B-139746, JUL. 24, 1959

B-139746, JUL. 24, 1959

TO THE SECRETARY OF THE NAVY:

ON MAY 26, 1959, (FILE NCA1411), ADMIRAL G. F. BEARDSLEY, OFFICE OF THE COMPTROLLER, DEPARTMENT OF THE NAVY, FORWARDED HERE A LETTER DATED APRIL 30, 1959 (FILE OIR 250:IB), FROM THE CHIEF OF INDUSTRIAL RELATIONS, REQUESTING OUR DECISION AS TO WHETHER FREDERICKTOWN, MISSOURI, MAY BE CONSIDERED AS MR. CLAYTON MCKINZIE'S ACTUAL PLACE OF RESIDENCE FOR HOME LEAVE TRAVEL EXPENSE PURPOSES.

MR. MCKINZIE AND FAMILY (WIFE, AND DAUGHTER AGE 11), PERFORMED ROUND TRIP TRAVEL FROM HIS DUTY STATION ON GUAM, MARIANAS ISLANDS, TO FREDERICKTOWN, MISSOURI, BETWEEN DECEMBER 19, 1958, AND FEBRUARY 5, 1959, AT PERSONAL EXPENSE. AT THE TIME OF THE TRAVEL, HE WAS ASSIGNED TO THE NAVAL AIR STATION, AGANA, GUAM. ALTHOUGH HE WAS IN HAWAII ON JULY 25, 1956, THE DATE HE EXECUTED A RENEWAL AGREEMENT FOR ANOTHER TOUR OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES, AND HAD RESIDED THERE FOR OVER 20 YEARS PRIOR TO 1954, HE CONTENDS THAT IN JULY 1956, HIS ACTUAL RESIDENCE WAS AT FREDERICKTOWN, MISSOURI. ONE AFFIDAVIT ON FILE READS, AS FOLLOWS:

"I BENJAMINE L. TINNIN, ASSOCIATE JUDGE 2ND DISTRICT MADISON COUNTY COURT, DO HEREBY CERTIFY THAT WILLIAM CLAYTON MCKINZIE WAS A RESIDENT OF MADISON COUNTY IN THE STATE OF MISSOURI ON JULY 25, 1956. HE WAS BORN IN THE STATE OF MISSOURI; HE ENLISTED IN THE U.S. ARMY IN MISSOURI AND HAS ALWAYS MAINTAINED MISSOURI AS HIS LEGAL RESIDENCE.'

THE RECORD AVAILABLE HERE INDICATES THAT MR. MCKINZIE HAD RESIDED IN HAWAII MORE THAN NINE YEARS BEFORE HE BECAME A FEDERAL EMPLOYEE-- HIS FIRST EMPLOYMENT WITH THE DEPARTMENT OF THE NAVY IS SHOWN TO HAVE BEEN AT PEARL HARBOR, HAWAII, IN 1942. IN OCTOBER 1942 HE REPORTED 1770 LIME STREET, HONOLULU, HAWAII, TO BE HIS RESIDENCE AND THE PLACE WHERE HE HAD THEN RESIDED FOR SIX MONTHS. IT APPEARS HE HAS BEEN EMPLOYED INTERMITTENTLY BY THE GOVERNMENT IN HAWAII SINCE 1942, AND THE RECORD CONTAINS A NUMBER OF OTHER ADDRESSES IN HAWAII WHICH, PRIOR TO 1956, HE SPECIFICALLY REPORTED AS HIS PLACE OF RESIDENCE.

MR. MCKINZIE, AS INDICATED ABOVE, IS SHOWN TO HAVE RESIDED IN HAWAII CONTINUOUSLY FROM 1932 UNTIL 1954, WHEN HE WAS TRANSFERRED TO MIDWAY ISLAND. SUBSEQUENTLY (ON AUGUST 19, 1957), HE WAS TRANSFERRED TO HIS PRESENT POSITION WITH THE NAVAL AIR STATION, AGANA, GUAM.

NOTWITHSTANDING THE HAWAIIAN RESIDENCES REFERRED TO HEREIN AND THE LENGTH OF TIME DURING WHICH THE CLAIMANT HAS BEEN ABSENT FROM THE UNITED STATES, HE ALLEGES THAT BLOCK I OF HIS "ORIGINAL EMPLOYMENT AGREEMENT" DATED JULY 25, 1956, ERRONEOUSLY SHOWED AN ADDRESS IN HAWAII RATHER THAN FREDERICKTOWN, MADISON COUNTY, MISSOURI, AS HIS PLACE OF RESIDENCE. SPECIFICALLY REFERS TO THE REGULATIONS OF THE DEPARTMENT OF THE NAVY (NCPI 240. 3-7) WHICH PERMIT THE CORRECTION OF THE RECORD TO SHOW THE PLACE OF ACTUAL RESIDENCE AT THE TIME OF HIS ASSIGNMENT TO OVERSEAS DUTY. EXPRESSES THE VIEW THAT OUR DECISIONS IN 34COMP. GEN. 540, AND 35 ID. 270, WARRANT ALLOWANCE OF THE TRANSPORTATION EXPENSES CLAIMED. THERE IS NOTHING IN THE RECORD TO SHOW THAT THE CLAIMANT HAS HERETOFORE PRESENTED A SIMILAR CLAIM FOR TRAVEL EXPENSES FROM AN OVERSEAS LOCATION TO FREDERICKTOWN, MISSOURI. HE REPORTS THAT DURING THE PERIOD OF HIS LONG ABSENCE FROM THE UNITED STATES NO ATTEMPT WAS EVER MADE TO EXERCISE THE RIGHT OF SUFFRAGE IN THE STATE OF MISSOURI BY ABSENTEE BALLOT, BUT HE SAYS THIS IS SO BECAUSE VOTING LAWS IN MISSOURI, MAKE IT PRACTICALLY IMPOSSIBLE TO FILE ABSENTEE BALLOTS. MOREOVER, NO ORDERS WERE ISSUED AUTHORIZING THE TRAVEL FOR WHICH REIMBURSEMENT IS REQUESTED, AND PAYMENT OF THE SUM CLAIMED IS ADMINISTRATIVELY DISAPPROVED, IT HAVING BEEN DETERMINED ADMINISTRATIVELY THAT THE CLAIMANT'S PLACE OF ACTUAL RESIDENCE WAS NOT IN THE UNITED STATES ON THE DATE OF HIS APPOINTMENT.

THE STATUTORY AUTHORITY FOR THE PAYMENT OF EXPENSES FOR ROUND-TRIP TRAVEL OF EMPLOYEES AND THEIR IMMEDIATE FAMILIES FROM POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO PLACES OF ACTUAL RESIDENCE IN THE UNITED STATES FOR THE PURPOSE OF HOME LEAVE IS CONTAINED IN THE ACT OF AUGUST 31, 1954, 68 STAT. 1008, 5 U.S.C. 73B-3. THAT ACT PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"* * * 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 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.

SECTION 27 (B), TITLE VI OF EXECUTIVE ORDER NO. 9805, GOVERNING THE ALLOWANCE OF TRAVEL AND TRANSPORTATION IN CONNECTION WITH LEAVE FOR RETURNING TO PLACE OF RESIDENCE BETWEEN TOURS OF OVERSEAS DUTY, READS IN PERTINENT PART AS FOLLOWS:

"/B) TRAVEL ALLOWANCE. AN ELIGIBLE EMPLOYEE SHALL BE ALLOWED TRAVEL EXPENSES * * * FOR HIMSELF AND TRANSPORTATION EXPENSES FOR HIS IMMEDIATE FAMILY FROM HIS POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO THE PLACE OF HIS ACTUAL RESIDENCE AT THE TIME OF HIS APPOINTMENT OR TRANSFER TO A POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES (HEREINAFTER REFERRED TO IN THIS SECTION AS "PLACE OF ACTUAL RESIDENCE") AND FROM SUCH PLACE OF ACTUAL RESIDENCE TO THE SAME OR ANOTHER POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES * * *.'

NAVY CIVILIAN PERSONNEL INSTRUCTIONS 240.3-7 (IN EFFECT ON AND AFTER MAY 1, 1957), PROVIDE, IN PERTINENT PART, AS FOLLOWS:

"* * * THE OBLIGATIONS OF THE GOVERNMENT FOR RETURN TRANSPORTATION FOR PURPOSES OF SEPARATION AND FOR ROUND-TRIP TRAVEL UNDER A RENEWAL AGREEMENT ARE LIMITED TO EXPENSES NECESSARY FOR RETURN TO SUCH PLACE OF ACTUAL RESIDENCE. WHEN AN ORIGINAL EMPLOYMENT AGREEMENT IS NEGOTIATED, A DETERMINATION OF THE PLACE OF ACTUAL RESIDENCE OF THE EMPLOYEE SHALL BE MADE AND SUCH PLACE OF ACTUAL RESIDENCE SHOWN IN THE EMPLOYEE'S COMPLETED AGREEMENT SHALL BE ENTERED IN BLOCK I OF THE RENEWAL AGREEMENT UNLESS IT IS DETERMINED THAT AN ERROR WAS MADE IN DETERMINING THE EMPLOYEE'S PLACE OF ACTUAL RESIDENCE WHEN THE COMPLETED AGREEMENT WAS EXECUTED. IN SUCH EVENT, THE TRUE PLACE OF ACTUAL RESIDENCE AT THE TIME OF ASSIGNMENT TO OVERSEAS DUTY SHOULD BE DETERMINED AND ENTERED IN BLOCK I OF THE RENEWAL AGREEMENT. * * * SUCH FINDING, WHEN THE ISSUE IS RAISED, SHOULD BE BASED UPON A CONSIDERATION OF ALL FACTORS WHICH MAY BE PERTINENT SUCH AS PROPERTY OWNERSHIP, PREVIOUS RESIDENCE, VOTING RECORD, AND EARLIER ACT OF EXPRESSIONS OR INTENTION ON THE PART OF THE EMPLOYEE * * *.'

THE PHRASE "PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT OR TRANSFER" IS NOT DEFINED IN THE STATUTE AS AMENDED, AND NEITHER IS IT DEFINED IN THE REGULATIONS ISSUED BY THE BUREAU OF THE BUDGET (TITLE VI, EXECUTIVE ORDER NO. 9805), IMPLEMENTING SUCH STATUTE. THE PLACE CONSTITUTING THE "ACTUAL RESIDENCE" MUST BE DETERMINED UPON THE FACTS AND CIRCUMSTANCES IN EACH INDIVIDUAL CASE. THE RESPONSIBILITY FOR THAT DETERMINATION PRIMARILY IS AN ADMINISTRATIVE ONE.

IN OUR DECISION OF APRIL 20, 1955, 34 COMP. GEN. 540, WE RULED THAT AN INDIVIDUAL LOCALLY HIRED IN HAWAII WHO CLAIMED HIS ACTUAL RESIDENCE WAS EAST ST. LOUIS, ILLINOIS, AT THE TIME (1947) HE RECEIVED THE FEDERAL APPOINTMENT, AND WHO CONTINUED IN THE FEDERAL SERVICE UNTIL 1955, AND WAS WILLING TO EXECUTE A RENEWAL AGREEMENT FOR FURTHER DUTY OVERSEAS, WAS ENTITLED TO EXPENSES FOR ROUND TRIP TRAVEL AND TRANSPORTATION FOR HIMSELF AND FAMILY TO EAST ST. LOUIS, ILLINOIS, FOR THE PURPOSE OF TAKING HOME LEAVE, PROVIDED, IN FACT, EAST ST. LOUIS WAS HIS RESIDENCE AS CLAIMED.

ALSO, OUR DECISION OF NOVEMBER 4, 1955 (35 COMP. GEN. 270), HELD THAT AN INDIVIDUAL GIVEN A FEDERAL APPOINTMENT IN 1943 WHILE RESIDING IN SEATTLE, WASHINGTON, WHO WAS TRANSFERRED TO ALASKA AND ON MAY 5, 1946, RESIGNED TO ACCEPT ANOTHER FEDERAL POSITION EFFECTIVE THE FOLLOWING DAY, WAS ENTITLED TO RETURN TRAVEL TO SEATTLE AT GOVERNMENT EXPENSE IN 1954.

IN EACH OF THE ABOVE-CITED CASES IT APPEARS THAT THE EMPLOYEE'S SERVICES WITH THE FEDERAL GOVERNMENT WERE CONTINUOUS (WITHOUT BREAK) FROM THE DATE OF HIS APPOINTMENT UNTIL THE HOME LEAVE TRAVEL HAD BEEN PERFORMED. MOREOVER, IN EACH INSTANCE THE ENTITLEMENT WAS CONSIDERED PROPER ONLY UPON A DEFINITE DETERMINATION THAT THE EMPLOYEE'S PLACE OF RESIDENCE WAS IN THE UNITED STATES AT THE TIME OF SUCH APPOINTMENT.

IN THE LIGHT OF ALL THE FACTS AND CIRCUMSTANCES HERE INVOLVED AS SET FORTH ABOVE, WE CONCLUDE THAT A FIRM BASIS EXISTS FOR THE ADMINISTRATIVE DETERMINATION THAT FREDERICKTOWN, MISSOURI, WAS NOT THE CLAIMANT'S ACTUAL PLACE OF RESIDENCE ON THE DATE OF HIS APPOINTMENT. CONSEQUENTLY, HE IS NOT ENTITLED TO "HOME LEAVE" TRAVEL EXPENSES AS CLAIMED. SEE 37 COMP. GEN. 119.

THEREFORE, PAYMENT OF THE VOUCHER IS NOT AUTHORIZED. THE VOUCHER AND RELATED PAPERS ARE RETURNED.