B-144095, NOV. 28, 1960

B-144095, NOV. 28, 1960

TO THE SECRETARY OF THE NAVY:

ON SEPTEMBER 23, 1960, THE ASSISTANT SECRETARY OF THE NAVY (PERSONNEL AND RESERVE FORCES) REQUESTED OUR DECISION ON A NUMBER OF QUESTIONS CONCERNING TRAVEL AND TRANSPORTATION COSTS, SALARY PAYMENTS, HOME LEAVE, AND OTHER MATTERS, UNDER THE EXECUTIVE AGENCY SYSTEM NOW USED IN THE ATTACHE OFFICES BY THE THREE MILITARY DEPARTMENTS.

THE ASSISTANT SECRETARY SAYS HE UNDERSTANDS THE EXPENSES OF THE EXECUTIVE AGENTS WILL BE BUDGETED FOR THE FISCAL YEAR 1962. UNTIL ALLOTMENTS ARE GIVEN EACH EXECUTIVE AGENT UNDER APPROPRIATIONS FOR FISCAL YEAR 1962, THE SYSTEM WILL BE OPERATED ON A REIMBURSABLE BASIS. FOR EXAMPLE, AT AN ATTACHE POST WHERE THE NAVY HAS BEEN DESIGNATED THE EXECUTIVE AGENT, IT WILL BE REIMBURSED BY THE ARMY OR BY THE AIR FORCE FOR EXPENSES INCURRED BY THE NAVY ON BEHALF OF EACH OF THE OTHER DEPARTMENTS. WHEN EITHER OF THE OTHER MILITARY DEPARTMENTS HAS BEEN DESIGNATED AS EXECUTIVE AGENT, THAT DEPARTMENT WILL BE REIMBURSED BY THE NAVY FOR EXPENSES IT INCURS IN BEHALF OF THE NAVY. THE FOLLOWING SITUATION HAS OCCURRED IN THOSE CIRCUMSTANCES. A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE ARMY IN COPENHAGEN, DENMARK, WILL COMPLETE HER TOUR OF DUTY IN THE NEAR FUTURE. SHE HAS REQUESTED ASSIGNMENT TO ANOTHER POST OF DUTY BY THE DEPARTMENT OF THE ARMY. THE NAVY WAS DESIGNATED THE EXECUTIVE AGENT AT THE POST IN DENMARK. THEREFORE, THE EMPLOYEE WAS TRANSFERRED TO THE DEPARTMENT OF THE NAVY ROLLS FOR PAY PURPOSES ONLY ON DECEMBER 27, 1959, BUT SHE WILL REMAIN AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY UNTIL COMPLETION OF HER PRESENT TOUR OF DUTY. WE ASSUME, IN THE CASE PRESENTED, THE EMPLOYEE UPON TRANSFER TO THE NEW POST OF DUTY WILL REMAIN AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY. CONCERNING THAT SITUATION, THE FOLLOWING QUESTIONS ARE SUBMITTED FOR OUR DECISION:

"A. MAY THE DEPARTMENT OF THE NAVY, AS EXECUTIVE AGENT, NEGOTIATE A NEW EMPLOYMENT AGREEMENT WITH THE EMPLOYEE AND PROVIDE FOR HER RETURN TRANSPORTATION TO THE PLACE OF ACTUAL RESIDENCE AT THE TIME OF ASSIGNMENT TO OVERSEAS DUTY FOR PURPOSES OF LEAVE PRIOR TO HER REASSIGNMENT TO ANOTHER OVERSEAS POST BY THE DEPARTMENT OF THE ARMY?

"B. SOME DOUBT EXISTS WHETHER THE NAVY AS EXECUTIVE AGENT CAN NEGOTIATE A VALID EMPLOYMENT AGREEMENT WITH AN EMPLOYEE FOR CONTINUED OVERSEAS SERVICE WITH THE ARMY AFTER A PERIOD OF LEAVE IN THE UNITED STATES. SHOULD SUCH AGREEMENT BE NEGOTIATED BY AN AUTHORIZED OFFICIAL OF THE ARMY PRIOR TO THE TIME TRAVEL IS BEGUN AND THE NAVY AS EXECUTIVE AGENT PROVIDE THE TRANSPORTATION TO THE PLACE OF ACTUAL RESIDENCE?

"C. IF QUESTION A. ABOVE, IS ANSWERED IN THE AFFIRMATIVE, MAY THE NAVY AS EXECUTIVE AGENT IN COPENHAGEN, AND SUBJECT TO REIMBURSEMENT BY THE ARMY, PAY THE COST OF TRAVEL OF THE EMPLOYEE AND OF THE TRANSPORTATION OF THE IMMEDIATE FAMILY FROM COPENHAGEN TO THE PLACE OF ACTUAL RESIDENCE AND ALSO PAY THE SALARY OF THE EMPLOYEE FOR THE PERIOD OF TRAVEL AND THROUGH THE PERIOD OF LEAVE?

"D. IN B. ABOVE, IF IT IS DETERMINED THAT THE ARMY SHOULD NEGOTIATE THE AGREEMENT WITH THE EMPLOYEE, MAY THE NAVY AS EXECUTIVE AGENT ISSUE A RETURN TRAVEL ORDER CONTAINING A CLAUSE TO THE EFFECT THAT THE EMPLOYEE IS RETURNED TO THE PLACE OF RESIDENCE FOR HOME LEAVE PRIOR TO REASSIGNMENT TO ANOTHER OVERSEAS POST BY THE DEPARTMENT OF THE ARMY?

"E. IF HOUSEHOLD EFFECTS OF THE EMPLOYEE ARE SHIPPED DIRECT FROM THE OLD TO THE NEW DUTY STATION, WHICH DEPARTMENT IS LIABLE FOR SUCH SHIPPING COSTS?

"F. IN THE CASE OF TRANSFER OF AN EMPLOYEE FROM A POST WHERE THE ARMY IS EXECUTIVE AGENT TO A POST WHERE THE NAVY IS EXECUTIVE AGENT WITHOUT THE EMPLOYEE BEING RETURNED FOR LEAVE IN THE UNITED STATES, IS THE NAVY LIABLE FOR ALL EXPENSES INCIDENT TO THE TRANSFER?

"G. AFTER ALLOTMENTS ARE MADE EACH EXECUTIVE AGENT, PROBABLY IN FISCAL YEAR 1962 AS INDICATED ABOVE, EMPLOYEES WILL BE PROVIDED TRANSPORTATION FOR PURPOSES OF LEAVE PRIOR TO ASSUMING THEIR DUTIES AT ANOTHER OVERSEAS POST UNDER A DIFFERENT DEPARTMENT. WOULD IT BE PROPER FOR THE RELEASING EXECUTIVE AGENT TO PROVIDE EXPENSES OF TRANSPORTATION AND SALARY THROUGH THE LEAVE PERIOD AND THE ACQUIRING EXECUTIVE AGENT TO ASSUME THE REMAINING EXPENSES?

THE QUESTIONS WILL BE ANSWERED IN THE ORDER PRESENTED.

FROM THE INFORMATION AVAILABLE IT APPEARS THAT THE SECRETARY OF DEFENSE HAS ISSUED INSTRUCTIONS FOR THE CONSOLIDATION OF THE ADMINISTRATION FUNCTIONS AT ALL SERVICE ATTACHE POSTS UNDER THE EXECUTIVE AGENT PRINCIPLE. AT EACH POST WHERE ATTACHES OF MORE THAN ONE SERVICE ARE STATIONED THE ATTACHE OF ONE SERVICE WILL ACT AS THE EXECUTIVE AGENT FOR THAT STATION. THE UNITED STATES CIVILIAN PERSONNEL ASSIGNED OR ATTACHED TO THE ATTACHE OFFICES WILL BE ADMINISTERED BY THE ATTACHE DESIGNATED AS EXECUTIVE AGENT FOR HIS STATION. THE PERSONNEL POLICIES OF THE EXECUTIVE AGENT SERVICE WILL APPLY REGARDING LEAVE AND TRAVEL. IT IS CONTEMPLATED THAT ALL UNITED STATES CIVILIAN PERSONNEL, WITH THE EXCEPTION OF INTELLIGENCE SPECIALISTS, WILL BE REPLACED BY PERSONNEL OF THE SERVICE ASSUMING EXECUTIVE RESPONSIBILITY UPON COMPLETION OF CURRENT TOURS OF DUTY. THE EXECUTIVE AGENCY SYSTEM WILL BE OPERATED ON A REIMBURSABLE BASIS UNTIL THE BEGINNING OF THE FISCAL YEAR 1962, AT WHICH TIME WE UNDERSTAND THAT AN APPROPRIATION IS EXPECTED TO BE AVAILABLE FOR THE FISCAL YEAR 1962, FROM WHICH NECESSARY EXPENSES WILL BE PAID BY THE EXECUTIVE AGENT FOR CIVILIAN PERSONNEL UNDER HIS JURISDICTION ON A NONREIMBURSABLE BASIS. SINCE WE DO NOT AT THIS TIME KNOW HOW THE ANTICIPATED APPROPRIATION ACT WILL BE WORDED OR WHAT EXPENSES IT WILL AUTHORIZE, OUR ANSWERS WILL BE BASED ON THE SYSTEM IN EFFECT AT THE PRESENT TIME.

THE SIGNING OF A NEW EMPLOYMENT AGREEMENT FOR AN EMPLOYEE TO EXTEND HER TOUR OF DUTY AT AN OVERSEAS POST OF DUTY IS A MATTER FOR CONSIDERATION BY THE ADMINISTRATIVE OFFICE CONCERNED, BUT WE SEE NO OBJECTION TO THE DEPARTMENTS OF THE ARMY AND NAVY AGREEING IN THE COPENHAGEN AND SIMILAR CASES THAT THE NAVY, AS AGENT FOR THE ARMY, WILL NEGOTIATE THE NEW AGREEMENT. SINCE ANY EXPENDITURE MADE BY THE DEPARTMENT OF THE NAVY AS EXECUTIVE AGENT ON BEHALF OF A DEPARTMENT OF THE ARMY EMPLOYEE IS ON A REIMBURSABLE BASIS WE WOULD HAVE NO OBJECTION TO THE DEPARTMENT OF THE NAVY'S PROVIDING FUNDS FOR THE RETURN TRANSPORTATION OF AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY TO HER PLACE OF ACTUAL RESIDENCE IN THE UNITED STATES AT THE TIME OF HER ASSIGNMENT OVERSEAS FOR THE PURPOSE OF TAKING HOME LEAVE PRIOR TO HER REASSIGNMENT TO ANOTHER OVERSEAS POST BY THE DEPARTMENT OF THE ARMY. QUESTION A. IS ANSWERED ACCORDINGLY.

IN VIEW OF THE ANSWER TO QUESTION A. NO ANSWER IS REQUIRED TO QUESTIONS B. AND D.

QUESTION C. IS ANSWERED IN THE AFFIRMATIVE.

SINCE THE EMPLOYEE IS BEING TRANSFERRED AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY FROM ONE OVERSEAS POST TO ANOTHER THAT DEPARTMENT WOULD BE LIABLE FOR THE COST OF THE TRANSPORTATION OF THE EMPLOYEE'S HOUSEHOLD EFFECTS WITHIN THE ESTABLISHED WEIGHT LIMITATIONS. QUESTION E. IS ANSWERED ACCORDINGLY.

IN ANSWERING QUESTION F. WE ASSUME, IN VIEW OF THE INSTRUCTIONS ISSUED BY THE SECRETARY OF DEFENSE, THAT WHEN AN EMPLOYEE WHO IS AT A POST WHERE THE ARMY IS EXECUTIVE AGENT TRANSFERS TO A POST WHERE THE NAVY IS EXECUTIVE AGENT THEN THE EMPLOYEE WILL TRANSFER AS AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY AND OUR ANSWER WILL BE BASED ON THIS ASSUMPTION. SECTION IA OF PUBLIC LAW 600, 60 STAT. 806, PROVIDES THAT IN CASE OF TRANSFER FROM ONE DEPARTMENT TO ANOTHER SUCH EXPENSES SHALL BE PAYABLE FROM THE FUNDS OF THE DEPARTMENT TO WHICH THE OFFICER OR EMPLOYEE IS TRANSFERRED. THEREFORE, THE DEPARTMENT OF THE NAVY WOULD BE LIABLE FOR THE EXPENSES WITHIN LEGAL LIMITATIONS INCIDENT TO THE TRANSFER. QUESTION F. IS ANSWERED ACCORDINGLY.

CONCERNING QUESTION G., AS STATED BEFORE, SINCE WE DO NOT KNOW HOW THE ANTICIPATED APPROPRIATION WILL BE WORDED OR WHAT EXPENSES IT WILL AUTHORIZE PAYMENT OF WE ARE UNABLE TO GIVE AN ANSWER AT THIS TIME.

THE ASSISTANT SECRETARY OF THE NAVY FURTHER SAYS THAT A RELATED PROBLEM NOT INVOLVING ATTACHE PERSONNEL OCCURS UNDER SECTION 1 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, 5 U.S.C. 73B-1 (A). THAT ACT PROVIDES IN CASE OF A TRANSFER FROM ONE DEPARTMENT TO ANOTHER THE EXPENSES OF TRAVEL AND TRANSPORTATION ARE PAYABLE FROM THE FUNDS OF THE DEPARTMENT TO WHICH THE EMPLOYEE IS TRANSFERRED. THAT PROVISION OF LAW HAS OPERATED IN SOME INSTANCES TO THE DETRIMENT OF EMPLOYEES STATIONED OUTSIDE THE UNITED STATES. WHEN SUBSTANTIAL COSTS ARE INVOLVED INCIDENT TO TRANSFERS FROM AN OVERSEAS STATION UNDER ONE DEPARTMENT TO A STATION UNDER ANOTHER DEPARTMENT, EITHER IN THE UNITED STATES OR IN ANOTHER OVERSEAS AREA, THE SECOND DEPARTMENT GENERALLY DOES NOT CONSIDER QUALIFIED EMPLOYEES OF THE FIRST DEPARTMENT BECAUSE OF THOSE COSTS. THE ASSISTANT SECRETARY SAYS THAT AT TIMES THE SECOND DEPARTMENT CAN AVOID AN UNUSUALLY LARGE EXPENDITURE OF FUNDS INCIDENT TO THE TRANSFER BY DELAYING ITS CONSIDERATION OF THE EMPLOYEE UNTIL HE IS RETURNED TO THE UNITED STATES FOR SEPARATION BY THE FIRST DEPARTMENT. BEFORE THE ACTUAL SEPARATION IS ACCOMPLISHED BY THE FIRST DEPARTMENT, THE SECOND DEPARTMENT CAN EMPLOY THE INDIVIDUAL AND TRANSFER HIM TO ITS STATION WITHOUT A BREAK IN SERVICE. THAT MANNER, THE SECOND DEPARTMENT IS OBLIGATED ONLY FOR THE SALARY AND TRANSPORTATION COSTS OF THE EMPLOYEE FROM HIS PLACE OF RESIDENCE IN THE UNITED STATES TO THE NEW STATION. IN THAT REGARD, BUT WITHOUT PASSING UPON THE PROPRIETY OF THE ABOVE PRACTICE--- THE STATEMENT BEING TOO GENERAL AND RESTRICTIVE IN NATURE TO INDICATE THE FACTUAL SITUATIONS INVOLVED--- THE FOLLOWING QUESTIONS ARE SUBMITTED FOR OUR DECISION:

"A. IN TRANSFERS FROM AN OVERSEAS POST OF DUTY UNDER ONE DEPARTMENT TO A POST OF DUTY UNDER ANOTHER DEPARTMENT, IS IT PROPER FOR THE RELEASING DEPARTMENT TO PAY TRANSPORTATION COSTS IN RETURNING THE EMPLOYEE TO HIS PLACE OF RESIDENCE AND THE ACQUIRING DEPARTMENT TO PAY TRANSPORTATION COSTS FROM THE PLACE OF RESIDENCE TO THE NEW POST OF DUTY?

"B. IN THE EVENT YOUR ANSWER TO A. ABOVE, IS IN THE NEGATIVE, MAY THE DEPARTMENT OF DEFENSE BY ADMINISTRATIVE REGULATION PROVIDE THAT IN CASE OF TRANSFER FROM AN OVERSEAS POST OF DUTY UNDER ONE MILITARY DEPARTMENT TO A POST OF DUTY UNDER ANOTHER MILITARY DEPARTMENT, THE RELEASING DEPARTMENT WILL PAY TRANSPORTATION COSTS EQUIVALENT TO THOSE REQUIRED TO RETURN THE EMPLOYEE TO HIS PLACE OF RESIDENCE AND THE ACQUIRING DEPARTMENT BEAR THE REMAINDER OF THE COSTS TO THE NEW POST OF DUTY?

SECTION 1 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 806, AUTHORIZES PAYMENT, WITHIN PRESCRIBED LIMITS, OF EXPENSES OF TRAVEL OF AN EMPLOYEE AND THE TRANSPORTATION OF HIS IMMEDIATE FAMILY AND HOUSEHOLD GOODS WHEN THE EMPLOYEE IS TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER AND IN THE LAST PROVISO THEREOF, IT IS STATED THAT IN CASES OF TRANSFER FROM ONE DEPARTMENT TO ANOTHER, THE EXPENSES OF TRAVEL "SHALL BE PAYABLE FROM THE FUNDS OF THE DEPARTMENT TO WHICH THE OFFICER OR EMPLOYEE IS TRANSFERRED.'

WE ARE NOT AWARE OF ANY AUTHORITY IN THE CASE OF A TRANSFER FROM AN OVERSEAS POST OF DUTY TO ANOTHER POST OF DUTY UNDER WHICH A PART OF THE EXPENSES OF TRANSFER MAY BE PAID BY THE RELEASING AGENCY. THEREFORE, QUESTIONS A. AND B. ARE ANSWERED IN THE NEGATIVE.