B-151983, JUL. 30, 1963

B-151983: Jul 30, 1963

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WEST WAS INITIALLY EMPLOYED NOVEMBER 28. AT THAT TIME SHE WAS MARRIED TO HER PRESENT HUSBAND. WEST IN 1960 MADE APPLICATION FOR TRANSFER TO ELMENDORF AIR FORCE BASE IN ALASKA AND THE REASON GIVEN FOR THE REQUEST WAS THAT HER MOTHER LIVED IN ANCHORAGE. WAS REINSTATED AT ELMENDORF AIR FORCE BASE APRIL 11. WAS CONSIDERED A LOCAL HIRE. SHE EXECUTED AN AFFIDAVIT STATING HER PERMANENT RESIDENCE WAS KORMAN. WAS ALLOWED TO SIGN A TRANSPORTATION AGREEMENT. WEST WAS FIRST EMPLOYED IN ALASKA IN PRIVATE INDUSTRY AND ON MAY 3. IS STILL EMPLOYED THERE. HE WAS NOT PERMITTED TO SIGN A TRANSPORTATION AGREEMENT BY FORT RICHARDSON BECAUSE THEY DID NOT FEEL HIS PURPOSE IN BEING IN ALASKA COULD BE SPECIFICALLY ATTRIBUTED TO EMPLOYMENT WITH THE UNITED STATES ARMY.

B-151983, JUL. 30, 1963

TO THE SECRETARY OF THE AIR FORCE:

THERE HAS BEEN BROUGHT TO OUR ATTENTION THE MATTER OF THE TRANSPORTATION AT GOVERNMENT EXPENSE OF THE CHILD OF MRS. C. B. WEST, JR., A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE.

THE INFORMATION FURNISHED BY THE DEPARTMENT OF THE AIR FORCE SHOWS THAT MRS. WEST WAS INITIALLY EMPLOYED NOVEMBER 28, 1958, AT TINKER AIR FORCE BASE, OKLAHOMA. AT THAT TIME SHE WAS MARRIED TO HER PRESENT HUSBAND, C. B. WEST, JR. MRS. WEST IN 1960 MADE APPLICATION FOR TRANSFER TO ELMENDORF AIR FORCE BASE IN ALASKA AND THE REASON GIVEN FOR THE REQUEST WAS THAT HER MOTHER LIVED IN ANCHORAGE, ALASKA. MRS. WEST RESIGNED HER POSITION AT TINKER AIR FORCE BASE MARCH 3, 1961, PROCEEDED TO ALASKA AT HER OWN EXPENSE, WAS REINSTATED AT ELMENDORF AIR FORCE BASE APRIL 11, 1961, AND WAS CONSIDERED A LOCAL HIRE. HOWEVER, SHE EXECUTED AN AFFIDAVIT STATING HER PERMANENT RESIDENCE WAS KORMAN, OKLAHOMA, AND WAS ALLOWED TO SIGN A TRANSPORTATION AGREEMENT. MR. WEST WAS FIRST EMPLOYED IN ALASKA IN PRIVATE INDUSTRY AND ON MAY 3, 1961, HE RECEIVED AN APPOINTMENT AT FORT RICHARDSON, ALASKA, AND IS STILL EMPLOYED THERE. HE WAS NOT PERMITTED TO SIGN A TRANSPORTATION AGREEMENT BY FORT RICHARDSON BECAUSE THEY DID NOT FEEL HIS PURPOSE IN BEING IN ALASKA COULD BE SPECIFICALLY ATTRIBUTED TO EMPLOYMENT WITH THE UNITED STATES ARMY. THE WESTS' HAVE ONE CHILD BORN FEBRUARY 22, 1963. MRS. WEST APPARENTLY HAS REQUESTED AUTHORIZATION FOR THE CHILD TO TRAVEL TO OKLAHOMA WITH HER FOR REEMPLOYMENT LEAVE, OR FOR THE PURPOSE OF SEPARATION FROM THE GOVERNMENT SERVICE.

THE DEPARTMENT OF THE AIR FORCE HAS INDICATED THAT MRS. WEST IS ELIGIBLE FOR TRANSPORTATION AT GOVERNMENT EXPENSE BUT NOT THE CHILD. THE DEPARTMENT SAYS THAT THE FACT THAT THE HUSBAND, WIFE AND OTHER MEMBERS OF A HOUSEHOLD ARE EMPLOYEES DOES NOT MAKE EACH ELIGIBLE TO CLAIM FAMILY TRANSPORTATION. A HOUSEHOLD IS CONSIDERED AS A UNIT FOR TRANSPORTATION ELIGIBILITY PURPOSES AND EITHER THE HUSBAND OR WIFE MAY QUALIFY AS THE HEAD UPON WHOM MEMBERS OF THE FAMILY ARE IN FACT DEPENDENT. THE DEPARTMENT ALSO POINTS OUT THAT THIS DETERMINATION OF DEPENDENCY FOR MEMBERS OF THE FAMILY AND HOUSEHOLD WEIGHT LIMITATION ELIGIBILITY DOES NOT DISCRIMINATE AGAINST FEMALE EMPLOYEES SINCE THE ELIGIBILITY CONDITIONS APPLY TO BOTH THE HUSBAND AND THE WIFE. THESE VIEWS APPEAR TO BE CONSISTENT WITH THE REGULATIONS APPEARING IN AFM 40 10.

IN VIEW OF THE REASON BY THE DEPARTMENT OF THE AIR FORCE FOR DISALLOWING MRS. WEST'S REQUEST FOR TRANSPORTATION OF HER CHILD AT GOVERNMENT EXPENSE IN TRAVELING FOR REEMPLOYMENT LEAVE THE QUESTION TO BE RESOLVED IS WHETHER A FEMALE EMPLOYEE WHOSE SPOUSE IS ALSO A CIVILIAN EMPLOYEE MUST SHOW THAT THE CHILD IS DEPENDENT UPON HER IN ORDER THAT SHE MAY BE ALLOWED EXPENSE OF THE CHILD'S TRAVEL.

ROUND-TRIP TRAVEL OF EMPLOYEES TO THEIR PLACES OF ACTUAL RESIDENCE FOR THE PURPOSE OF TAKING LEAVE, IS GOVERNED BY SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, PUB.L. 600, AS AMENDED BY THE ACT OF AUGUST 31, 1954, 68 STAT. 1008. THAT ACT READS IN 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 OR TRANSFER 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 AT THE SAME OR SOME OTHER OVERSEAS POST, UNDER A NEW WRITTEN AGREEMENT ENTERED INTO BEFORE DEPARTING FROM THE OVERSEAS POST. * * *"

WE HAVE FOUND NOTHING IN THE LANGUAGE OR LEGISLATIVE HISTORY OF SECTION 7 OF PUB.L. 600 COVERING ROUND-TRIP TRAVEL FOR LEAVE PURPOSES, ABOVE, OR THE PROVISION THEREOF COVERING TRAVEL FOR SEPARATION, WHICH IS INDICATIVE OF THE INTENT OF THE CONGRESS REGARDING THE REQUIREMENT OF DEPENDENCY ON THE PART OF THE CHILD OF A FEMALE EMPLOYEE AS A CONDITION PRECEDENT TO THE CHILD'S TRANSPORTATION AT GOVERNMENT EXPENSE.

BUREAU OF THE BUDGET CIRCULAR NO. A-56, EFFECTIVE JUNE 1, 1962, IMPLEMENTING PUB.L. 600, GOVERNING PAYMENT OF TRAVEL AND TRANSPORTATION OF CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES IN SECTION 1.2D DEFINES "IMMEDIATE FAMILY" AS INCLUDING UNMARRIED CHILDREN OF THE EMPLOYEE. THE TERM "DEPENDENT" EXPRESSLY IS USED ONLY WITH REGARD TO THE PARENTS OF THE EMPLOYEE, AND IS INCLUDED BY IMPLICATION ONLY REGARDING CHILDREN TWENTY-ONE YEARS OR OLDER. TO REQUIRE A CHILD TO BE A DEPENDENT OF ITS EMPLOYEE MOTHER AS A CONDITION TO THE GOVERNMENT BEARING ITS TRANSPORTATION EXPENSE UPON HER TRAVEL FOR HOME LEAVE, OR SEPARATION, WOULD NECESSITATE READING INTO THE OTHERWISE CLEAR AND UNAMBIGUOUS TERMINOLOGY OF THE STATUTE AND BUREAU OF BUDGET CIRCULAR, LANGUAGE WHICH SIMPLY IS NOT THERE. SEE B-151203, DATED MAY 10, 1963, B-145873, DATED JUNE 20, 1961, 40 COMP. GEN. 704, AND SECTION 4.3 OF BUREAU OF BUDGET CIRCULAR A-56. TO THE EXTENT THAT AFM 40-10 IS TO THE CONTRARY, IT IS INCONSISTENT WITH THE EXISTING STATUTE AND BUREAU OF THE BUDGET REGULATIONS.

THEREFORE, IF MRS. WEST AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE IS OTHERWISE ELIGIBLE EITHER FOR HOME LEAVE BETWEEN ASSIGNMENTS, OR FOR SEPARATION, WE FIND NOTHING IN THE APPLICABLE LAW AND REGULATIONS WHICH WOULD PROHIBIT THE TRAVEL AT GOVERNMENT EXPENSE OF HER CHILD.