B-142851, JULY 20, 1960, 40 COMP. GEN. 33

B-142851, JULY 20, 1960, 40 COMP. GEN. 33

OVERSEAS EMPLOYEES - BI-NATIONAL GRANTEE SERVICE - HOME LEAVE - ELIGIBILITY UPON APPOINTMENT TO FOREIGN SERVICE THE OVERSEAS SERVICE OF AN INDIVIDUAL WHO IS EMPLOYED UNDER A GRANT AGREEMENT BY A BI-NATIONAL CENTER--- A PRIVATE, AUTONOMOUS ORGANIZATION- - ESTABLISHED UNDER AUTHORITY OF SECTION 203 OF THE UNITED STATES INFORMATION AND EDUCATIONAL EXCHANGE ACT OF 1948, 22 U.S.C. 1448, AND WHO, SUBSEQUENTLY, IS APPOINTED TO A FOREIGN SERVICE POSITION IN THE UNITED STATES INFORMATION AGENCY MAY NOT BE COUNTED AS PART OF THE "CONTINUOUS SERVICE ABROAD," REQUIRED UNDER SECTION 933 (A) OF THE FOREIGN SERVICE ACT OF 1946, 22 U.S.C. 1148 (A), FOR ENTITLEMENT TO HOME LEAVE AFTER COMPLETION OF TWO YEARS' CONTINUOUS SERVICE, THE REGULATIONS GOVERNING GRANTEE-SERVICE SPECIFICALLY PROVIDING THAT GRANTEES HAVE NEITHER FOREIGN SERVICE NOR CIVIL SERVICE STATUS AND THE BENEFITS DIFFERING FROM THOSE PROVIDED FOR FEDERAL EMPLOYEES.

TO THE DIRECTOR, UNITED STATES INFORMATION AGENCY, JULY 20, 1960:

ON MAY 9, 1960, YOUR DEPUTY ASSISTANT DIRECTOR (1ADMINISTRATION), REQUESTED OUR DECISION CONCERNING PRIOR SERVICE ABROAD BY AN INDIVIDUAL UNDER A BI-NATIONAL CENTER GRANT AGREEMENT WITH YOUR AGENCY, AND WHO SUBSEQUENTLY IS APPOINTED TO YOUR AGENCY'S FOREIGN SERVICE. A COPY OF THE GRANT AGREEMENT FORM USED BY THE AGENCY WAS ENCLOSED.

THE SPECIFIC QUESTION PRESENTED IN THE LETTER IS WHETHER SUCH IMMEDIATELY PRIOR SERVICE UNDER THE GRANT AGREEMENT MAY BE CREDITED TOWARD THE REQUIREMENT OF "TWO YEARS' CONTINUOUS SERVICE BROAD" FOR ELIGIBILITY FOR TRANSPORTATION AT GOVERNMENT EXPENSE FOR THE PURPOSE OF HOME LEAVE IN THE UNITED STATES PURSUANT TO SECTION 933 (A) OF THE FOREIGN SERVICE ACT OF 1946, 60 STAT. 1028, AS AMENDED, 22 U.S.C. 1148 (A), WHICH READS AS FOLLOWS:

(A) THE SECRETARY SHALL ORDER TO THE CONTINENTAL UNITED STATES, ITS TERRITORIES AND POSSESSIONS, ON STATUTORY LEAVE OF ABSENCE EVERY OFFICER AND EMPLOYEE OF THE SERVICE WHO IS A CITIZEN OF THE UNITED STATES UPON COMPLETION OF TWO YEARS' CONTINUOUS SERVICE ABROAD OR AS SOON AS POSSIBLE THEREAFTER.

THE REFERRED-TO GRANT AGREEMENT IS MADE UNDER THE AGENCY'S AUTHORITY AS PROVIDED IN SECTION 2 OF REORGANIZATION PLAN NO. 8 OF 1953 AND IN SECTIONS 801 (1) AND 203 OF THE UNITED STATES INFORMATION AND EDUCATIONAL EXCHANGE ACT OF 1948, AS AMENDED 22 U.S.C. 1471 AND 1448, AUTHORIZING "GRANTS OF MONEY, SERVICES, OR MATERIALS" TO INDIVIDUALS AND TO PUBLIC AND PRIVATE ORGANIZATIONS "FOR ASSISTANCE TO * * * COMMUNITY CENTERS (NOW CALLED BI- NATIONAL CENTERS) ABROAD, FOUNDED OR SPONSORED BY CITIZENS OF THE UNITED STATES * * *.' THE QUESTION FOR DETERMINATION IS WHETHER THE BENEFITS WHICH THE UNITED STATES ATTAINS THROUGH A GRANT OF FUNDS TO AN INDIVIDUAL UNDER SUCH AN AGREEMENT--- WHICH HAS FOR ITS PURPOSE ASSISTANCE TO SUCH A CENTER--- CONSTITUTE "CONTINUOUS SERVICE ABROAD" WITHIN THE MEANING OF THOSE WORDS AS USED IN SECTION 1148 (A). WE SHOULD CONSIDER SECTION 1148 AS A WHOLE, AND THE PHRASE JUST QUOTED SHOULD NOT BE READ OUT OF CONTEXT. SECTION 1148 EXPRESSLY CONCERNS THE STATUTORY LEAVE OF ABSENCE OF "EVERY OFFICER AND EMPLOYEE OF THE SERVICE * * *.' WE FEEL THAT THE STATUTE'S REFERENCE TO "TWO YEARS' CONTINUOUS SERVICE ABROAD"--- AS DEFINED IN THE DEPARTMENT OF STATE, FOREIGN SERVICE MANUAL, VOLUME 1, PART IV, SECTION 452.1--- RELATES TO SERVICE RENDERED AS AN OFFICER OR EMPLOYEE OF A FEDERAL CIVILIAN AGENCY OR IN THE ARMED FORCES OF THE UNITED STATES.

IN THAT REGARD THE LETTER OF MAY 9 SAYS A BI-NATIONAL CENTER IS A NONPOLITICAL, NONPROFIT, NONSECTARIAN, CULTURAL INSTITUTION, WHICH IS GOVERNED BY A BOARD OF DIRECTORS COMPOSED OF NATIONALS OF THE HOST COUNTRY AND UNITED STATES CITIZENS RESIDENT IN THAT COUNTRY; AND THAT THE AGENCY ASSIGNS UNITED STATES NATIONALS TO ADMINISTRATIVE AND ACADEMIC POSITIONS IN CERTAIN CENTERS PURSUANT TO GRANT AGREEMENTS SUCH AS WAS ENCLOSED WITH THE LETTER. ALSO, IT IS STATED, CONSIDERABLE FLEXIBILITY WILL RESULT IF, IN THE APPOINTMENT OF USIA FOREIGN SERVICE PERSONNEL, THE AGENCY MAY CREDIT SUCH A GRANTEE'S SERVICE FOR PURPOSES OF SECTION 933 (A), 22 U.S.C. 1148 (A).

IN CONSIDERING THE STATUS OF SUCH GRANTEES, WE NOTE THAT SECTION 861 OF THE EXISTING ADMINISTRATIVE REGULATIONS OF THE AGENCY (1MOAV-B) READS IN PART, AS FOLLOWS:

B. A BI-NATIONAL CENTER IS A PRIVATE, AUTONOMOUS ORGANIZATION, GOVERNED BY A DEMOCRATICALLY ELECTED BOARD OF DIRECTORS MADE UP OF AMERICAN RESIDENTS AND NATIONAL OF THE HOST COUNTRY, AND ENGAGED IN ACTIVITIES DESIGNED TO FOSTER BETTER UNDERSTANDING BETWEEN THE PEOPLE OF THE HOST COUNTRY AND THE UNITED STATES.

C. THIS SECTION CONTAINS POLICIES, REGULATIONS AND PROCEDURES FOR THE AWARDING OF GRANTS TO UNITED STATES CITIZENS TO ENABLE THEM TO PROCEED ABROAD AND TO WORK FOR PRIVATE, BI-NATIONAL ORGANIZATIONS. RECIPIENTS OF THIS TYPE OF GRANT ARE CALLED BI-NATIONAL CENTER GRANTEES. THEY HAVE NEITHER FOREIGN SERVICE NOR CIVIL SERVICE STATUS. (ITALICS SUPPLIED.)

SUBSECTION 866.1 DEALS WITH "1BENEFITS" AND SPECIFIES THAT ALL BENEFITS, RIGHTS AND PRIVILEGES TO WHICH A BI-NATIONAL CENTER GRANTEE IS ENTITLED ARE SPECIFIED IN HIS AGREEMENT,"1GRANT FOR SERVICE IN A BI-NATIONAL CENTER ABROAD" AND/OR IN THE ACCOMPANYING TRAVEL ORDER. FURTHER, SUBSECTIONS 866.2 AND 866.3 LIMIT GRANTEES' ELIGIBILITY TO PARTICIPATE IN GROUP HEALTH PLANS IN EFFECT IN THE AGENCY, BUT INDICATE THAT GRANTEES MAY BE COVERED BY OLD AGE AND SURVIVORS INSURANCE ( MOA-V B-503). SECTION 865 INDICATES THAT SOME ADMINISTRATIVE SUPERVISION AND TRAINING OF SUCH GRANTEES IS MAINTAINED. SECTION 867 PRESCRIBES CERTAIN HOURS OF DUTY AND PROVIDES FOR ABSENCES FROM DUTY. HOWEVER, THE MANUAL PROVISIONS DO NOT INDICATE THAT SUCH ABSENCES FROM DUTY CONSTITUTE "STATUTORY LEAVE OF ABSENCE.'

REGARDING THE MATTER OF A GRANTEE'S TRANSPORTATION, WE NOTE THAT PARAGRAPHS 1 AND 4 OF THE GRANT AGREEMENT OBLIGATE THE AGENCY TO RETURN A GRANTEE AT GOVERNMENT EXPENSE TO HIS RESIDENCE IN THE UNITED STATES UPON COMPLETION OF A MINIMUM OF TWO YEARS' SERVICE ABROAD. SUBSECTION 867.2D OF THE MANUAL, HOWEVER, PROVIDES "UPON THE COMPLETION OF A TOUR OF DUTY AT AN OVERSEAS CENTER AS DETERMINED BY THE AGENCY, A GRANTEE MAY BE RETURNED TO THE UNITED STATES AND AUTHORIZED 30 CALENDAR DAYS OF ABSENCE FROM DUTY PROVIDED HE HAS AGREED TO SERVE AN ADDITIONAL TWO YEAR TERM OF SERVICE IN THE BI-NATIONAL CENTER PROGRAM OR IS TRANSFERRED TO ANOTHER PHASE OF THE AGENCY'S PROGRAM WITHOUT A BREAK IN SERVICE.' (ITALICS SUPPLIED.) ASSUME THE PHRASE TO "ANOTHER PHASE" OF THE AGENCY'S PROGRAM HAS REFERENCE TO ONLY THOSE CATEGORIES OF GRANTEE SERVICE WHICH ARE DESCRIBED IN SUBPARAGRAPHS 9 (A) TO (E) OF THE CONTRACT FORM.

THEREFORE, AND IN THE LIGHT OF OTHER PROVISIONS OF THE MANUAL RELATING TO THE HOME LEAVE OF USIA FOREIGN SERVICE RESERVE AND STAFF PERSONNEL AND OTHER EMPLOYEES OVERSEAS (VIZ. SECTIONS 1022, 412, 417, AND 600 TO 649 OF MOA V-B), OUR VIEW IS THAT THE PERIOD OF SERVICE OF A BI-NATIONAL CENTER GRANTEE UNDER SECTION 860 ET. SEQ. MAY NOT BE COUNTED AS PART OF "CONTINUOUS SERVICE ABROAD" BY AN ,EMPLOYEE OF THE SERVICE" WITHIN TH MEANING OF 22 U.S.C. 1148.

IN THE PRESENT CIRCUMSTANCES IT MAY BE THAT APPROPRIATE LANGUAGE FOR THE PURPOSE ADMINISTRATIVELY DESIRED SHOULD BE ADDED TO THE INFORMATION AND EDUCATIONAL EXCHANGE ACT, 22 .S.C., CHAPTER 18.