B-153965, JUN. 3, 1964

B-153965: Jun 3, 1964

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THE MATTER WAS REFERRED HERE AT THE REQUEST OF THE EMPLOYEE FOLLOWING DENIAL BY THE COMMANDING OFFICER. GARRETT WAS HONORABLY DISCHARGED FROM THE ARMY IN THE PHILIPPINE ISLANDS ON MAY 22. WAS EMPLOYED BY AN ARMY TRANSPORTATION DEPOT BEGINNING ON JULY 2. HE WAS SEPARATED FROM GOVERNMENT SERVICE ON ACCOUNT OF A REDUCTION IN FORCE AND REPATRIATED TO THE UNITED STATES WHERE HE REMAINED UNTIL FEBRUARY 1950. WHICH HE STATED ON A STANDARD FORM 57 WHICH HE EXECUTED IN 1956 WAS "AN EXTENDED VACATION WITH FAMILY IN U.S. " HE WAS UNEMPLOYED. HE WAS NOT IN GOVERNMENT SERVICE AT THAT TIME. HE WAS SEPARATED FROM THIS POSITION ON SEPTEMBER 23. "EMPLOYEE NOT ELIGIBLE FOR RETURN TRANSPORTATION AND WILL REMAIN IN MANILA.'.

B-153965, JUN. 3, 1964

TO THE SECRETARY OF THE NAVY:

THIS REFERS TO THE REQUEST OF APRIL 13, 1964, FILE NCA 121, OF THE ASSISTANT COMPTROLLER OF THE NAVY FOR A DECISION IN THE CASE OF MR. EDWARD F. GARRETT, AN EMPLOYEE OF THE NAVAL SUPPLY DEPOT, SUBIC BAY, PHILIPPINE ISLANDS. THE MATTER WAS REFERRED HERE AT THE REQUEST OF THE EMPLOYEE FOLLOWING DENIAL BY THE COMMANDING OFFICER, SUBIC BAY, OF HIS REQUEST FOR AN EMPLOYMENT AGREEMENT PROVIDING FOR ROUND-TRIP TRANSPORTATION EXPENSES TO THE UNITED STATES FOR LEAVE PURPOSES.

MR. GARRETT WAS HONORABLY DISCHARGED FROM THE ARMY IN THE PHILIPPINE ISLANDS ON MAY 22, 1947, AND WAS EMPLOYED BY AN ARMY TRANSPORTATION DEPOT BEGINNING ON JULY 2, 1947. ON JULY 26 OF THAT YEAR HE MARRIED A PHILIPPINE NATIONAL. ON SEPTEMBER 13, 1949, HE WAS SEPARATED FROM GOVERNMENT SERVICE ON ACCOUNT OF A REDUCTION IN FORCE AND REPATRIATED TO THE UNITED STATES WHERE HE REMAINED UNTIL FEBRUARY 1950. DURING THIS PERIOD, WHICH HE STATED ON A STANDARD FORM 57 WHICH HE EXECUTED IN 1956 WAS "AN EXTENDED VACATION WITH FAMILY IN U.S., " HE WAS UNEMPLOYED.

IN FEBRUARY 1950 MR. GARRETT RETURNED AT HIS OWN EXPENSE TO THE PHILIPPINES. HE WAS NOT IN GOVERNMENT SERVICE AT THAT TIME, HAD NO DEFINITE PROSPECTS OF A JOB IN THE PHILIPPINES AND DID NOT OBTAIN EMPLOYMENT THERE UNTIL MARCH 8, 1951, SOME 13 MONTHS LATER, AT WHICH TIME HE OBTAINED A POSITION AS A GUARD AT THE AMERICAN EMBASSY. HE WAS SEPARATED FROM THIS POSITION ON SEPTEMBER 23, 1951, ON ACCOUNT OF A REDUCTION IN FORCE. A FORM ISSUED INCIDENT TO SUCH SEPARATION CONTAINS THE STATEMENT,"EMPLOYEE NOT ELIGIBLE FOR RETURN TRANSPORTATION AND WILL REMAIN IN MANILA.'

FOLLOWING ANOTHER PERIOD OF UNEMPLOYMENT (SEPTEMBER 24, 1951, THROUGH JANUARY 28, 1952) MR. GARRETT ENTERED INTO AN EMPLOYMENT WITH A GOVERNMENT CONTRACTOR FOR SERVICE IN THE PHILIPPINES AND THE RYUKYU ISLANDS. THE AGREEMENT DESIGNATED MANILA AS THE POINT OF HIRE AND PROVIDED THAT UPON SATISFACTORY COMPLETION OF THE PERIOD, ETC., HE WOULD BE FURNISHED RETURN TRANSPORTATION TO THAT POINT. THE CONTRACT WAS COMPLETED ON MAY 18, 1953. HE OBTAINED NO FURTHER EMPLOYMENT UNTIL FEBRUARY 14, 1954, WHEN HE SIGNED AN AGREEMENT WITH THE UNITED STATES INFORMATION AGENCY FOR A SHORT TOUR OF DUTY IN OKINAWA. THIS CONTRACT WHICH ALSO PROVIDED FOR RETURN TRANSPORTATION ONLY TO MANILA WAS COMPLETED ON JUNE 14, 1954, AFTER WHICH HE AGAIN WAS UNEMPLOYED UNTIL HE OBTAINED A POSITION AT THE NAVAL SUPPLY BASE, SUBIC BAY, ON JULY 19, 1954. HE HAS CONTINUED IN THAT EMPLOYMENT TO THE PRESENT TIME.

ON MARCH 1, 1963, THE EMPLOYEE REQUESTED APPROVAL OF REEMPLOYMENT LEAVE TRAVEL EXPENSES TO VISIT HIS PARENTS IN LOS ANGELES, CALIFORNIA, AND THAT HE BE AUTHORIZED TO EXECUTE A "CONUS" EMPLOYMENT AGREEMENT WITH THE NAVY'S OVERSEAS EMPLOYMENT OFFICE IN SAN FRANCISCO PRIOR TO HIS RETURN TO DUTY. THE REQUEST WAS DENIED FOR THE REASON THAT THE EMPLOYEE'S "PLACE OF ACTUAL RESIDENCE AT THE TIME OF HIRE WAS IN THE PHILIPPINES.' THE RECORD SHOWS NO REQUEST FOR AN EMPLOYMENT AGREEMENT AT THE TIME OF HIRE IN 1954, NOR DOES IT SHOW A REQUEST FOR REEMPLOYMENT LEAVE TRAVEL EXPENSES BETWEEN 1954 AND 1963.

IN SUPPORT OF HIS REQUEST FOR REVIEW OF THE MATTER THE EMPLOYEE STATES (1) THAT HE RETURNED TO THE PHILIPPINES IN FEBRUARY 1950 FOR THE PURPOSE OF ACCEPTING EMPLOYMENT WITH THE UNITED STATES GOVERNMENT, (2) THAT PRIOR TO HIS APPOINTMENT WITH THE NAVY AT SUBIC BAY (1954) HE HELD TWO EMPLOYMENT CONTRACTS "AUTHORIZING TRANSPORTATION TO CONUS OR ELSEWHERE," (3) THAT HE HAS A PASSPORT AND OTHER DOCUMENTS RELATING TO ADMISSION TO THE PHILIPPINES, AND (4) THAT IN 1959 THE UNITED STATES INTERNAL REVENUE SERVICE FOUND HE WAS A DOMICILIARY OF CALIFORNIA FOR TAX PURPOSES IN 1954, 1955, AND 1956.

AS TO THE EMPLOYEE'S FIRST CONTENTION THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS (2ND INDORSEMENT, MARCH 18, 1964) POINTS OUT THAT WHEN MR. GARRETT RETURNED TO THE PHILIPPINES AT HIS OWN EXPENSE IN FEBRUARY 1950 HE WAS WITHOUT IMMEDIATE PROSPECTS OF EMPLOYMENT AND DID NOT OBTAIN A POSITION FOR SOME 13 MONTHS THEREAFTER. DURING THIS PERIOD AS WELL AS OTHER PERIODS OF UNEMPLOYMENT STATED HEREIN HE SUBSISTED ON SAVINGS ON THE LOCAL ECONOMY.

CONCERNING THE EMPLOYEE'S SECOND CONTENTION WE HAVE EXAMINED THE COPIES OF THE CONTRACTS ACCOMPANYING THE FILE AND FIND AS STATED EARLIER HEREIN THAT THEY CONTAIN NO PROVISION FOR RETURN TRANSPORTATION TO THE UNITED STATES.

IN REGARD TO THE REMAINING CONTENTIONS, THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS FURTHER POINTS OUT THAT THE PHILIPPINE ISLANDS IS A FOREIGN AREA AND ALL AMERICAN CITIZENS THERE MUST HAVE ADMISSION DOCUMENTS, ETC., AND THAT THE FINDING OF THE INTERNAL REVENUE SERVICE THAT FOR TAX PURPOSES THE EMPLOYEE WAS DOMICILED IN CALIFORNIA IS NOT DETERMINATIVE OF THE EMPLOYEE'S RIGHT TO TRANSPORTATION SINCE THERE ARE INVOLVED DIFFERENT LAWS AND REGULATIONS WITH DIFFERENT CONCEPTS AS TO "DOMICILE" FOR TAX PURPOSES AND "PLACE OF ACTUAL RESIDENCE" AS USED IN THE TRANSPORTATION LAW AND REGULATIONS.

THE PERTINENT STATUTORY AUTHORITY REGARDING RESIDENCE FOR PURPOSES OF ROUND-TRIP TRAVEL FOR LEAVE PURPOSES IS CONTAINED IN 5 U.S.C. 73B-3, WHICH PROVIDES:

"* * * 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 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 * *

THE PLACE WHICH CONSTITUTES THE ACTUAL RESIDENCE MUST BE DETERMINED UPON THE FACTS AND CIRCUMSTANCES OF EACH INDIVIDUAL CASE. THE RESPONSIBILITY FOR THAT DETERMINATION IS PRIMARILY AN ADMINISTRATIVE ONE, AND OUR OFFICE ORDINARILY WILL NOT QUESTION ANY REASONABLE DETERMINATION SO MADE.

THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS AND THE CHIEF OF INDUSTRIAL RELATIONS, HAVE CONCURRED WITH THE CONCLUSION OF THE COMMANDING OFFICER, SUBIC BAY, THAT THE EMPLOYEE'S ACTUAL RESIDENCE AT THE TIME OF HIS APPOINTMENT WITH THE DEPARTMENT OF THE NAVY WAS IN THE PHILIPPINE ISLANDS AND, THEREFORE, WAS NOT ENTITLED TO AN EMPLOYMENT AGREEMENT PROVIDING FOR THE BENEFITS SET FORTH IN THE QUOTED PORTION OF THE STATUTE. ON THE BASIS OF THE FACTS OF RECORD WE FIND NO CLEAR BASIS FOR DISAGREEMENT WITH THOSE CONCLUSIONS. THEREFORE, THE EMPLOYEE IS NOT ENTITLED TO ROUND-TRIP TRAVEL TO THE UNITED STATES FOR LEAVE PURPOSES. THE EMPLOYEE MAY BE SO ADVISED.

THE OFFICIAL PERSONNEL FOLDER IS RETURNED HEREWITH AS REQUESTED BY THE ASSISTANT COMPTROLLER.