B-136388, AUG. 4, 1958

B-136388: Aug 4, 1958

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WAS FORWARDED THROUGH CHANNELS OF THE NAVY DEPARTMENT REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF FEBRUARY 13. IN THE SETTLEMENT YOU WERE ADVISED CONCERNING THE PROVISIONS OF SECTION 7 OF THE ACT OF 1946. YOU APPLIED FOR DUTY IN SPAIN AND THAT YOUR AGREEMENT WAS TO WORK TWO YEARS WITH THE OFFICER IN CHARGE OF CONSTRUCTION AT MADRID. YOU SAY YOU WERE NOT NOTIFIED UNTIL ON OR ABOUT MAY 16. THAT THE POSITION IN WHICH YOU HAD REEMPLOYMENT RIGHTS AT THE NAVAL ORDNANCE PLANT WAS OCCUPIED BY AN EMPLOYEE WHO HAD GREATER RETENTION RIGHTS AND THAT IT WAS NOT POSSIBLE TO DISPLACE THAT INCUMBENT. WE HAVE CAREFULLY CONSIDERED THE FACTS AND CIRCUMSTANCES PRESENTED IN YOUR CASE. THE CONTROLLING FACT IS THAT YOU WERE BEING RETURNED FROM THE MADRID OFFICE FOR PURPOSES OF SEPARATION AND.

B-136388, AUG. 4, 1958

TO MR. LUTHER W. WRIGHT:

YOUR LETTER OF FEBRUARY 24, 1958, WAS FORWARDED THROUGH CHANNELS OF THE NAVY DEPARTMENT REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF FEBRUARY 13, 1958, WHICH DISALLOWED YOUR CLAIM FOR EXPENSES OF TRAVEL FROM CHICAGO, ILLINOIS, TO SAN DIEGO, CALIFORNIA, INCIDENT TO YOUR EMPLOYMENT AT THE SAN DIEGO NAVAL AIR STATION, EFFECTIVE JULY 22, 1957.

IN THE SETTLEMENT YOU WERE ADVISED CONCERNING THE PROVISIONS OF SECTION 7 OF THE ACT OF 1946, 5 U.S.C. 73B-3, WHICH APPLIED TO YOUR RETURN TRAVEL AND TRANSPORTATION FROM MADRID, SPAIN, TO CHICAGO UPON TERMINATION OF YOUR EMPLOYMENT AT MADRID, AND THAT YOUR SEPARATION UNDER THE 1946 ACT DID NOT ENTITLE YOU TO TRAVEL AT GOVERNMENT EXPENSE TO SAN DIEGO.

YOU SAY THAT PREDICATED ON SECNAV NOTICE 12165, DATED DECEMBER 16, 1954, WHILE EMPLOYED AT THE U.S. NAVAL ORDNANCE PLANT, FORESTPARK, ILLINOIS, YOU APPLIED FOR DUTY IN SPAIN AND THAT YOUR AGREEMENT WAS TO WORK TWO YEARS WITH THE OFFICER IN CHARGE OF CONSTRUCTION AT MADRID, WITH THE UNDERSTANDING THAT UPON TERMINATION OF SUCH OVERSEA CONTRACT YOU HAD ADMINISTRATIVE REEMPLOYMENT RIGHTS AT THE FOREST PARK NAVAL ORDNANCE PLANT. HOWEVER, YOU SAY YOU WERE NOT NOTIFIED UNTIL ON OR ABOUT MAY 16, 1957, THAT THE POSITION IN WHICH YOU HAD REEMPLOYMENT RIGHTS AT THE NAVAL ORDNANCE PLANT WAS OCCUPIED BY AN EMPLOYEE WHO HAD GREATER RETENTION RIGHTS AND THAT IT WAS NOT POSSIBLE TO DISPLACE THAT INCUMBENT.

WE HAVE CAREFULLY CONSIDERED THE FACTS AND CIRCUMSTANCES PRESENTED IN YOUR CASE; HOWEVER, THE CONTROLLING FACT IS THAT YOU WERE BEING RETURNED FROM THE MADRID OFFICE FOR PURPOSES OF SEPARATION AND, UNDER THE CITED LAW, UPON COMPLETION OF THAT OVERSEAS SERVICE YOU WERE ENTITLED TO EXPENSES OF RETURN TRAVEL AND TRANSPORTATION TO YOUR "ACTUAL RESIDENCE AT TIME OF ASSIGNMENT TO DUTY OUTSIDE THE UNITED STATES.'

THE RECORD SHOWS YOU WERE CARRIED IN A LEAVE STATUS ON THE ROLLS OF THE MADRID OFFICE AFTER YOU HAD ARRIVED IN CHICAGO SO THAT A BREAK IN YOUR GOVERNMENT SERVICE WOULD NOT OCCUR WHILE YOU WERE ARRANGING FOR FURTHER GOVERNMENT EMPLOYMENT WITHIN THE UNITED STATES. HOWEVER, SUCH FACT, AND THE CIRCUMSTANCES THEREOF AS EVIDENCED BY THE PRESENT RECORD, DOES NOT CONSTITUTE ONE OF THE SITUATIONS COVERED BY THE 1946 ACT, AS AMENDED. OUR DECISION OF SEPTEMBER 24, 1957, B-112928, 37 COMP. GEN. 203, WE HELD AS FOLLOWS, QUOTING THE SYLLABUS:

"THE RETURN OF OVERSEAS EMPLOYEES IN A LEAVE STATUS FOR REASSIGNMENT TO OTHER POSTS, AS MAY BE DETERMINED DURING OR AFTER LEAVE, MAY NOT BE REGARDED AS RETURN FOR TRANSFER UNDER 5 U.S.C. 73B 1, OR RETURN FOR SEPARATION FROM THE SERVICE, OR RETURN FOR HOME LEAVE PRIOR TO SERVING ANOTHER OVERSEAS TOUR OF DUTY, UNDER A NEW WRITTEN EMPLOYMENT AGREEMENT, WITHIN THE PURVIEW OF 5 U.S.C. 73B-3, SO AS TO PERMIT PAYMENT BY THE GOVERNMENT OF THE RETURN TRAVEL AND TRANSPORTATION EXPENSES OF EMPLOYEES, DEPENDENTS, AND HOUSEHOLD EFFECTS.'

A COPY OF THAT DECISION IS ENCLOSED FOR YOUR INFORMATION.

THEREFORE, IN LIGHT OF THE FACTS PRESENTED IN YOUR CASE, THE APPLICABLE LAW AND OUR DECISION OF SEPTEMBER 24, 1957, B-112928, THE SETTLEMENT OF FEBRUARY 13, 1958, IS SUSTAINED.