B-136029, JUNE 24, 1958, 37 COMP. GEN. 846

B-136029, JUNE 24, 1958, 37 COMP. GEN. 846

CIVILIAN PERSONNEL - OVERSEAS EMPLOYEES - TRAVEL EXPENSES - RESIDENCE DETERMINATION THE PLACE OF ACTUAL RESIDENCE OF OVERSEAS EMPLOYEES FOR HOME LEAVE AND SEPARATION TRAVEL IS THE PLACE ESTABLISHED AT THE TIME OF THE APPOINTMENT OR TRANSFER TO THE OVERSEAS POST OF DUTY, AND A SUBSEQUENT CHANGE OF RESIDENCE DOES NOT AFFECT THE EMPLOYEE'S RIGHTS UNDER 5 U.S.C. 73B-3. COMP. GEN. 270, OVERRULED IN PART.

TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, JUNE 24, 1958:

ON APRIL 29, 1958, THE ASSISTANT DIRECTOR REQUESTED OUR DECISION AS TO WHETHER ELBERT CRIPPS, AN OFFICIAL COURT REPORTER FOR THE UNITED STATES DISTRICT COURT AT HONOLULU MAY BE RETURNED TO LOS ANGELES, CALIFORNIA, AT GOVERNMENT EXPENSE FOR THE PURPOSE OF TAKING HOME LEAVE AFTER SIGNING AN AGREEMENT TO REMAIN IN THE SERVICE IN HAWAII FOR ANOTHER TWO YEARS.

MR. CRIPPS WAS HIRED IN LOS ANGELES IN 1954 AND SENT TO HAWAII TO SERVE AS REPORTER FOR THE UNITED STATES DISTRICT COURT. AT THAT TIME HE SIGNED AN AGREEMENT TO REMAIN THERE FOR TWO YEARS. THE AGREEMENT EXPIRED IN DECEMBER 1956 AND HE HAS REMAINED IN THE SERVICE UPON THE UNDERSTANDING CONTAINED IN A LETTER FROM THE OFFICE THAT HE COULD BE BROUGHT BACK ON HOME LEAVE. HE HAS NOW APPLIED FOR THIS HOME LEAVE FOR THE MONTH OF AUGUST 1958.

THE DISTRICT JUDGE, THE HONORABLE J. FRANK MCLAUGHLIN, HAS APPROVED THE LEAVE BUT HAS RAISED THE FOLLOWING QUESTION:

IF YOU ACCORD HIM THE BENEFIT OF 5 U.S.C. SECTION 73B-3 I HAVE NO OBJECTION. IT IS A BIT AWKWARD, THOUGH, IN THAT OUR OTHER FINE REPORTER, MR. GRAIN, CAME TO US YEARS BEFORE THIS NEW LAW AND WITHOUT CONTRACT AND AT HIS OWN EXPENSE. FURTHER, BOTH MR. CRIPPS AND I WANT YOU TO KNOW THAT NOT ONLY HAS HIS CONTRACT OF TWO YEARS EXPIRED WITHOUT FORMAL RENEWAL, BUT LIKE MR. GRAIN HE HAS MADE HAWAII HIS HOME. LOS ANGELES IS NO LONGER HIS LEGAL OR "ACTUAL RESIDENCE.' IF ONE HAS NO LONGER AN "ACTUAL RESIDENCE" TO RETURN TO, DOES 5 U.S.C. SECTION 73B-3 APPLY?

SECTION 73B-3 OF TITLE 5, U.S. CODE, PROVIDES, IN PART AS FOLLOWS:

APPROPRIATIONS FOR THE DEPARTMENTS SHALL BE AVAILABLE, IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT, FOR EXPENSES OF TRAVEL OF NEW APPOINTEES, EXPENSES OF TRANSPORTATION OF THEIR IMMEDIATE FAMILIES AND EXPENSES OF TRANSPORTATION OF THEIR HOUSEHOLD GOODS AND PERSONAL EFFECTS FROM PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT TO PLACES OF EMPLOYMENT OUTSIDE CONTINENTAL UNITED STATES, AND FOR SUCH EXPENSES ON RETURN OF EMPLOYEES FROM THEIR POSTS OF DUTY OUTSIDE CONTINENTAL UNITED STATES TO THE PLACES OF THEIR ACTUAL RESIDENCE AT TIME OF ASSIGNMENT TO DUTY OUTSIDE THE UNITED STATES: * * * THAT EXPENSES OF ROUND TRIP TRAVEL OF EMPLOYEE* * * FROM THEIR POSTS OF DUTY OUTSIDE THE 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 ACTUAL PLACES OF RESIDENCE FOR THE PURPOSE OF TAKING LEAVE * * *. ( ITALICS SUPPLIED.)

UNDER THE LANGUAGE OF THE STATUTE, THE LOCATION OF THE PLACE OF ACTUAL RESIDENCE FOR BOTH SEPARATION AND HOME LEAVE TRAVEL PURPOSES IS ESTABLISHED AT THE "TIME" OF THE EMPLOYEE'S APPOINTMENT OR TRANSFER TO THE OVERSEAS POST OF DUTY AND IS NOT AFFECTED BY CHANGES IN THE EMPLOYEE'S INTENTIONS SUBSEQUENT TO THE "TIME" OF SUCH APPOINTMENT OR TRANSFER. THE LEGISLATIVE HISTORY OF THE ACT DOES NOT SHOW A CONGRESSIONAL INTENT TO THE CONTRARY. THAT PART OF THE DECISION IN 35 COMP. GEN. 270 (AT PAGE 272) WHICH SAYS THAT AN ABANDONMENT OF THE RESIDENCE IN THE UNITED STATES SUBSEQUENT TO THE APPOINTMENT OVERSEAS IS A BASIS FOR BARRING BENEFITS OF RETURN TO THE UNITED STATES UNDER THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, WAS NOT NECESSARY TO THE CONCLUSION REACHED IN THAT CASE AND IS TO BE DISREGARDED SO FAR AS IT IS INCONSISTENT WITH THE STATEMENT ABOVE THAT THE LOCATION OF THE PLACE OF ACTUAL RESIDENCE FOR THE PURPOSE OF THE ACT IS ESTABLISHED AT THE TIME OF THE EMPLOYEE'S APPOINTMENT OR TRANSFER.

THEREFORE, IF OTHERWISE PROPER, MR. CRIPPS MAY BE RETURNED TO LOS ANGELES (PRESUMED TO BE HIS PLACE OF ACTUAL RESIDENCE AT TIME OF OVERSEAS APPOINTMENT) AT GOVERNMENT EXPENSE FOR THE PURPOSE OF TAKING LEAVE AFTER SIGNING AN AGREEMENT TO REMAIN IN THE SERVICE IN HAWAII FOR ANOTHER TWO YEARS.