B-137572, NOV 19, 1958

B-137572: Nov 19, 1958

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THE REMAINS OF THE DECEDENT WERE PREPARED BY THE TROFFINGER FUNERAL PARLORS IN QUAKERTOWN AND TRANSPORTED TO BIRMINGHAM. ALLEN'S OFFICIAL POST OF DUTY WAS THE EASTERN EXPERIMENT STATION OF THE BUREAU OF MINES AT COLLEGE PARK. IN THE SERVICE OF WHICH SUCH OFFICER OR EMPLOYEE WAS ENGAGED. IS AUTHORIZED. TO PAY FROM THE APPROPRIATION AVAILABLE FOR THE ACTIVITY IN WHICH HE WAS ENGAGED - "(A) IN CASE OF THE DEATH OF THE OFFICER OR EMPLOYEE IN SUCH TRAVEL STATUS IN THE UNITED STATES. SECTION 2 OF THE EXECUTIVE ORDER SPECIFICALLY PROVIDES THAT WHEN AN EMPLOYEE DIES WHILE IN A TRAVEL STATUS WITHIN THE CONTINENTAL UNITED STATES THE EXPENSES OF TRANSPORTING THE REMAINS SHALL IN NO CASE BE GREATER THAN THE AMOUNT WHICH WOULD HAVE BEEN PAYABLE HAD THE PLACE OF INTERMENT BEEN THE HOME OR OFFICIAL STATION.

B-137572, NOV 19, 1958

PRECIS-UNAVAILABLE

W. F. OWEN, JR.:

ON SEPTEMBER 30, 1958, YOU SUBMITTED A VOUCHER COVERING TRANSPORTATION COSTS OF THE REMAINS OF SIMON A. ALLEN, A DECEASED EMPLOYEE OF THE BUREAU OF MINES, FROM THE PLACE OF DEATH AT QUAKERTOWN, PENNSYLVANIA, TO BIRMINGHAM, ALABAMA, AND REQUESTED AN ADVANCE DECISION ON THE PROPRIETY OF CERTIFICATION OF THE VOUCHER FOR PAYMENT IN VIEW OF THE UNCERTAINTY AS TO THE LOCATION OF THE DECEASED'S "HOME."

YOU STATE THE FACTS IN YOUR LETTER AS FOLLOWS:

"MR. SIMEON A. ALLEN DIED AT QUAKERTOWN, PENNSYLVANIA, ON SEPTEMBER 3, 1958, WHILE TRAVELING ON OFFICIAL BUSINESS. THE REMAINS OF THE DECEDENT WERE PREPARED BY THE TROFFINGER FUNERAL PARLORS IN QUAKERTOWN AND TRANSPORTED TO BIRMINGHAM, ALABAMA, IN ACCORDANCE WITH THE WIDOW'S REQUEST. MR. ALLEN RESIDED AT 9606 BALTIMORE AVE., COLLEGE PARK, MARYLAND, PRIOR TO HIS DEATH; HOWEVER, HE HAS CLAIMED ALABAMA AS HIS LEGAL RESIDENCE ON ALL OFFICIAL PERSONNEL DOCUMENTS SINCE HIS EMPLOYMENT WITH THIS REGIONAL OFFICE."

MR. ALLEN'S OFFICIAL POST OF DUTY WAS THE EASTERN EXPERIMENT STATION OF THE BUREAU OF MINES AT COLLEGE PARK, MARYLAND.

THE ACT OF JULY 8, 1940, 5 U.S.C. 103(A), PROVIDES IN PERTINENT PART:

"IN CASE ANY CIVILIAN OFFICER OR EMPLOYEE OF THE UNITED STATES DIES (1) WHILE IN A TRAVEL STATUS AWAY FROM HIS OFFICIAL STATION IN THE UNITED STATES OR (2) WHILE PERFORMING OFFICIAL DUTIES IN A TERRITORY OR POSSESSION OF THE UNITED STATES OR IN A FOREIGN COUNTRY OR IN TRANSIT THERETO OR THEREFROM, THE HEAD OF THE DEPARTMENT, INDEPENDENT ESTABLISHMENT, AGENCY, OR FEDERALLY OWNED OR CONTROLLED CORPORATION, HEREINAFTER CALLED DEPARTMENT, IN THE SERVICE OF WHICH SUCH OFFICER OR EMPLOYEE WAS ENGAGED, IS AUTHORIZED, UNDER REGULATIONS TO BE PRESCRIBED BY THE PRESIDENT AND EXCEPT AS OTHERWISE PROVIDED BY LAW, TO PAY FROM THE APPROPRIATION AVAILABLE FOR THE ACTIVITY IN WHICH HE WAS ENGAGED -

"(A) IN CASE OF THE DEATH OF THE OFFICER OR EMPLOYEE IN SUCH TRAVEL STATUS IN THE UNITED STATES, OR IN THE CASE OF THE DEATH OF THE OFFICER OR EMPLOYEE WHILE PERFORMING OFFICIAL DUTIES IN A TERRITORY OR POSSESSION OF THE UNITED STATES OR IN A FOREIGN COUNTRY OR IN TRANSIT THERETO OR THEREFROM, THE EXPENSES OF PREPARING AND TRANSPORTING THE REMAINS OF SUCH OFFICER OR EMPLOYEE TO HIS HOME OR OFFICIAL STATION OR SUCH OTHER PLACE AS THE HEAD OF THE DEPARTMENT CONCERNED SHALL DETERMINE TO BE THE APPROPRIATE PLACE OF INTERMENT."

SECTION 1(B) OF EXECUTIVE ORDER NO. 8557, DATED SEPTEMBER 30, 1940, PRESCRIBING REGULATIONS TO GOVERN PAYMENTS UNDER THE ABOVE-QUOTED ACT DEFINES THE TERM "HOME" AS A "FIXED OR PERMANENT DWELLING PLACE SYNONYMOUS WITH PLACE OF FIXED ABODE AS DISTINGUISHED FROM A MORE TEMPORARY RESIDENCE." SECTION 2 OF THE EXECUTIVE ORDER SPECIFICALLY PROVIDES THAT WHEN AN EMPLOYEE DIES WHILE IN A TRAVEL STATUS WITHIN THE CONTINENTAL UNITED STATES THE EXPENSES OF TRANSPORTING THE REMAINS SHALL IN NO CASE BE GREATER THAN THE AMOUNT WHICH WOULD HAVE BEEN PAYABLE HAD THE PLACE OF INTERMENT BEEN THE HOME OR OFFICIAL STATION, WHICHEVER SHALL BE MORE DISTANT."

FROM A REVIEW OF THE LEGISLATIVE HISTORY OF THE ACT OF JULY 8, 1940, WHERE, IN DISCUSSING A NEED FOR THE STATUTE, EMPHASIS WAS PLACED UPON THE COSTS TO A FAMILY FOR THE TRANSPORTATION OF THE REMAINS BECAUSE OF THE EMPLOYEE'S HAVING DIED WHILE IN A TRAVEL STATUS IN THE CONTINENTAL UNITED STATES, WE CONCLUDE THAT THE RESIDENCE ESTABLISHED BY A REGULARLY ASSIGNED EMPLOYEE AT OR NEAR HIS OFFICIAL STATION IN THE UNITED STATES SHOULD BE CONSIDERED HIS "HOME" FOR PURPOSES OF DETERMINING BENEFITS UNDER THE ACT. IN THIS CASE, THEREFORE, CERTIFICATION FOR PAYMENT OF MRS. ALLEN'S CLAIM MUST BE LIMITED TO THE CONSTRUCTIVE COST OF TRANSPORTING THE REMAINS FROM QUAKERTOWN, PENNSYLVANIA, TO COLLEGE PARK, MARYLAND. HENCE, THE VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT IN ITS PRESENT FORM.

THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED.