B-137034, SEP 5, 1958

B-137034: Sep 5, 1958

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YOU REQUESTED AND WERE FURNISHED ROUND TRIP TRANSPORTATION FOR YOURSELF AND FAMILY TO PLACE OF RESIDENCE IN THE UNITED STATES FOR LEAVE PURPOSES AT GOVERNMENT EXPENSE. YOU WERE NOT ELIGIBLE FOR RETURN TRAVEL TO THE UNITED STATES UNTIL AUGUST 3. THE EFFECTIVE DATE OF YOUR REASSIGNMENT WITH THE AGENCY LAST MENTIONED IS REPORTED "C.O.B. 807.84 - THE SUM CLAIMED BY YOU - ARE ITEMIZED BELOW: TRAVEL EXPENSES - 1957 AMOUNT COMMERCIAL AIR - FOR YOUR TRAVEL VIA HONOLULU. WAS EXECUTED WITH THE UNDERSTANDING THAT YOU WOULD BE PERSONALLY LIABLE FOR THE EXPENSES OF RETURN TRAVEL OF YOURSELF AND FAMILY FROM THE OVERSEAS STATION TO YOUR PLACE OF RESIDENCE. PROVIDED THAT A PRIMARY ORGANIZATION UNIT MAY ESTABLISH A DIFFERENT MINIMUM PERIOD FOR REASON WHICH IT CONSIDERS WILL PROMOTE THE EFFICIENCY OF THE SERVICE.".

B-137034, SEP 5, 1958

PRECIS-UNAVAILABLE

MR. ARTHUR C. KEPNER:

YOUR LETTER OF JULY 29, 1958, REQUESTS RECONSIDERATION OF OUR SETTLEMENT DATED MAY 27, 1958, WHICH DISALLOWED YOUR CLAIM FOR EXPENSES INCURRED FOR TRAVEL OF YOURSELF AND IMMEDIATE FAMILY, AND FOR THE TRANSPORTATION OF YOUR HOUSEHOLD GOODS AND EFFECTS FROM THE ISLAND OF MAUI, HAWAII, TO FARGO, NORTH DAKOTA, DURING 1957, PRIOR TO THE COMPLETION OF A SECOND TOUR OF OVERSEAS DUTY WITH THE NATIONAL BUREAU OF STANDARDS, BOULDER LABORATORIES, U. S. DEPARTMENT OF COMMERCE.

THE RECORD SHOWS THAT ON SEPTEMBER 30, 1952, YOU EXECUTED AN AGREEMENT WITH THE ABOVE-MENTIONED AGENCY FOR THREE YEARS OF CIVILIAN EMPLOYMENT IN HAWAII. YOU REPORTED FOR DUTY AT THE OVERSEAS DESTINATION ON NOVEMBER 11, 1952. SUBSEQUENT TO THE COMPLETION OF THE DUTY AGREED UPON AND AFTER HAVING ENTERED INTO A SECOND AGREEMENT FOR ANOTHER THREE YEAR TOUR AT THE SAME LOCATION, YOU REQUESTED AND WERE FURNISHED ROUND TRIP TRANSPORTATION FOR YOURSELF AND FAMILY TO PLACE OF RESIDENCE IN THE UNITED STATES FOR LEAVE PURPOSES AT GOVERNMENT EXPENSE. SINCE THE AGREEMENT LAST EXECUTED, DATED APRIL 2, 1956, SPECIFICALLY PROVIDES FOR A SECOND THREE YEAR TOUR "BEGINNING ON THE DATE OF YOUR ARRIVAL" AT THE OVERSEAS POST, YOU WERE NOT ELIGIBLE FOR RETURN TRAVEL TO THE UNITED STATES UNTIL AUGUST 3, 1959, IN THE ABSENCE OF SPECIFIC AUTHORIZATION THEREFOR.

ON NOVEMBER 11, 1957, WITHOUT OFFICIAL TRAVEL ORDERS AND MORE THAN 20 MONTHS PRIOR TO THE EXPIRATION DATE OF THE SECOND EMPLOYMENT AGREEMENT, YOU LEFT THE ISLAND OF MAUI, HAWAII, AND PROCEEDED TO THE UNITED STATES VIA COMMERCIAL AIRCRAFT AT PERSONAL EXPENSE FOR THE PURPOSE OF ACCEPTING A POSITION WITH THE CIVIL AERONAUTICS ADMINISTRATION, DEPARTMENT OF COMMERCE, WITH HEADQUARTERS AT GRAND FORKS, NORTH DAKOTA. THE EFFECTIVE DATE OF YOUR REASSIGNMENT WITH THE AGENCY LAST MENTIONED IS REPORTED "C.O.B. DECEMBER 17, 1957." EXPENSES INCURRED FOR YOUR TRAVEL AND THAT OF YOUR IMMEDIATE FAMILY, AND FOR THE MOVEMENT (INCLUDING PACKING AND CRATING) OF YOUR HOUSEHOLD GOODS AND EFFECTS FROM THE OVERSEAS STATION TO FARGO, NORTH DAKOTA, AGGREGATING $1,807.84 - THE SUM CLAIMED BY YOU - ARE ITEMIZED BELOW:

TRAVEL EXPENSES - 1957 AMOUNT

COMMERCIAL AIR - FOR YOUR TRAVEL VIA HONOLULU,

DENVER AND KANSAS CITY $261.52

COMMERCIAL AIR AND RAIL TRAVEL FOR YOUR WIFE

AND SON 365.18

$626.70

TRANSPORTATION EXPENSES - 1957

PACKING AND INCIDENTAL CHARGES PREPARATORY

TO SHIPMENT 161.50

STEAMSHIP CHARGES - KALULAI, MAUI, T. N. TO

SAN FRANCISCO 319.48

RAIL SHIPMENT - SAN FRANCISCO TO FARGO,

NORTH DAKOTA 650.16

DRAYAGE AT FARGO 50.00

$1,181.14

THE EMPLOYMENT AGREEMENT DATED APRIL 2, 1956, WAS EXECUTED WITH THE UNDERSTANDING THAT YOU WOULD BE PERSONALLY LIABLE FOR THE EXPENSES OF RETURN TRAVEL OF YOURSELF AND FAMILY FROM THE OVERSEAS STATION TO YOUR PLACE OF RESIDENCE, IN THE EVENT YOU FAILED TO FULFILL THE CONDITIONS STATED IN SECTION 8.02 AND 8.04 OF ADMINISTRATIVE ORDER 202-7 (AMENDED), DATED SPETEMBER 6, 1955.

SECTION 8.02 OF THE ABOVE-CITED ADMINISTRATIVE ORDER 202-7, PROVIDES THAT TO BE ELIGIBLE FOR RETURN TRANSPORTATION TO THE UNITED STATES "EMPLOYEES MUST CONTINUE TO SERVE AS EMPLOYEES OF THE DEPARTMENT FOR A MINIMUM PERIOD OF TWO YEARS AFTER THE DATE OF THEIR ARRIVAL AT THE POST OF DUTY AND AFTER COMPLETION OF ANY FORMAL TRAINING PERIOD REQUIRED BY THE PRIMARY ORGANIZATION UNIT, PROVIDED THAT A PRIMARY ORGANIZATION UNIT MAY ESTABLISH A DIFFERENT MINIMUM PERIOD FOR REASON WHICH IT CONSIDERS WILL PROMOTE THE EFFICIENCY OF THE SERVICE." A REDUCTION IN THE PRESCRIBED MINIMUM PERIOD OF OVERSEAS DUTY MAY BE MADE ONLY WHEN IT IS DETERMINED THAT THE PUBLIC INTEREST REQUIRES THE RETURN OF AN EMPLOYEE AND SUCH RETURN IS DUE TO CIRCUMSTANCES OVER WHICH HE HAS NO CONTROL. SECTION 8.04 PROVIDES THAT AN EMPLOYEE WHO HAS RETURNED TO THE OVERSEAS DUTY STATION AFTER A PERIOD OF LEAVE IN THE UNITED STATES AT GOVERNMENT EXPENSE AND WHO SERVES ONE YEAR OR MORE, BUT LESS THAN THE AGREED PERIOD OF SERVICE IS NOT AUTHORIZED RETURN TRAVEL AND TRANSPORTATION TO THE UNITED STATES BUT MAY BE ALLOWED APPROPRIATE ADJUSTMENT BECAUSE OF THE COMPLETION OF A PRIOR PERIOD OF SERVICE. THERE IS NOTHING IN THE RECORD WHICH PURPORTS TO SHOW THAT YOUR FIRST OR SECOND TOUR OF DUTY WAS REDUCED, NOR IS IT APPARENT THAT SUCH A REDUCTION WOULD HAVE BEEN JUSTIFIED.

ALTHOUGH YOU LOCATED YOUR PRESENT POSITION WHILE ON OFFICIAL LEAVE IN THE UNITED STATES, YOU FAILED TO COMPLETE THE MINIMUM PERIODS OF DUTY STIPULATED IN YOUR AGREEMENT DATED APRIL 2, 1956, AND THE REGULATIONS. SINCE RETURN TRAVEL DURING 1957 AT GOVERNMENT EXPENSE WAS NOT AUTHORIZED AND WAS NOT DUE TO REASONS BEYOND YOUR CONTROL, NO BASIS IS FOUND TO REIMBURSE YOU FOR THE EXPENSE INCURRED FOR YOUR TRAVEL OR THAT OF YOUR IMMEDIATE FAMILY FROM HAWAII TO FARGO, AS CLAIMED. CONSEQUENTLY, THAT PORTION OF THE SETTLEMENT OF MAY 27, 1958, RELATING TO EXPENSES FOR RETURN TRAVEL MUST BE AND IS SUSTAINED.

THE BALANCE OF YOUR CLAIM REPRESENTS TRANSPORTATION CHARGES TOTALING $1,181.14 SHOWN TO HAVE BEEN INCURRED FOR THE MOVEMENT OF YOUR HOUSEHOLD GOODS AND EFFECTS, WEIGHING 7,642 POUNDS, FROM THE ISLAND OF MAUI, HAWAII, TO FARGO. EVEN THOUGH THE APPLICABLE REGULATIONS (EXECUTIVE ORDER NO. 9805, AS AMENDED) SPECIFICALLY PRECLUDE THE PAYMENT OF TRANSPORTATION EXPENSES WHERE THE TRANSFER IS FOR THE CONVENIENCE OR BENEFIT OF THE EMPLOYEE, OR AT HIS REQUEST, SINCE YOU SATISFACTORILY COMPLETED THE TERMS OF YOUR ORIGINAL OVERSEAS AGREEMENT, YOU BECAME ELIGIBLE TO HAVE YOUR EFFECTS (NOT IN EXCESS OF THE MAXIMUM PRESCRIBED WEIGHT ALLOWANCE), TRANSPORTED FROM THE OVERSEAS POST OF DUTY TO PLACE OF ACTUAL RESIDENCE AT THE TIME OF THAT ASSIGNMENT. YOUR VESTED RIGHT TO SUCH TRANSPORTATION HAD NOT EXPIRED AT THE TIME YOUR EFFECTS WERE TRANSPORTED TO FARGO. IN VIEW THEREOF, WE CONCLUDE THAT YOU ARE ENTITLED TO REIMBURSEMENT FOR TRANSPORTATION EXPENSES INCURRED FOR THE MOVEMENT OF YOUR EFFECTS FROM THE OVERSEAS POST TO FARGO, NOT TO EXCEED THE SUM THAT WOULD HAVE BEEN EXPENDED IF SUCH SHIPMENT HAD BEEN MADE TO ALEXANDRIA, VIRGINIA, THE LOCATION OF YOUR RESIDENCE IN 1952.

ACCORDINGLY, A SUPPLEMENTAL SETTLEMENT FOR THE AMOUNT FOUND TO BE DUE WILL ISSUE IN YOUR FAVOR AS SOON AS PRACTICABLE.