B-141599, FEB. 4, 1960

B-141599: Feb 4, 1960

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THE ADMINISTRATIVE OFFICE HAS REFUSED TO PAY THE VOUCHER BUT HAS APPROVED IT FOR SUBMISSION BY YOU AS A "TEST CASE" BECAUSE YOU DO NOT AGREE WITH THE ADMINISTRATIVE DETERMINATION THAT YOU ARE NOT ENTITLED TO BENEFITS UNDER THE FOREGOING STATUTE. YOU CONTEND THAT YOU HAVE COMPLIED WITH PARAGRAPH 3614.1 (C). BY EXECUTING A STATEMENT SHOWING YOUR PLACE OF RESIDENCE IS PARKLAND. WASHINGTON (VICINITY OF SEATTLE) AND THAT YOU HAVE NOT RELINQUISHED SUCH PLACE OF RESIDENCE. YOU CONTEND THAT YOU HAVE MET THE REQUIREMENTS OF PARAGRAPH 3614.2 OF THE FOREGOING MANUAL IN THAT YOU COMPLETED AN AGREED PERIOD OF SERVICE AT AN OVERSEAS POST OF DUTY AND EXECUTED A WRITTEN AGREEMENT. YOU CALL ATTENTION TO THE SAME PARAGRAPH WHICH FURTHER PROVIDES THAT AN EMPLOYEE HIRED LOCALLY OUTSIDE THE CONTINENTAL UNITED STATES MAY BE ALLOWED TRAVEL AND TRANSPORTATION EXPENSES FOR HIMSELF AND FAMILY FOR THE PURPOSE OF TAKING LEAVE IN THE UNITED STATES IF HE STATES THAT HIS RESIDENCE AT THE TIME OF EMPLOYMENT OVERSEAS WAS IN THE UNITED STATES AND ESTABLISHES TO THE SATISFACTION OF LOCAL ADMINISTRATIVE OFFICIALS THAT THE PLACE OF RESIDENCE WAS AS STATED.

B-141599, FEB. 4, 1960

TO MRS. RUTH F. THORSON:

YOUR LETTER OF DECEMBER 24, 1959, TRANSMITS FOR OUR CONSIDERATION A TRAVEL VOUCHER, FOR $501, COVERING TRANSPORTATION EXPENSES FOR YOU AND YOUR DEPENDENTS FROM ANCHORAGE, ALASKA, TO SEATTLE, WASHINGTON, AND RETURN, FOR THE PURPOSE OF VACATION LEAVE UNDER PUBLIC LAW 737, APPROVED AUGUST 31, 1954. THE ADMINISTRATIVE OFFICE HAS REFUSED TO PAY THE VOUCHER BUT HAS APPROVED IT FOR SUBMISSION BY YOU AS A "TEST CASE" BECAUSE YOU DO NOT AGREE WITH THE ADMINISTRATIVE DETERMINATION THAT YOU ARE NOT ENTITLED TO BENEFITS UNDER THE FOREGOING STATUTE.

YOU CONTEND THAT YOU HAVE COMPLIED WITH PARAGRAPH 3614.1 (C), STANDARD PRACTICE MANUAL, U.S. DEPARTMENT OF COMMERCE, CAA PART III--- PERSONNEL, BY EXECUTING A STATEMENT SHOWING YOUR PLACE OF RESIDENCE IS PARKLAND, WASHINGTON (VICINITY OF SEATTLE) AND THAT YOU HAVE NOT RELINQUISHED SUCH PLACE OF RESIDENCE. FURTHER, YOU CONTEND THAT YOU HAVE MET THE REQUIREMENTS OF PARAGRAPH 3614.2 OF THE FOREGOING MANUAL IN THAT YOU COMPLETED AN AGREED PERIOD OF SERVICE AT AN OVERSEAS POST OF DUTY AND EXECUTED A WRITTEN AGREEMENT, BEFORE PERFORMING THE TRAVEL COVERED BY THE VOUCHER HERE INVOLVED, TO SERVE ANOTHER PERIOD OF DUTY AT THE SAME OVERSEAS POST. ALSO, YOU CALL ATTENTION TO THE SAME PARAGRAPH WHICH FURTHER PROVIDES THAT AN EMPLOYEE HIRED LOCALLY OUTSIDE THE CONTINENTAL UNITED STATES MAY BE ALLOWED TRAVEL AND TRANSPORTATION EXPENSES FOR HIMSELF AND FAMILY FOR THE PURPOSE OF TAKING LEAVE IN THE UNITED STATES IF HE STATES THAT HIS RESIDENCE AT THE TIME OF EMPLOYMENT OVERSEAS WAS IN THE UNITED STATES AND ESTABLISHES TO THE SATISFACTION OF LOCAL ADMINISTRATIVE OFFICIALS THAT THE PLACE OF RESIDENCE WAS AS STATED. YOU CONTEND YOU HAVE COMPLIED WITH THOSE REQUIREMENTS.

THE FOREGOING STATUTE 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 * * * 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 * * *.'

THE RECORD SHOWS THAT YOU HAVE RESIDED IN ALASKA SINCE 1940. THE STANDARD FORM 57 FURNISHED BY YOU TO SECURE YOUR EMPLOYMENT WITH THE FEDERAL AVIATION AGENCY IN 1955, SHOWS YOUR LEGAL OR VOTING RESIDENCE AS ANCHORAGE, ALASKA. THERE IS NOTHING IN THE RECORD TO SHOW THAT UPON EMPLOYMENT WITH THAT AGENCY YOU SIGNED AN AGREEMENT TO REMAIN IN ALASKA A SPECIFIC PERIOD OF TIME. FURTHER, THE RECORD SHOWS THAT YOUR AGENCY HAS CONSIDERED YOUR REQUEST FOR A CHANGE OF DOMICILE BUT BASED UPON THE INFORMATION SHOWN AT THE TIME OF EMPLOYMENT IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT YOUR DOMICILE IS IN ALASKA. THE RECORD ALSO SHOWS THE ADMINISTRATIVE OFFICE REFUSED TO CHANGE THAT DETERMINATION. FURTHER, THE RECORD SHOWS THAT THE TRAVEL COVERED BY THE VOUCHER WAS PERFORMED WITHOUT OFFICIAL TRAVEL ORDERS AND AFTER IT WAS ADMINISTRATIVELY DETERMINED YOUR DOMICILE WAS IN ALASKA.

UNDER THE LANGUAGE OF THE STATUTE QUOTED ABOVE THE LOCATION OF THE PLACE OF "ACTUAL RESIDENCE" FOR HOME LEAVE PURPOSES IS ESTABLISHED AT THE "TIME" OF THE EMPLOYEE'S APPOINTMENT TO AN OVERSEAS POST AND IS NOT AFFECTED BY CHANGES IN THE EMPLOYEE'S INTENTION SUBSEQUENT TO THE "TIME" OF SUCH APPOINTMENT. THE LEGISLATIVE HISTORY OF THE ACT DOES NOT SHOW A CONGRESSIONAL INTENTION TO THE CONTRARY. 37 COMP. GEN. 846. FURTHER, WE HAVE HELD THAT THE PLACE CONSTITUTING THE "ACTUAL RESIDENCE" IS FOR DETERMINATION UPON THE FACTS AND CIRCUMSTANCES OF EACH INDIVIDUAL CASE AND THAT THE RESPONSIBILITY FOR THAT DETERMINATION RESTS PRIMARILY WITH THE ADMINISTRATIVE OFFICE. 35 COMP. GEN. 101. THE FACTS SUBMITTED BY YOU ARE NOT SUCH AS WOULD WARRANT OUR OFFICE HOLDING THAT THE ADMINISTRATIVE DETERMINATION WAS ERRONEOUS.

IN VIEW OF THE FOREGOING COMMENTS, NO BASIS EXISTS FOR PAYMENT OF THE VOUCHER, WHICH IS BEING RETAINED IN OUR OFFICE.