B-135874, MAY 2, 1958

B-135874: May 2, 1958

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IS ENTITLED TO HOME LEAVE AT GOVERNMENT EXPENSE UNDER THE FACTS AND CIRCUMSTANCES STATED BELOW. HE DID NOT TAKE THE HOME LEAVE TO WHICH HE WAS ENTITLED AT THAT TIME. OUR DECISION IS REQUESTED WHETHER THE EMPLOYEE WOULD BE ENTITLED TO HOME LEAVE IN THE SUMMER OF 1958. OR WHETHER HE WOULD HAVE TO WAIT TWO YEARS FOLLOWING HOME LEAVE IN THE SUMMER OF 1958. HE WAS APPOINTED TO A POSITION IN THE INTERNAL REVENUE SERVICE AT ANCHORAGE BUT DID NOT ENTER INTO AN EMPLOYMENT AGREEMENT AT SUCH TIME. - (1) MUST HAVE SATISFACTORILY COMPLETED AN AGREED-UPON PERIOD OF SERVICE * * * AND (2) MUST HAVE ENTERED INTO A NEW WRITTEN AGREEMENT FOR ANOTHER PERIOD OF SERVICE AT THE SAME OR SOME OTHER POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES.

B-135874, MAY 2, 1958

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE:

ON APRIL 17, 1958, THE ACTING SECRETARY OF HEALTH, EDUCATION, AND WELFARE, REQUESTED OUR DECISION, WHETHER AN EMPLOYEE OF THE SOCIAL SECURITY ADMINISTRATION, OFFICE OF APPEALS COUNCIL, IS ENTITLED TO HOME LEAVE AT GOVERNMENT EXPENSE UNDER THE FACTS AND CIRCUMSTANCES STATED BELOW.

THE EMPLOYEE WHILE SERVING OVERSEAS WITH A GOVERNMENT AGENCY OTHER THAN THE SOCIAL SECURITY ADMINISTRATION COMPLETED HIS EMPLOYMENT AGREEMENT IN AUGUST 1957, AND BECAME ELIGIBLE FOR HOME LEAVE. FOR PERSONAL REASONS, HE DID NOT TAKE THE HOME LEAVE TO WHICH HE WAS ENTITLED AT THAT TIME, ARRANGING INSTEAD WITH THAT AGENCY TO TAKE IT IN THE SUMMER OF 1958. HOWEVER, BEFORE TAKING HIS HOME LEAVE AS PLANNED HE "RECENTLY" TRANSFERRED --- DATE NOT STATED--- TO THE SOCIAL SECURITY ADMINISTRATION IN SAN JUAN, PUERTO RICO, AND SIGNED AN EMPLOYMENT AGREEMENT TO REMAIN OVERSEAS UNTIL AUGUST 1959. OUR DECISION IS REQUESTED WHETHER THE EMPLOYEE WOULD BE ENTITLED TO HOME LEAVE IN THE SUMMER OF 1958, WITH TRAVEL AND TRANSPORTATION EXPENSES PAID BY THE GOVERNMENT. IF WE ANSWER THIS QUESTION IN THE AFFIRMATIVE YOU REQUEST OUR FURTHER DECISION WHETHER THE EMPLOYEE THEN WOULD BE ENTITLED TO HOME LEAVE IN AUGUST 1959, AT THE END OF HIS PRESENT EMPLOYMENT AGREEMENT WITH THE SOCIAL SECURITY ADMINISTRATION, OR WHETHER HE WOULD HAVE TO WAIT TWO YEARS FOLLOWING HOME LEAVE IN THE SUMMER OF 1958.

THE ACTING SECRETARY RELIES TO SOME EXTENT UPON OUR DECISION IN 35 COMP. GEN. 655. THE PRINCIPLE LAID DOWN IN THAT DECISION WOULD NOT BE APPLICABLE IN THE SITUATION PRESENTED HERE SINCE THE FACTS IN THE TWO CASES VARY. IN THAT DECISION THE EMPLOYEE AFTER SATISFACTORILY COMPLETING TWO YEARS AND THREE MONTHS OF SERVICE IN ANCHORAGE, ALASKA, AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY UNDER A TWO-YEAR EMPLOYMENT AGREEMENT RESIGNED ON MARCH 9, 1955. THE FOLLOWING DAY, MARCH 10, 1955, HE WAS APPOINTED TO A POSITION IN THE INTERNAL REVENUE SERVICE AT ANCHORAGE BUT DID NOT ENTER INTO AN EMPLOYMENT AGREEMENT AT SUCH TIME. ON NOVEMBER 30, 1955, PRIOR TO HIS RETURNING TO THE CONTINENTAL UNITED STATES FOR THE PURPOSE OF TAKING LEAVE, THE EMPLOYEE SIGNED A TWO-YEAR EMPLOYMENT AGREEMENT WITH THE INTERNAL REVENUE SERVICE. IN THE CASE NOW PRESENTED THE EMPLOYEE UPON ENTERING ON DUTY WITH YOUR DEPARTMENT SIGNED AN AGREEMENT TO REMAIN OVERSEAS UNTIL AUGUST 1959.

TITLE VI OF EXECUTIVE ORDER NO. 9805, AS ADDED BY BUREAU OF THE BUDGET CIRCULAR NO. A-4, DATED MAY 2, 1955, AUTHORIZES TRAVEL EXPENSES IN CONNECTION WITH LEAVE FOR RETURNING TO PLACE OF RESIDENCE BETWEEN TOURS OF OVERSEAS DUTY. THE PERTINENT PROVISIONS OF THE REGULATIONS ISSUED BY THE BUREAU OF THE BUDGET PROVIDE THAT---

"/A) ELIGIBILITY. TO BE ELIGIBLE FOR TRAVEL AND TRANSPORTATION EXPENSES AS AUTHORIZED IN (B) BELOW, AN EMPLOYEE PRIOR TO DEPARTURE FROM HIS POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES--- (1) MUST HAVE SATISFACTORILY COMPLETED AN AGREED-UPON PERIOD OF SERVICE * * * AND (2) MUST HAVE ENTERED INTO A NEW WRITTEN AGREEMENT FOR ANOTHER PERIOD OF SERVICE AT THE SAME OR SOME OTHER POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES. THE PERIOD OF SERVICE UNDER SUCH NEW AGREEMENT SHALL BEGIN UPON THE DATE OF HIS RETURN TO OR ARRIVAL AT SUCH POST OF DUTY AFTER LEAVE HAS BEEN TAKEN.'

SINCE THE EMPLOYEE ENTERED INTO A NEW AGREEMENT WITH THE SOCIAL SECURITY ADMINISTRATION TO SERVE A NEW TOUR OF DUTY OVERSEAS HE NORMALLY WOULD NOT BECOME ELIGIBLE FOR HOME LEAVE UNTIL HE HAS COMPLETED THE TOUR OF DUTY AS PRESCRIBED IN HIS EMPLOYMENT AGREEMENT, WHICH IN THIS CASE WOULD BE IN THE SUMMER OF 1959. SEE 31 COMP. GEN. 588.

UNDER THE EXECUTIVE ORDER AN EMPLOYEE IS REQUIRED TO REMAIN IN THE GOVERNMENT SERVICE A MINIMUM OF 12 MONTHS AT HIS OVERSEAS POST OF DUTY BEFORE HE IS ELIGIBLE TO ROUND-TRIP TRAVEL FOR PURPOSE OF TAKING LEAVE BETWEEN TOURS OF DUTY OVERSEAS. IN THIS CASE THE EMPLOYEE HAS SERVED MORE THAN TWO YEARS WITHOUT A PERIOD OF HOME LEAVE. THEREFORE, IF YOUR DEPARTMENT DETERMINES THAT IT IS IN THE INTERESTS OF THE GOVERNMENT, WE WOULD NOT OBJECT TO YOUR GRANTING HIM HOME LEAVE IN THE SUMMER OF 1958, PROVIDED HE ENTERS INTO ANOTHER AGREEMENT--- PRIOR TO HIS DEPARTURE ON LEAVE--- TO SERVE AT LEAST ONE ADDITIONAL YEAR AFTER COMPLETION OF HIS HOME LEAVE AND RETURN TO DUTY. WHETHER HOME LEAVE MIGHT BE GRANTED IN THE SUMMER OF 1959, WOULD DEPEND UPON THE NEEDS OF THE SERVICE AND A FURTHER AGREEMENT AT THAT TIME BY THE EMPLOYEE TO SERVE NOT LESS THAN ONE YEAR OVERSEAS.