B-140748, OCTOBER 29, 1959, 39 COMP. GEN. 337

B-140748, OCTOBER 29, 1959, 39 COMP. GEN. 337

CIVILIAN PERSONNEL - OVERSEAS EMPLOYEES - HOME LEAVE TRAVEL - RESIDENCE DETERMINATION AN OVERSEAS EMPLOYEE WHO DESIGNATED THE SAME PLACE ( KANSAS CITY, MISSOURI) AS HIS UNITED STATES RESIDENCE AT THE TIME OF TRANSFER OVERSEAS AND AT THE TIME OF EXECUTING THE REEMPLOYMENT AGREEMENT BUT WHO, AFTER COMPLETION OF HOME LEAVE TRAVEL WHEN HE VISITED KANSAS CITY AND NASHVILLE, TENNESSEE, REQUESTED AN AMENDED TRAVEL ORDER TO SHOW NASHVILLE AS HIS ACTUAL RESIDENCE HAS NOT ESTABLISHED THAT AN ERROR IN RESIDENCE DESIGNATION WAS MADE BUT RATHER THE EVIDENCE ESTABLISHES THAT THE EMPLOYEE'S ACTUAL PLACE OF RESIDENCE AT TIME OF TRANSFER WAS KANSAS CITY; THEREFORE, PAYMENT OF ROUND-TRIP HOME LEAVE TRAVEL AT GOVERNMENT EXPENSE TO OTHER THAN THE EMPLOYEE'S RESIDENCE IN KANSAS CITY MAY NOT BE MADE.

TO N. M. TROUTWINE, FEDERAL AVIATION AGENCY, OCTOBER 29, 1959:

YOUR LETTER OF AUGUST 26, 1959, FORWARDED HERE SEPTEMBER 11 BY THE AUDIT BRANCH, FEDERAL AVIATION AGENCY, REQUESTS OUR DECISION WHETHER THE ENCLOSED TRAVEL VOUCHER FOR $78.42 MAY BE CERTIFIED FOR PAYMENT TO MR. PAUL N. FLANARY, WHO RECLAIMS THAT AMOUNT, IN THE CIRCUMSTANCES DESCRIBED IN YOUR LETTER, AS OUTLINED BELOW.

THE BASIC QUESTION TO BE DETERMINED CONCERNS MR. FLANARY'S "ACTUAL PLACE OF RESIDENCE" IN THE UNITED STATES WITHIN THE PURVIEW OF THE ACT OF AUGUST 31, 1954, PUBLIC LAW 737, 68 STAT. 1008. THAT STATUTE AMENDED SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 5 AMENDED SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 5 U.S.C. 73B-3, IN PERTINENT PART, TO AUTHORIZE AT GOVERNMENT EXPENSE THE ROUND-TRIP TRAVEL OF EMPLOYEES AND TRANSPORTATION OF THEIR IMMEDIATE FAMILIES FROM THEIR OVERSEAS POSTS OF DUTY TO THEIR "PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT OR TRANSFER TO SUCH OVERSEAS POSTS OF DUTY," FOR THE PURPOSE OF TAKING LEAVE PRIOR TO THEIR SERVING ANOTHER TOUR OF DUTY OVERSEAS UNDER A NEW WRITTEN AGREEMENT ENTERED INTO BEFORE DEPARTING FROM THE OVERSEAS POST FOR SUCH LEAVE PURPOSE.

YOU SAY THAT IN HIS AGREEMENT OF APRIL 9, 1957, WHEN MR. FLANARY, WAS TRANSFERRED FROM KANSAS CITY, MISSOURI, TO HONOLULU, HAWAII, HE DESIGNATED KANSAS CITY, MISSOURI, AS HIS ACTUAL PLACE OF RESIDENCE. ON FEBRUARY 2, 1959, IN SUBMITTING HIS REQUEST FOR "HOME LEAVE" TRAVEL, HE CERTIFIED THAT "AT THE TIME OF MY TRANSFER TO THIS OVERSEAS POST, MY ACTUAL PLACE OF RESIDENCE IN THE CONTINENTAL UNITED STATES WAS KANSAS CITY, MISSOURI.' HENCE, THE RENEWAL AGREEMENT SIGNED BY MR. FLANARY ON FEBRUARY 4, 1959, STATED HIS ACTUAL RESIDENCE WAS KANSAS CITY. THEREFORE, ON FEBRUARY 4, 1959, THE REGIONAL PERSONNEL OFFICE--- TO WHOM, YOU SAY, SUCH AUTHORITY IS DELEGATED--- APPROVED KANSAS CITY AS HIS ACTUAL RESIDENCE FOR THE REEMPLOYMENT LEAVE TRAVEL PURPOSES. THAT APPROVAL YOU SAY WAS BASED UPON MR. FLANARY'S CERTIFICATION OF FEBRUARY 2, 1959, AND OTHER INFORMATION IN THE PERSONNEL FILE SHOWING HE HAD LIVED IN KANSAS CITY MORE THAN TEN YEARS JUST PRIOR TO HIS TRANSFER TO HONOLULU. TRAVEL ORDER NO. 69-493 DATED FEBRUARY 19, 1959, WAS ISSUED ACCORDINGLY, AUTHORIZING TRAVEL FROM HONOLULU TO KANSAS CITY AND RETURN.

MR. FLANARY AND HIS WIFE PERFORMED THE AUTHORIZED ROUND TRIP BY COMMERCIAL AIRLINE TO AND FROM KANSAS CITY, DURING THE PERIOD MAY 16 TO JUNE 14, 1959. DURING THAT PERIOD, HOWEVER, AFTER FOUR DAYS OF THE "HOME LEAVE" IN KANSAS CITY, THEY TRAVELED BY RAIL AT PERSONAL EXPENSE TO NASHVILLE, TENNESSEE, FOR FOUR DAYS OF THE LEAVE, RETURNING BY RAIL TO KANSAS CITY FOR TEN DAYS OF THE LEAVE (FROM 2:30 P.M., JUNE 3 TO 3:45 P.M., JUNE 10). THEY PROCEEDED ON THEIR RETURN TRIP VIA LOS ANGELES--- WHERE APPROXIMATELY THREE AND ONE-HALF DAYS OF THE LEAVE WAS TAKEN EN ROUTE ( JUNE 11 TO NOON JUNE 14/--- ARRIVING IN HONOLULU 5:45 P.M. LOCAL TIME JUNE 14.

HOWEVER, MR. FLANARY HAS REQUESTED THAT NASHVILLE--- IN LIEU OF KANSAS CITY--- BE APPROVED AS HIS "ACTUAL RESIDENCE" FOR THE LEAVE TRAVEL PERIOD. THE REASONS HE STATES ESSENTIALLY ARE CONTAINED IN HIS MEMORANDUM OF JULY 6, 1959, AS FOLLOWS:

RECENTLY, I HAVE REVIEWED REGIONAL ORDER HO-90-1 AND I BELIEVE I SHOULD HAVE HAD OUR TRANSPORTATION PAID TO NASHVILLE, TENN., SINCE THAT IS MY HOME ON THE MAINLAND. I WAS BORN THERE, MY MOTHER AND FIVE SISTERS LIVE THERE, THE FAMILY BURIAL PLOT IS THERE, I LIVED THERE UNTIL I WENT TO WORK FOR THE GOVERNMENT IN 1934 AND INTEND TO LIVE THERE WHEN I RETIRE FROM GOVERNMENT SERVICE.

DURING MY RECENT P.L. 737 LEAVE WE DID TRAVEL BY RAIL FROM KANSAS CITY TO NASHVILLE AND RETURN FOR THE PURPOSE OF VISITING MY RELATIVES THERE.

IT IS THEREFORE REQUESTED THAT TRAVEL ORDER 69-493 DATED 2-19-50 BE AMENDED TO AUTHORIZE TRAVEL FROM HONOLULU, HAWAII TO NASHVILLE, TENN. AND RETURN AND THAT I BE REIMBURSED ACCORDINGLY. THE RAIL AND PULLMAN TICKETS FOR THIS ADDITIONAL TRAVEL ARE ATTACHED.

A COPY OF REGIONAL ORDER HO-90-1, CITED BY MR. FLANARY, DID NOT ACCOMPANY YOUR SUBMISSION, AND, THEREFORE, WE ARE NOT PASSING SPECIFICALLY UPON THE VALIDITY UNDER THE STATUTE OF THE CONTENTS THEREOF. WE NOTE, HOWEVER, BY MEMORANDUM DATED JULY 13, 1959, CODE HO 90, THE REGIONAL PERSONNEL OFFICER ADVISED MR. FLANARY AS FOLLOWS:

WE ARE IN AGREEMENT WITH THE STATEMENTS IN YOUR MEMORANDUM DATED JULY 6, 1959 THAT NASHVILLE, TENNESSEE, WAS YOUR ACTUAL PLACE OF RESIDENCE AT THE TIME YOU ACCEPTED OVERSEAS EMPLOYMENT, AND THUS IS THE LOCATION TO WHICH YOU ARE ENTITLED TRAVEL BENEFITS UNDER PUBLIC LAW 737.

YOU SHOULD SUBMIT A NEW CD-70 EMPLOYMENT AGREEMENT, SHOWING NASHVILLE TO BE YOUR ACTUAL PLACE OF RESIDENCE. WE ARE FORWARDING YOUR TRAVEL VOUCHER TO THE CHIEF, AUDIT BRANCH, HO-80, WITH A COPY OF THIS MEMORANDUM.

THE PROVISIONS OF SUBSECTION 7 (A) OF THE ACT, AS AMENDED, 5 U.S.C. 73B-3 (A), PROVIDE THAT FOR HOME LEAVE THE PLACE OF ACTUAL RESIDENCE OR "AT THE TIME OF APPOINTMENT OR TRANSFER TO SUCH OVERSEAS POSTS OF DUTY" IS CONTROLLING. SECTION 27 (B) OF THE BUREAU OF THE BUDGET REGULATIONS ( CIRCULAR NO. A-4), CONTAINING THE SAME REQUIREMENT, PROVIDES THAT IF LEAVE IS TAKEN AT ANOTHER LOCATION WITHIN THE COUNTRY, TERRITORY, OR POSSESSION IN WHICH SUCH PLACE OF ACTUAL RESIDENCE IS LOCATED, THE TRAVEL AND TRANSPORTATION EXPENSES ALLOWABLE SHALL NOT EXCEED THOSE ALLOWED OVER A USUALLY TRAVELED ROUTE BETWEEN THE OVERSEAS POST AND SUCH PLACE OF ACTUAL RESIDENCE AND RETURN TO THE SAME OR SOME OTHER OVERSEAS POST OF DUTY. THAT REGARD WE HAVE HELD THAT, UNDER THE LANGUAGE OF THE STATUTE, THE LOCATION OF THE PLACE OF ACTUAL RESIDENCE FOR BOTH SEPARATION AND HOME LEAVE TRAVEL--- AS ESTABLISHED "AT THE TIME" OF APPOINTMENT OR TRANSFER--- IS NOT AFFECTED BY CHANGES IN THE EMPLOYEE'S INTENTIONS SUBSEQUENT TO THE "TIME" OF SUCH APPOINTMENT OR TRANSFER. B-136029, JUNE 24, 1958, 37 COMP. GEN. 846. SEE, GENERALLY, 35 COMP. GEN. 101, 103, REGARDING "PLACES OF ACTUAL RESIDENCE; " ALSO SEE 35 ID. 244; COMPARE 37 COMP. GEN. 113, 115 (QUESTION 3). THE CITED LAW AND REGULATIONS DO NOT PRECLUDE CORRECTION OF ERRORS IN THE OVERSEAS ASSIGNMENT OR TRANSFER RECORDS, WHEN IT IS LATER SHOWN CLEARLY THAT, IN FACT, THE PLACE OF ACTUAL RESIDENCE WAS OTHER THAN THE PLACE NAMED IN THE AGREEMENT AND RELATED PAPERS. A CLEAR SHOWING OF SUCH AN ERROR DOES NOT APPEAR TO HAVE BEEN MADE IN THIS CASE. IN FACT, THE RECORD BEFORE US REASONABLY MAY BE VIEWED AS ESTABLISHED THAT THE ACTUAL PLACE OF RESIDENCE AT THE TIME OF THE TRANSFER TO HAWAII WAS KANSAS CITY.

THEREFORE, THE VOUCHER WHICH, WITH ITS ATTACHMENTS, IS RETURNED HEREWITH LAWFULLY MAY NOT BE CERTIFIED FOR PAYMENT UPON THE PRESENT RECORD.