B-140735, DEC. 16, 1959

B-140735, DEC. 16, 1959

TO THE SECRETARY OF THE NAVY:

ON SEPTEMBER 10, 1959, THE ASSISTANT SECRETARY OF THE NAVY (PERSONNEL AND RESERVE FORCES), REQUESTED OUR DECISION ON CERTAIN QUESTIONS CONCERNING TRAVEL AND TRANSPORTATION FOR CIVILIAN EMPLOYEES OF THE DEPARTMENT OF THE NAVY, AS AUTHORIZED BY SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, APPROVED AUGUST 2, 1946, 68 STAT. 1008, AS AMENDED (5 U.S.C. 73B- 3).

ALL QUESTIONS PRESENTED--- WHICH ARE QUOTED BELOW--- RELATE TO CIVILIAN EMPLOYEES OF YOUR DEPARTMENT WHO ARE RESIDENTS OF THE UNITED STATES. THEIR RIGHTS TO TRAVEL AND TRANSPORTATION UPON SEPARATION ARE GOVERNED BY THE ADMINISTRATIVE EXPENSES ACT OF 1946, SUPRA, AS AMENDED BY SECTION 2 OF THE ACT OF SEPTEMBER 23, 1950, 64 STAT. 985. THAT ACT READS, IN PERTINENT PART, AS FOLLOWS:

" * * * AND PROVIDED FURTHER, THAT EXPENSES OF RETURN TRAVEL AND TRANSPORTATION UPON SEPARATION FROM THE SERVICE SHALL BE ALLOWED WHETHER SUCH SEPARATION IS FOR THE PURPOSES OF THE GOVERNMENT OR FOR PERSONAL CONVENIENCE, BUT SHALL NOT BE ALLOWED UNLESS SUCH PERSONS SELECTED FOR APPOINTMENT OUTSIDE THE CONTINENTAL UNITED STATES SHALL HAVE SERVED FOR A MINIMUM PERIOD OF NOT LESS THAN ONE NOR MORE THAN THREE YEARS PRESCRIBED IN ADVANCE BY THE HEAD OF THE DEPARTMENT OR AGENCY CONCERNED OR UNLESS SEPARATION IS FOR REASONS BEYOND THE CONTROL OF THE INDIVIDUAL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED.'

ROUND-TRIP TRAVEL OF EMPLOYEES FROM OVERSEA LOCATIONS TO THEIR PLACES OF ACTUAL RESIDENCE FOR THE PURPOSES OF TAKING LEAVE, IS GOVERNED BY THE AMENDATORY ACT OF AUGUST 31, 1954, 68 STAT. 1008. THAT ACT READS, IN PERTINENT PART, AS FOLLOWS:

"THAT EXPENSES OF ROUND TRIP TRAVEL OF EMPLOYEE AND TRANSPORTATION OF IMMEDIATE FAMILY * * * 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. * * *"

THE ASSISTANT SECRETARY'S LETTER DISCLOSES THAT A NUMBER OF INDIVIDUALS WHO ARE HIRED LOCALLY AT OVERSEAS ACTIVITIES, TRAVELED TO SUCH LOCATIONS AT GOVERNMENT EXPENSE AS DEPENDENTS OF EMPLOYEES WHO HAD EXECUTED EMPLOYMENT-TRANSPORTATION AGREEMENTS. SOME OF THOSE INDIVIDUALS ARE FORMER MEMBERS OF THE ARMED FORCES WHO ARE APPOINTED TO CIVILIAN POSITIONS AFTER DEMOBILIZATION ABROAD; WHILE OTHERS ARE EMPLOYEES OF GOVERNMENT CONTRACTORS WHO, AFTER HAVING COMPLETED THEIR CONTRACTUAL SERVICES, ACCEPT CIVILIAN EMPLOYMENT ABROAD. HOWEVER, SOME OF THEM ARE SAID TO BE TRAVELERS (TOURISTS) AND STUDENTS WHO PAID FOR THEIR TRANSPORTATION TO AN OVERSEA LOCATION AND ACCEPTED POSITIONS WITH YOUR DEPARTMENT WHILE THERE.

IN PARAGRAPH 5 OF HIS LETTER, THE ASSISTANT SECRETARY SPECIFICALLY REFERS TO APPLICABLE DEPARTMENTAL REGULATIONS (NCPI 165.5-2A AND 240.6 5A) WHEREIN PROVISION IS MADE THAT COMMANDING OFFICERS OF ACTIVITIES OUTSIDE THE CONTINENTAL UNITED STATES, WHEN IN THE INTEREST OF THE GOVERNMENT, MAY APPOINT AND ENTER INTO EMPLOYMENT AGREEMENTS WITH PERSONS HIRED LOCALLY WHO ARE RESIDENTS OF THE UNITED STATES. SUCH REGULATIONS PROVIDE THAT "IT IS WITHIN THE DISCRETION OF THE COMMANDING OFFICER OF THE OVERSEAS ACTIVITY WHETHER OR NOT HE NEGOTIATES AN EMPLOYMENT AGREEMENT PROVIDING FOR THE RETURN TRAVEL AND TRANSPORTATION AT GOVERNMENT EXPENSE WITH A RESIDENT OF THE UNITED STATES HIRED LOCALLY.' WE NOTE THAT UNITED STATES RESIDENTS HIRED OVERSEAS WITH WHOM EMPLOYMENT-TRANSPORTATION AGREEMENTS ARE NEGOTIATED ARE, UPON REQUEST, PROVIDED RETURN TRANSPORTATION UPON COMPLETION OF THE AGREED PERIOD OF SERVICE. WHEREAS, INDIVIDUALS HIRED LOCALLY OVERSEAS WHO ARE GIVEN CAREER CONDITIONAL OR CAREER APPOINTMENTS WITH WHOM NO EMPLOYMENT-TRANSPORTATION AGREEMENTS ARE NEGOTIATED, ARE NOT RETURNED TO THEIR PLACES OF RESIDENCE IN THE UNITED STATES AT GOVERNMENT EXPENSE, EXCEPT WHEN OTHERWISE ELIGIBLE TO RETURN TRANSPORTATION AS DEPENDENTS OF CIVILIAN OR MILITARY PERSONNEL.

THE QUESTIONS SUBMITTED FOR OUR CONSIDERATION RELATING ONLY TO LOCAL HIRES WITH WHOM NO EMPLOYMENT AGREEMENTS ARE NEGOTIATED, ARE AS FOLLOWS:

"A. UNDER THE ABOVE-QUOTED PROVISIONS OF 5 U.S.C. 73B-3, IS THE NAVY OBLIGATED TO PROVIDE RETURN TRANSPORTATION UPON COMPLETION OF A PERIOD OF SERVICE EQUIVALENT TO THE PRESCRIBED TOUR OF DUTY OF THE AREA WHEN SUCH TRANSPORTATION IS REQUESTED BY THE EMPLOYEE?

"B. DOES THE ESTABLISHMENT OF A TOUR OF DUTY IN AN OVERSEAS AREA FOR EMPLOYEES SERVING UNDER EMPLOYMENT AGREEMENTS SERVE TO "PRESCRIBE IN ADVANCE" A TOUR FOR EMPLOYEES WITH WHOM NO EMPLOYMENT AGREEMENTS HAVE BEEN NEGOTIATED AND WITH WHOM THERE ARE NO UNDERSTANDINGS AT THE TIME OF HIRE PROVIDING FOR RETURN TRANSPORTATION AT GOVERNMENT EXPENSE?

"C. SUPPOSE THE DEPENDENT WIFE OF AN EMPLOYEE IS HIRED LOCALLY OVERSEAS WITH NO PROVISION FOR HER RETURN TRANSPORTATION. SINCE HER HUSBAND IS SERVING UNDER AN EMPLOYMENT AGREEMENT SHE IS ENTITLED TO RETURN TRANSPORTATION AS HIS DEPENDENT. IF A. AND/OR B., ABOVE, ARE ANSWERED IN THE AFFIRMATIVE, DOES THE WIFE COME INTO TWO ENTITLEMENTS TO RETURN TRANSPORTATION--- ONE AS A DEPENDENT OF HER HUSBAND, THE OTHER BY VIRTUE OF HAVING COMPLETED THE PRESCRIBED TOUR OF DUTY OF THE AREA?

"D. THE ACT OF 31 AUGUST 1954 (68 STAT. 1008; 5 U.S.C. 73B-3) PROVIDES FOR ROUND-TRIP TRAVEL AND TRANSPORTATION OF DEPENDENTS OF AN ELIGIBLE EMPLOYEE FOR PURPOSES OF LEAVE IN THE UNITED STATES PRIOR TO SERVING AN ADDITIONAL TOUR OF DUTY AT THE SAME OR ANOTHER OVERSEAS ACTIVITY. TITLE VI, SECTION 27, OF THE BUREAU OF THE BUDGET CIRCULAR NO. A-4 OF 2 MAY 1955 WHICH IMPLEMENTED THE PUBLIC LAW STATES THAT TO BE ELIGIBLE FOR TRAVEL AND TRANSPORTATION UNDER THE ACT AN EMPLOYEE MUST HAVE SATISFACTORILY COMPLETED AN AGREED PERIOD OF SERVICE, OR, IF SERVING WITHOUT A WRITTEN AGREEMENT, HE MUST HAVE SATISFACTORILY SERVED A PERIOD NOT LESS THAN THE PERIOD OF SERVICE GENERALLY APPLICABLE TO THE EMPLOYEES OF THE DEPARTMENT CONCERNED SERVING AT SUCH POST OF DUTY IN THE GEOGRAPHIC AREA. UNDER THE PROVISIONS, IS IT MANDATORY ON THE PART OF THE NAVY UPON THE EMPLOYEE'S REQUEST TO NEGOTIATE A NEW EMPLOYMENT AGREEMENT FOR AN ADDITIONAL PERIOD OF OVERSEAS SERVICE AND TO PROVIDE ROUND-TRIP TRAVEL AND TRANSPORTATION IN THE CASE OF AN EMPLOYEE HIRED LOCALLY AND WITH WHOM NO WRITTEN AGREEMENT HAS BEEN NEGOTIATED?

WE HAVE HELD UNDER 5 U.S.C. 73B-3 THAT WHEN AN EMPLOYEE EXECUTES AN EMPLOYMENT AGREEMENT CONSISTENT WITH THE STATUTORY LIMITATIONS, AND SERVES THE PERIOD SPECIFIED, HE HAS A VESTED RIGHT TO OTHERWISE PROPER RETURN TRAVEL EXPENSES FOR SEPARATION, NOTWITHSTANDING HE MAY HAVE BEEN HIRED LOCALLY AT THE OVERSEAS STATION. SEE 31 COMP. GEN. 683. ALSO SEE 30 COMP. GEN. 231; 32 ID. 323. WHEN NO AGREEMENT IS EXECUTED WITH A LOCAL HIRE, HOWEVER, THERE IS NO OBLIGATION UPON THE AGENCY TO PROVIDE SUCH EXPENSES, IN THE ABSENCE OF AN ADMINISTRATIVE REQUIREMENT TO THAT EFFECT. THE ESTABLISHING OF A TOUR OF DUTY IN AN OVERSEAS AREA FOR EMPLOYEES SERVING UNDER EMPLOYMENT AGREEMENTS IN ITSELF DOES NOT CONFER ANY RIGHTS UPON THE LOCAL HIRES WHO HAVE NOT EXECUTED AGREEMENTS. CF. 32 COMP. GEN. 183. THEREFORE, QUESTIONS A AND B ARE ANSWERED IN THE NEGATIVE. FOLLOWS THAT NO ANSWER TO QUESTION C IS REQUIRED.

CONCERNING QUESTION D RELATING TO ROUND-TRIP LEAVE TRAVEL, THE STATUTE DOES NOT EXCLUDE LOCAL HIRES AND THE STATUTORY REGULATIONS SPECIFICALLY REFER TO EMPLOYEES SERVING WITHOUT AGREEMENTS. OUR VIEW IS, THEREFORE, THAT OTHERWISE ELIGIBLE EMPLOYEES ARE NOT TO BE DENIED ROUND TRIP LEAVE TRAVEL UNDER THE STATUTE BECAUSE OF THEIR BEING HIRED LOCALLY WITHOUT AN EMPLOYMENT AGREEMENT. CF. 37 COMP. GEN. 848. THUS, QUESTION D IS ANSWERED IN THE AFFIRMATIVE.