B-138436, FEB 16, 1959

B-138436: Feb 16, 1959

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IT IS STATED THAT THE SUBJECT MATTER OF THE MEETING WAS CLOSELY ASSOCIATED WITH THE EMPLOYEE'S OFFICIAL DUTIES. THE EMPLOYEE'S WIFE TEACHES SCHOOL IN PUERTO RICO AND BECAUSE OF THAT EMPLOYMENT SHE WAS UNABLE TO ACCOMPANY HER HUSBAND ON HIS HOME LEAVE TRAVEL TO THE UNITED STATES. SHALL BE ALLOWED IN THE CASE OF PERSONS WHO HAVE SATISFACTORILY COMPLETED AN AGREED PERIOD OF SERVICE OVERSEAS AND ARE RETURNING TO THEIR ACTUAL PLACE OF RESIDENCE FOR THE PURPOSE OF TAKING LEAVE PRIOR TO SERVING ANOTHER TOUR OF DUTY AT THE SAME OR SOME OTHER OVERSEAS POST. UNDER A NEW WRITTEN AGREEMENT ENTERED INTO BEFORE DEPARTING FROM THE OVERSEAS POST UNDER THE ABOVE-QUOTED LEAVE PROVISO OF PUBLIC LAW 737 THE GOVERNMENT'S OBLIGATION TO PAY THE ROUND-TRIP TRANSPORTATION OF THE IMMEDIATE FAMILY IS CONTINGENT UPON ITS OBLIGATION TO PAY THE HOME LEAVE TRAVEL EXPENSES OF THE EMPLOYEE HIMSELF.

B-138436, FEB 16, 1959

PRECIS-UNAVAILABLE

NORMAN P. MASON, HOUSING AND HOME FINANCE AGENCY:

ON JANUARY 13, 1959, YOUR PRODECESSOR REQUESTED OUR DECISION UPON THE QUESTION OF WHETHER THE WIFE AND MINOR CHILD OF AN OVERSEAS EMPLOYEE OF THE HOUSING AND HOME FINANCE AGENCY MAY, UNDER THE HOME LEAVE TRAVEL PROVISIONS OF THE ACT OF AUGUST 31, 1954, 68 STAT. 1008, PUBLIC LAW 737, 5 U.S.C. 73B-3, AMENDING SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 808, DEFER ROUND TRIP TRAVEL TO THE UNITED STATES AT GOVERNMENT EXPENSE SEVEN OR MORE MONTHS AFTER THE EMPLOYEE HAS RETURNED TO DUTY FROM HIS HOME LEAVE TRAVEL TO THE UNITED STATES PURSUANT TO THE AFOREMENTIONED STATUTE.

THE QUESTION ARISES IN CONNECTION WITH AN EMPLOYEE OF THE HOUSING AND HOME FINANCE AGENCY STATIONED IN PUERTO RICO WHO, HAVING SIGNED AN AGREEMENT TO SERVE AN ADDITIONAL TOUR OF DUTY (PRESUMABLY FOR 2 YEARS) OUTSIDE THE CONTINENTAL UNITED STATES, COMMENCED HOME LEAVE TRAVEL PURSUANT TO 5 U.S.C. 73B-3 ON OCTOBER 25, 1958, AND RETURNED TO DUTY IN PUERTO RICO ON NOVEMBER 12, 1958. THE EMPLOYEE SPECIFICALLY REQUESTED HIS LEAVE IN OCTOBER 1958 SO THAT HE COULD ATTEND, IN HIS PRIVATE CAPACITY AND WITHOUT ADDITIONAL GOVERNMENT EXPENSE THEREFORE, THE ANNUAL MEETING OF THE AMERICAN INSTITUTE OF PLANNERS (WORKSHOP ON URBAN RENEWAL) IN NEW YORK CITY. IT IS STATED THAT THE SUBJECT MATTER OF THE MEETING WAS CLOSELY ASSOCIATED WITH THE EMPLOYEE'S OFFICIAL DUTIES, AND THE GOVERNMENT RECEIVED AT LEAST INCIDENTAL BENEFIT FROM THE EMPLOYEE'S ATTENDANCE AT THE MEETING AND THEREBY FROM THE EMPLOYEE'S TAKING LEAVE WHEN HE DID.

THE EMPLOYEE'S WIFE TEACHES SCHOOL IN PUERTO RICO AND BECAUSE OF THAT EMPLOYMENT SHE WAS UNABLE TO ACCOMPANY HER HUSBAND ON HIS HOME LEAVE TRAVEL TO THE UNITED STATES. THEREFORE, THE EMPLOYEE HAS REQUESTED THAT HIS WIFE AND CHILD BE ALLOWED HOME LEAVE TRAVEL TO AND FROM THE UNITED STATES AT GOVERNMENT EXPENSE UNDER 5 U.S.C. 73B-3, IN JUNE 1959, SUBSEQUENT TO THE COMPLETION OF THE SCHOOL YEAR IN PUERTO RICO.

PUBLIC LAW 737, 68 STAT. 1008, 5 U.S.C. 73B-3, PROVIDES IN PERTINENT PART AS FOLLOWS:

"*** PROVIDED FURTHER, THAT EXPENSES OF ROUND TRIP TRAVEL OF EMPLOYEE AND TRANSPORTATION OF IMMEDIATE FAMILY BUT EXCLUDING HOUSEHOLD EFFECTS, 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 PLACE OF RESIDENCE FOR THE PURPOSE OF TAKING LEAVE PRIOR TO SERVING ANOTHER TOUR OF DUTY AT THE SAME OR SOME OTHER OVERSEAS POST, UNDER A NEW WRITTEN AGREEMENT ENTERED INTO BEFORE DEPARTING FROM THE OVERSEAS POST

UNDER THE ABOVE-QUOTED LEAVE PROVISO OF PUBLIC LAW 737 THE GOVERNMENT'S OBLIGATION TO PAY THE ROUND-TRIP TRANSPORTATION OF THE IMMEDIATE FAMILY IS CONTINGENT UPON ITS OBLIGATION TO PAY THE HOME LEAVE TRAVEL EXPENSES OF THE EMPLOYEE HIMSELF. IN ADDITION, THE ROUND TRIP TRANSPORTATION EXPENSES OF MEMBERS OF HIS IMMEDIATE FAMILY MUST BE INCURRED INCIDENT TO HOME LEAVE TRAVEL ACTUALLY PERFORMED BY THE EMPLOYEE HIMSELF TO BE REIMBURSABLE.

HERE, THE EMPLOYEE WAS ENTITLED TO THE EXPENSES OF HIS HOME LEAVE TRAVEL WHEN HE ACTUALLY PERFORMED SUCH TRAVEL. ALSO, AT THAT TIME, THE EMPLOYEE WAS ENTITLED TO THE ROUND-TRIP TRANSPORTATION EXPENSES OF HIS WIFE AND CHILD AS PART OF HIS LEAVE TRAVEL RIGHTS UNDER 5 U.S.C. 73B 3.

THEREFORE, IN VIEW OF THE REASON FOR THE EMPLOYEE'S PERFORMING HOME LEAVE TRAVEL, FROM WHICH THE GOVERNMENT RECEIVED AT LEAST INCIDENTAL BENEFIT, AT A TIME WHEN IT WAS KNOWN THAT HIS DEPENDENTS COULD NOT ACCOMPANY HIM, AND SINCE THE DEPENDENTS WILL PERFORM HOME LEAVE TRAVEL WITHIN A REASONABLE TIME AFTER THAT PERFORMED BY THE EMPLOYEE, THE ROUND-TRIP TRANSPORTATION AT GOVERNMENT EXPENSE OF THE EMPLOYEE'S WIFE AND CHILD COMMENCING IN JUNE 1959, ADMINISTRATIVELY MAY BE AUTHORIZED. HOWEVER, THE ALLOWABLE TRANSPORTATION EXPENSES FOR SUCH TRAVEL ARE LIMITED TO THOSE WHICH WOULD HAVE BEEN INCURRED IF THE TRAVEL HAD BEEN PERFORMED AT THE TIME THE EMPLOYEE PERFORMED HOME LEAVE TRAVEL. SEE 36 COMP. GEN. 116, 35 ID. 101. BUT CF. 26 COMP. GEN. 864.