B-141477, JAN. 13, 1960

B-141477: Jan 13, 1960

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

REQUESTS OUR DECISION CONCERNING THE ENTITLEMENT OF AN EMPLOYEE TO RETURN COST OF TRAVEL AND TRANSPORTATION EXPENSES INCIDENT TO HOME LEAVE WHEN IT SUBSEQUENTLY DEVELOPS AFTER HOME LEAVE AND RETURN TO DUTY THAT SHE WILL BE UNABLE TO FULFILL HER AGREEMENT FOR ONE YEAR'S ADDITIONAL SERVICE BECAUSE OF PREGNANCY. THE REQUIREMENT FOR A VOUCHER WILL BE WAIVED IN THIS INSTANCE. AFTER WHICH YOU SAY SHE HAS INDICATED SHE WILL RESIGN WITHOUT COMPLETING THE TOUR OF DUTY REQUIRED UNDER THE ADMINISTRATIVE EXPENSES ACT OF 1946. YOU FURTHER STATE THAT SINCE THE EMPLOYEE WAS DEEMED TO BE AWARE OF HER PREGNANCY AT THE TIME SHE SIGNED THE AGREEMENT FOR AN ADDITIONAL TOUR OF DUTY SHE MUST HAVE KNOWN THAT SHE COULD NOT COMPLETE THE AGREED ADDITIONAL PERIOD OF SERVICE.

B-141477, JAN. 13, 1960

TO RICHARD V. WOOLRIDGE, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE:

YOUR LETTER OF DECEMBER 11, 1959, REQUESTS OUR DECISION CONCERNING THE ENTITLEMENT OF AN EMPLOYEE TO RETURN COST OF TRAVEL AND TRANSPORTATION EXPENSES INCIDENT TO HOME LEAVE WHEN IT SUBSEQUENTLY DEVELOPS AFTER HOME LEAVE AND RETURN TO DUTY THAT SHE WILL BE UNABLE TO FULFILL HER AGREEMENT FOR ONE YEAR'S ADDITIONAL SERVICE BECAUSE OF PREGNANCY.

WE NOTE THE STATEMENT CONTAINED IN THE SECOND PARAGRAPH OF YOUR LETTER, AS FOLLOWS:

"I KNOW, AS A CERTIFYING OFFICER, SECTION 3 OF THE ACT OF DECEMBER 29, 1941, U.S.C. 82 (D) GIVES ME THE RIGHT TO "APPLY FOR AND OBTAIN A DECISION ON ANY QUESTION OF LAW INVOLVED IN A PAYMENT ON ANY VOUCHERS PRESENTED TO ME FOR CERTIFICATION" PROVIDING A VOUCHER ACCOMPANIES MY REQUEST TO YOUR OFFICE. HOWEVER, IN THIS CASE A VOUCHER CANNOT BE PRESENTED AND I DO NOT FEEL THAT THE EMPLOYEE'S FINAL PAYROLL SHOULD BE HELD UP, PENDING A DECISION FROM YOUR OFFICE, IN VIEW OF THE QUESTION INVOLVED.'

HOWEVER, THE REQUIREMENT FOR A VOUCHER WILL BE WAIVED IN THIS INSTANCE.

YOU STATE THAT THE EMPLOYEE APPLIED FOR HOME LEAVE TRAVEL AFTER SIGNING AN AGREEMENT THAT SHE WOULD REMAIN IN THE GOVERNMENT SERVICE FOR ONE YEAR AFTER RETURNING TO DUTY AT THE EXPIRATION OF HER HOME LEAVE. APPROXIMATELY FOUR MONTHS AFTER HER RETURN TO DUTY THE EMPLOYEE REQUESTED SICK LEAVE BECAUSE OF THE EXPECTED BIRTH OF A CHILD, AFTER WHICH YOU SAY SHE HAS INDICATED SHE WILL RESIGN WITHOUT COMPLETING THE TOUR OF DUTY REQUIRED UNDER THE ADMINISTRATIVE EXPENSES ACT OF 1946, 5 U.S.C. 73B-3. YOU FURTHER STATE THAT SINCE THE EMPLOYEE WAS DEEMED TO BE AWARE OF HER PREGNANCY AT THE TIME SHE SIGNED THE AGREEMENT FOR AN ADDITIONAL TOUR OF DUTY SHE MUST HAVE KNOWN THAT SHE COULD NOT COMPLETE THE AGREED ADDITIONAL PERIOD OF SERVICE. WHILE THERE APPEARS TO BE SOME CONTROVERSY CONCERNING THE CORRECTNESS OF THAT CONCLUSION, WE UNDERSTAND THAT YOU QUESTION WHETHER HER SEPARATION FROM THE SERVICE MAY BE VIEWED AS ONE FOR REASONS BEYOND HER CONTROL SUCH AS TO ENTITLE HER TO BE PAID THE EXPENSES OF HER TRAVEL INCIDENT TO RETURN TO DUTY AFTER HOME LEAVE. IF NOT SO ENTITLED, YOU PROPOSE SHE REFUND BY SET OFF OR OTHERWISE THE COST OF SUCH RETURN TRAVEL.

SECTION 7 OF THE ACT, MADE APPLICABLE BY SECTION 1 TO EMPLOYEES TRANSFERRED TO OVERSEAS DUTY READS IN PART:

"* * * THAT EXPENSES OF RETURN TRAVEL AND TRANSPORTATION UPON SEPARATION FROM THE SERVICE * * * SHALL NOT BE ALLOWED UNLESS SUCH PERSONS SELECTED FOR APPOINTMENT OUTSIDE THE CONTINENTAL UNITED STATES SHALL HAVE SERVED FOR A PERIOD OF NOT LESS THAN ONE OR 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. * * *"

PARAGRAPH 8A OF THE PERSONNEL REGULATIONS OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE READ AS FOLLOWS:

"WHAT CONSTITUTES SEPARATION "FOR REASONS BEYOND THE CONTROL OF THE EMPLOYEE AND ACCEPTABLE TO THE DEPARTMENT" IS LEFT TO THE JUDGMENT OF APPOINTING OFFICIALS IN THIS DEPARTMENT.'

THEREFORE, SHOULD THE SEPARATION OF THE EMPLOYEE BE DETERMINED TO BE ACCEPTABLE TO THE PROPER OFFICIALS OF THE DEPARTMENT COUPLED WITH THE FACT THAT THE SEPARATION WAS ADMINISTRATIVELY DETERMINED TO HAVE BEEN BEYOND THE CONTROL OF THE EMPLOYEE WE WOULD NOT OBJECT TO REIMBURSING THE EMPLOYEE FOR RETURN TRAVEL AND TRANSPORTATION EXPENSES INCIDENT TO HER SEPARATION; NOR WOULD WE, UNDER SUCH ADMINISTRATIVE DETERMINATION, REQUIRE A REFUND OF HER RETURN TRAVEL EXPENSES INCIDENT TO HER HOME LEAVE TRAVEL.