B-146493, AUGUST 25, 1961, 41 COMP. GEN. 146

B-146493: Aug 25, 1961

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TERRITORY OR POSSESSION IN WHICH THE EMPLOYEE'S RESIDENCE IS LOCATED WHEN THE EMPLOYEE ELECTS TO TRAVEL TO A PLACE OTHER THAN HIS RESIDENCE. OR POSSESSION IN WHICH THEIR RESIDENCE IS LOCATED WOULD BE IN ACCORD WITH THE PURPOSE OF THE HOME LEAVE PROVISIONS IN SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946. WHICH IS TO RETURN OVERSEAS EMPLOYEES TO THEIR HOMELAND FOR THE PURPOSE OF TAKING LEAVE AT SUCH LOCATION. HE THUS WAS ENTITLED TO REEMPLOYMENT LEAVE TRAVEL IN ACCORDANCE WITH THE PROVISIONS OF 5 U.S.C. 73B-3. 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 AT THE SAME OR SOME OTHER OVERSEAS POST.

B-146493, AUGUST 25, 1961, 41 COMP. GEN. 146

TRAVEL EXPENSES - OVERSEAS EMPLOYEES - HOME LEAVE - TO OTHER THAN RESIDENCE - TIME AT OR NEAR RESIDENCE THE MERE STOPPING OFF OF AN OVERSEAS EMPLOYEE AT OR NEAR HIS PLACE OF RESIDENCE IN THE UNITED STATES INCIDENT TO A GLOBAL TOUR TAKEN DURING A PERIOD OF HOME LEAVE MAY NOT BE REGARDED AS A RETURN TO THE "PLACE OF ACTUAL RESIDENCE FOR THE PURPOSE OF TAKING LEAVE" PRIOR TO SERVING ANOTHER TOUR OF DUTY OVERSEAS TO BE ALLOWABLE TRAVEL WITHIN THE MEANING OF SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 5 U.S.C. 73B-3, AND SECTION 27 (B) OF EXECUTIVE ORDER NO. 9805 WHICH RESTRICTS HOME LEAVE TRAVEL TO THE COUNTRY, TERRITORY OR POSSESSION IN WHICH THE EMPLOYEE'S RESIDENCE IS LOCATED WHEN THE EMPLOYEE ELECTS TO TRAVEL TO A PLACE OTHER THAN HIS RESIDENCE, AND, THEREFORE, NONE OF THE TRAVEL EXPENSES INCURRED IN CONNECTION WITH THE TRIP MAY BE PAID BY THE GOVERNMENT. AN ADMINISTRATIVE REGULATION REQUIRING OVERSEAS EMPLOYEES TO SPEND A MINIMUM AMOUNT OF THEIR HOME LEAVE AT THEIR ACTUAL PLACE OF RESIDENCE OR AT A PREVIOUSLY INDICATED PLACE WITHIN THE COUNTRY, TERRITORY, OR POSSESSION IN WHICH THEIR RESIDENCE IS LOCATED WOULD BE IN ACCORD WITH THE PURPOSE OF THE HOME LEAVE PROVISIONS IN SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 5 U.S.C. 73B-3, WHICH IS TO RETURN OVERSEAS EMPLOYEES TO THEIR HOMELAND FOR THE PURPOSE OF TAKING LEAVE AT SUCH LOCATION.

TO THE SECRETARY OF THE ARMY, AUGUST 25, 1961:

ON JULY 19, 1961, THE UNDER SECRETARY OF THE ARMY REQUESTED OUR DECISION CONCERNING THE AUTHORIZATION OF REEMPLOYMENT LEAVE TRAVEL AND TRANSPORTATION EXPENSES TO LOCATIONS OTHER THAN THE PLACE OF ACTUAL RESIDENCE PROVIDED THE COST DOES NOT EXCEED THE COST OF ROUND-TRIP TRAVEL TO THE PLACE OF ACTUAL RESIDENCE.

THE UNDER SECRETARY PRESENTS THE CASE OF AN EMPLOYEE WHO, UPON COMPLETION OF A PRESCRIBED TOUR OF DUTY IN HAWAII, EXECUTED AN AGREEMENT FOR ANOTHER TOUR OF DUTY AT THE SAME OVERSEAS POST. HE THUS WAS ENTITLED TO REEMPLOYMENT LEAVE TRAVEL IN ACCORDANCE WITH THE PROVISIONS OF 5 U.S.C. 73B-3, READING IN PERTINENT PART AS FOLLOWS:

* * * THAT EXPENSES OF ROUND TRIP TRAVEL OF EMPLOYEE AND TRANSPORTATION OF IMMEDIATE FAMILY BUT EXCLUDING HOUSEHOLD EFFECTS, FROM THEIR POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO THE PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT OR TRANSFER TO SUCH OVERSEAS POST 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 AT THE SAME OR SOME OTHER OVERSEAS POST, UNDER A NEW WRITTEN AGREEMENT ENTERED INTO BEFORE DEPARTING FROM THE OVERSEAS POST.

PURSUANT TO TRAVEL ORDERS DATED MARCH 24, 1960, AUTHORIZING THE TRAVEL FROM HONOLULU, HAWAII, TO THE CONTINENTAL UNITED STATES BY INDIRECT ROUTE, BUT WITH COSTS LIMITED TO CERTAIN DIRECT TRAVEL COSTS, THE EMPLOYEE DEPARTED HONOLULU ON APRIL 10, 1960, AND ARRIVED IN NEW YORK CITY FROM LONDON, ENGLAND, ON JUNE 21, 1960. HE LEFT NEW YORK ON THE SAME DAY FOR PHILADELPHIA, PENNSYLVANIA, AND DEPARTED PHILADELPHIA AT 8 A.M. ON JUNE 23, 1960, BY COMMERCIAL AIR TRANSPORTATION FOR SAN FRANCISCO, CALIFORNIA. HE DEPARTED FROM SAN FRANCISCO ON JUNE 24, 1960, VIA COMMERCIAL AIR AND ARRIVED IN HONOLULU THE SAME DAY. HIS PLACE OF RESIDENCE AT TIME OF HIRE IS SHOWN AS WASHINGTON, D.C.

YOU ASK THREE SPECIFIC QUESTIONS AS FOLLOWS:

1. DOES THE TRAVEL PERFORMED CONSTITUTE A "TRAVEL TOUR" WITHIN THE MEANING OF YOUR DECISION OF 15 AUGUST 1957 (37 CG 113/?

2. WHERE IT IS EVIDENT THAT THE PRIMARY PURPOSE OF THE TRAVEL IS OTHER THAN FOR A PERIOD OF LEAVE AT PLACE OF ACTUAL RESIDENCE OR DESIGNATED ALTERNATIVE LOCATION, IS REIMBURSEMENT FOR TRAVEL AUTHORIZED? IN THIS CONNECTION, SINCE ONE OF THE PURPOSES OF REEMPLOYMENT LEAVE TRAVEL BETWEEN OVERSEA TOURS IS TO REORIENT THE EMPLOYEE IN THE IDEALS AND CUSTOMS OF THE UNITED STATES, IT APPEARS DESIRABLE TO ADMINISTRATIVELY ESTABLISH A MINIMUM PERIOD OF LEAVE TO BE TAKEN IN THE UNITED STATES. DECISION IS ALSO REQUESTED, THEREFORE, AS TO WHETHER THERE IS ANY LEGAL PROHIBITION TO THE ESTABLISHMENT OF SUCH A REQUIREMENT BY REGULATION.

3. IF IT IS DETERMINED THAT THE TRAVEL PERFORMED UNDER THE CITED CIRCUMSTANCES CONSTITUTED REEMPLOYMENT LEAVE TRAVEL, SHOULD REIMBURSEMENT BE EFFECTED FOR THE COST OF GOVERNMENT TRANSPORTATION AVAILABLE BUT NOT UTILIZED FROM HAWAII TO SAN FRANCISCO AND RETURN IN VIEW OF THE LIMITATION CONTAINED IN THE TRAVEL ORDERS?

THE PROVISIONS OF 5 U.S.C. 73B-3, QUOTED IN PART ABOVE, WHICH IS THE SOLE STATUTORY AUTHORITY FOR ALLOWANCE OF THE COSTS OF TRAVEL OF THE TYPE HERE INVOLVED, DO NOT SPECIFICALLY AUTHORIZE PAYMENT OF AN EMPLOYEE'S REEMPLOYMENT LEAVE TRAVEL EXPENSES EXCEPT TO HIS PLACE OF ACTUAL RESIDENCE. THE STATUTE IS IMPLEMENTED BY REGULATIONS CONTAINED IN SECTION 27 (B) OF EXECUTIVE ORDER NO. 9805, AS ADDED BY BUREAU OF THE BUDGET CIRCULAR A-4, MAY 2, 1955, WHICH PERMITS PAYMENT OF REEMPLOYMENT LEAVE TRAVEL AND TRANSPORTATION EXPENSES TO LOCATIONS OTHER THAN THE PLACE OF ACTUAL RESIDENCE BUT RESTRICTS SUCH OTHER LOCATIONS TO THE COUNTRY, TERRITORY, OR POSSESSION IN WHICH THE EMPLOYEE'S PLACE OF ACTUAL RESIDENCE IS LOCATED. SEE 38 COMP. GEN. 631, AND B-133696, SEPTEMBER 23, 1957.

WHILE THE ABOVE-CITED DECISIONS PRECLUDE ONLY THE ALLOWANCE OF TRAVEL AND TRANSPORTATION EXPENSES TO EMPLOYEES WHO SPEND THEIR ENTIRE PERIOD OF REEMPLOYMENT LEAVE AT PLACES OUTSIDE THE COUNTRY, TERRITORY, OR POSSESSION IN WHICH THEIR RESIDENCES ARE LOCATED, THE PRINCIPLE THAT ALLOWABLE TRAVEL, UNDER THE STATUTE, IS FOR PURPOSES OF RETURNING OVERSEAS EMPLOYEES TO THEIR HOMELAND FOR THE TAKING OF LEAVE THEREAT, REASONABLY COULD NOT BE EXTENDED TO THE MERE STOPPING OFF OF AN EMPLOYEE AT OR NEAR HIS PLACE OF RESIDENCE AS AN INCIDENCE OF A GLOBAL TOUR.

IN VIEW OF THAT RESTRICTION IN THE STATUTORY REGULATION, CITED ABOVE, AND THE OBVIOUS INTENT OF 5 U.S.C. 73B-3, NONE OF THE TRAVEL EXPENSES INCURRED IN CONNECTION WITH THE TRIP IN QUESTION MAY BE PAID BY THE GOVERNMENT. QUESTION 1 AND THE FIRST PART OF QUESTION 2 ARE ANSWERED ACCORDINGLY.

REGARDING THE SECOND PART OF QUESTION 2, WE ARE NOT AWARE OF ANY LEGAL PROHIBITION AGAINST THE ISSUING OF AN ADMINISTRATIVE REGULATION REQUIRING OVERSEAS EMPLOYEES TO SPEND A MINIMUM AMOUNT OF THEIR REEMPLOYMENT LEAVE AT THEIR ACTUAL PLACE OF RESIDENCE OR AT A PREVIOUSLY INDICATED PLACE WITHIN THE COUNTRY, TERRITORY, OR POSSESSION OF THEIR RESIDENCE.

IN VIEW OF THE ABOVE COMMENTS, NO ANSWER IS NECESSARY TO THE THIRD QUESTION PRESENTED.