION AGREEMENT" WHICH YOU SIGNED PRIOR TO YOUR APPOINTMENT. PARAGRAPH 3 OF THE AGREEMENT IS, IN PERTINENT PART, AS FOLLOWS:

"UNLESS INVOLUNTARILY SEPARATED AT AN EARLIER DATE, YOU ARE REQUIRED TO REMAIN IN SERVICE WITH THE COMMAND AT LEAST 18 MONTHS FROM TIME OF ARRIVAL AT PERMANENT DUTY STATION IN ORDER TO BE AUTHORIZED RETURN TRANSPORTATION TO YOUR PLACE OF RESIDENCE AT GOVERNMENT EXPENSE. IF, AT ANY TIME DURING THE MINIMUM PERIOD OF SERVICE, YOU RETURN TO THE UNITED STATES FOR REASONS NOT ACCEPTABLE TO YOUR COMMANDING OFFICER, YOU WILL BE REQUIRED TO PAY THE COST OF YOUR RETURN TRAVEL. * * *"

THE OFFICIAL RECORDS RELATING TO YOUR EMPLOYMENT SHOW THAT YOU WERE APPOINTED AS "LOCAL HIRE" EFFECTIVE JUNE 9, 1954, AND THAT YOU RESIGNED YOUR POSITION EFFECTIVE JULY 27, 1955, FOR PERSONAL REASONS WHICH WERE NOT ACCEPTABLE TO THE COMMAND SO AS TO JUSTIFY AUTHORIZING RETURN TRAVEL AT GOVERNMENT EXPENSE. THE RECORDS SHOW ALSO THAT THE QUESTION OF WHETHER IT WAS JUSTIFIED TO ISSUE A MEDICAL CERTIFICATE TO TERMINATE YOUR CIVIL SERVICE EMPLOYMENT CONTRACT WAS CONSIDERED AT YOUR REQUEST BY A MEDICAL OFFICER AT RYUKYUS ARMY HOSPITAL ON JUNE 15, 1955, AND IT WAS DETERMINED THAT SUCH A CERTIFICATE WAS NOT JUSTIFIED AT THAT TIME. ON THE BASIS OF THESE FACTS, THE DETERMINATION WAS MADE BY THE COMMAND AT THE TIME OF YOUR DEPARTURE FROM OKINAWA THAT YOU WERE INELIGIBLE FOR RETURN TRAVEL AT GOVERNMENT EXPENSE.

IN THE LIGHT OF THE STATUTORY REQUIREMENTS AND THE FACTS OF YOUR CASE AS REVEALED BY OFFICIAL RECORDS, IT IS OBVIOUS THAT THE CONTENTIONS ON WHICH YOU BASE YOUR APPEAL CANNOT BE ACCORDED ANY MATERIAL WEIGHT. CONCERNING YOUR FIRST CONTENTION AS SUMMARIZED ABOVE, THE REQUIREMENT FOR AN ENTRANCE MEDICAL EXAMINATION IS CONSIDERED TO BE PRIMARILY FOR THE PROTECTION OF THE GOVERNMENT'S INTEREST AND, SINCE IT IS NOT A STATUTORY REQUIREMENT, MAY BE ADMINISTRATIVELY WAIVED SO FAR AS ANY INDIVIDUAL IS CONCERNED. YOUR CONTENTION THAT THE MEDICAL OFFICER ERRED IN DETERMINING THAT YOU WERE NOT INCAPACITATED FOR PERFORMING YOUR DUTIES WOULD NOT BE MATERIAL FOR OUR CONSIDERATION HERE EVEN IF IT WERE SUPPORTED BY CREDIBLE EVIDENCE, SINCE, UNDER THE STATUTE QUOTED ABOVE, SUCH A DECISION IS CLEARLY WITHIN THE PREROGATIVE OF THE DEPARTMENT TO DETERMINE WHETHER AN EMPLOYEE'S REASONS FOR RESIGNING ARE ACCEPTABLE.

YOUR ENTITLEMENT TO RETURN TRAVEL AT GOVERNMENT EXPENSE UNDER THE PROVISIONS OF APPLICABLE LAW AND THE EMPLOYMENT AGREEMENT WAS CONTINGENT UPON YOUR REMAINING IN SERVICE FOR AT LEAST THE MINIMUM PERIOD OF 18 MONTHS UNLESS, FOR VALID REASONS ACCEPTABLE TO THE COMMAND, YOU WERE AUTHORIZED TO RETURN EARLIER. SINCE THESE CONDITIONS WERE NOT FULFILLED AND YOU RETURNED VOLUNTARILY AT YOUR OWN EXPENSE, THERE IS NO LEGAL BASIS ON WHICH WE MAY ALLOW YOUR CLAIM FOR REIMBURSEMENT. THEREFORE, THE SETTLEMENT OF OCTOBER 16, 1957, DISALLOWING YOUR CLAIM MUST BE, AND IS, SUSTAINED.