B-157548, SEP. 13, 1965, 45 COMP. GEN. 136

B-157548: Sep 13, 1965

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WAS TRANSFERRED AT HIS REQUEST TO HONOLULU. MAY NOT HAVE EL PASO CONSIDERED HIS "ACTUAL RESIDENCE" UNDER SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 (5 U.S.C. 73B-3) TO ENTITLE HIM TO THE EXPENSES OF ROUND TRIP TRAVEL FOR LEAVE PURPOSES PRIOR TO SERVING ANOTHER TOUR OF DUTY UNDER A NEW AGREEMENT. EVIDENCES HONOLULU AND NOT EL PASO IS HIS "ACTUAL RESIDENCE" FOR THE PURPOSE OF 5 U.S.C. 73B-3 AND. THE QUESTION PRESENTED IS WHETHER EL PASO. IS TO BE CONSIDERED HIS "ACTUAL RESIDENCE" FOR TRAVEL AT GOVERNMENT EXPENSE FOR LEAVE PURPOSES UNDER THE PROVISION OF SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946. 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-157548, SEP. 13, 1965, 45 COMP. GEN. 136

TRAVEL EXPENSES - OVERSEAS EMPLOYEES - HOME LEAVE - RESIDENCE DETERMINATION A HAWAII RESIDENT APPOINTED FOR DUTY IN THE UNITED STATES WHO REPORTED AT HIS OWN EXPENSE TO NEW YORK CITY FOR INDOCTRINATION AND TRAINING, AND WHO FOLLOWING A TOUR OF DUTY IN EL PASO, TEXAS, WAS TRANSFERRED AT HIS REQUEST TO HONOLULU, HAWAII, MAY NOT HAVE EL PASO CONSIDERED HIS "ACTUAL RESIDENCE" UNDER SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 (5 U.S.C. 73B-3) TO ENTITLE HIM TO THE EXPENSES OF ROUND TRIP TRAVEL FOR LEAVE PURPOSES PRIOR TO SERVING ANOTHER TOUR OF DUTY UNDER A NEW AGREEMENT, THE EMPLOYEE HAVING BEEN BORN, RAISED, EDUCATED AND MARRIED IN HONOLULU, LEAVING ONLY TO ACCEPT GOVERNMENT EMPLOYMENT AND RETURNING AS SOON AS PERMITTED UNDER AGENCY POLICY, EVIDENCES HONOLULU AND NOT EL PASO IS HIS "ACTUAL RESIDENCE" FOR THE PURPOSE OF 5 U.S.C. 73B-3 AND, THEREFORE, THE EMPLOYEE MAY NOT BE ALLOWED TRAVEL TO EL PASO AT GOVERNMENT EXPENSE FOR LEAVE PURPOSES INCIDENT TO HIS HAWAII ASSIGNMENT.

TO THE SECRETARY OF AGRICULTURE, SEPTEMBER 13, 1965:

WE REFER TO THE LETTER OF THE DEPUTY DIRECTOR OF SCIENCE AND EDUCATION, DEPARTMENT OF AGRICULTURE, DATED AUGUST 24, 1965, CONCERNING THE ENTITLEMENT OF MR. RAY I. MIYAMOTO, A PLANT QUARANTINE INSPECTOR OF THE AGRICULTURAL RESEARCH SERVICE STATIONED AT HONOLULU, HAWAII, TO THE EXPENSES OF ROUND-TRIP TRAVEL TO EL PASO, TEXAS, FOR THE PURPOSE OF TAKING LEAVE PRIOR TO SERVING ANOTHER TOUR OF DUTY IN HONOLULU.

THE QUESTION PRESENTED IS WHETHER EL PASO, MR. MIYAMOTO'S POST OF DUTY PRIOR TO HIS TRANSFER TO HONOLULU, IS TO BE CONSIDERED HIS "ACTUAL RESIDENCE" FOR TRAVEL AT GOVERNMENT EXPENSE FOR LEAVE PURPOSES UNDER THE PROVISION OF SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, 5 U.S.C. 73B-3, WHICH PROVIDES IN PERTINENT PART:

* * * 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 LETTER OF THE DEPUTY DIRECTOR, SCIENCE AND EDUCATION, CONTAINS THE FOLLOWING STATEMENT OF THE FACTS INVOLVED:

THIS EMPLOYEE WAS A RESIDENT OF HAWAII AT THE TIME OF HIS INITIAL APPOINTMENT WITH THE SERVICE. HE WAS ORIGINALLY APPOINTED FOR DUTY AT NEW YORK, NEW YORK, AT WHICH POINT HE REPORTED FOR DUTY AT HIS OWN EXPENSE ON MAY 20, 1957. ON COMPLETION OF A SIX-MONTH INDOCTRINATION AND TRAINING COURSE HE WAS TRANSFERRED TO EL PASO, TEXAS, WHICH REMAINED HIS OFFICIAL STATION UNTIL HIS TRANSFER TO HONOLULU, HAWAII, ON JULY 24, 1960. THE TRANSFER TO HONOLULU WAS IN ACCORDANCE WITH THE EMPLOYEE'S REQUEST OF DECEMBER 17, 1959, FOR A TRANSFER TO HONOLULU AT THE EARLIEST POSSIBLE CONVENIENCE OF THE GOVERNMENT * * *.

THAT LETTER ALSO INDICATED THAT MR. MIYAMOTO WAS BORN, RAISED, EDUCATED AND MARRIED IN HONOLULU.

MR. MIYAMOTO GIVES THE FOLLOWING REASONS IN SUPPORT OF HIS BELIEF THAT EL PASO WAS HIS "ACTUAL RESIDENCE" AT THE TIME OF TRANSFER:

1. I WAS REQUESTED TO AND DID SIGN THE PROPER FORM STATING THAT EL PASO WAS MY HOME BEFORE I TRANSFERRED--- THIS WAS DONE IN THE PRESENCE OF MR. T. A. ARNOLD, INSPECTOR IN CHARGE, EL PASO, TEXAS, AND MRS. KROTONA BRAY, SECRETARY

2. I WAS REQUESTED TO AND IN FACT DID SIGN AN AGREEMENT TO COMPLETE A SPECIFIED NUMBER OF YEARS OF DUTY AT THE PORT OF HONOLULU

3. I PAID MY OWN EXPENSES TO NEW YORK AND SUBSEQUENTLY TRANSFERRED TO EL PASO ON GOVERNMENT FUNDS WITH ABSOLUTELY NO ASSURANCE OF EVER RETURNING TO HAWAII

4. I NEVER VOTED AN ABSENTEE BALLOT TO HAWAII WHILE IN NEW YORK OR TEXAS

5. I NEVER PAID NOR WAS CHARGED FOR ANY STATE (OR TERRITORY) OF HAWAII INCOME TAX WHILE IN EL PASO

6. I NEVER MAINTAINED ANY ESTATE IN HAWAII AFTER I LEFT IN 1957

7. I LIVED LIKE ANY OTHER TEXAN, PAID WHATEVER TAXES CHARGED, RENTED AND LIVED IN A HOME IN TEXAS, AND PURCHASED COMMODITIES FROM THE NEIGHBORHOOD

8. I DROVE AN AUTOMOBILE FINANCED BY AN EL PASO CREDIT UNION AND FURNISHED WITH TEXAS PLATES (CJ-4087, BX-4652, CD-6057, BY-5426)

9. ALL MY MAIL WAS DELIVERED TO 542 BATAAN CIRCLE, EL PASO, TEXAS OR 241 U.S. COURT HOUSE, EL PASO, TEXAS

10. MY WIFE BORE OUR DAUGHTER, MARIE, IN TEXAS

11. I RECEIVED NO PER DIEM WHILE IN EL PASO

12. AD-202, AUTHORIZATION TRAVEL, NO. 82-32, DATED JUNE 2, 1960 SHOWSEL PASO, TEXAS AS AN OFFICIAL DUTY STATION

13. MEMORANDUM DATED JUNE 29, 1960, TO T. A. ARNOLD FROM REGIONAL ADMINISTRATIVE SERVICES OFFICER, WR, SUBJECT--- TRANSPORTATION OF HOUSEHOLD EFFECTS--- R. I. MIYAMOTO, SHOWS GBL-A-0391138 FOR USE IN SHIPPING MY HOUSEHOLD GOODS FROM EL PASO TO HONOLULU

14.SF-50, NOTIFICATION OF PERSONNEL ACTION, TRANSFER FROM SOUTHWEST REGION TO PACIFIC REGION, DATED 7-21-60 SIGNED BY SARAH S. MONTAGUE

15. WHEN I RETURNED TO HAWAII I COULDN-T PARTICIPATE IN VOTING BECAUSE I HADN-T ESTABLISHED RESIDENCE IN HAWAII. FURTHERMORE THEY ADVISED ME TO VOTE ABSENTEE IN TEXAS**

WE HAVE CONSISTENTLY HELD THAT UNDER SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 AN EMPLOYEE'S "ACTUAL RESIDENCE" AT THE TIME HE IS TRANSFERRED TO AN OVERSEAS POST IS NOT NECESSARILY THE PLACE AT WHICH HE RESIDES JUST PRIOR TO SUCH TRANSFER. MORE SPECIFICALLY, WE HAVE HELD UNDER THAT SECTION THAT AN EMPLOYEE RESIDING AT A PARTICULAR LOCATION INCIDENT TO A GOVERNMENT ASSIGNMENT MAY AFTER TRANSFER FROM THAT PLACE TO AN OVERSEAS POST SHOW, BY APPROPRIATE EVIDENCE, THAT THE PLACE FROM WHICH HE TRANSFERRED WAS NOT HIS "ACTUAL RESIDENCE" FOR PURPOSES OF RETURN TRAVEL AT GOVERNMENT EXPENSE INCIDENT TO LEAVE. 35 COMP. GEN. 101; ID. 244. WE HAVE NOT PREVIOUSLY CONSIDERED A CASE SUCH AS THE ONE PRESENTED IN WHICH THE EMPLOYEE TAKES THE POSITION THAT THE PLACE FROM WHICH HE TRANSFERRED WAS HIS "ACTUAL RESIDENCE" AND THE AGENCY PRESENTS EVIDENCE TO SHOW THAT THE EMPLOYEE'S LAST DUTY POST WAS NOT HIS "ACTUAL RESIDENCE.' THE REVERSED POSITION OF THE PARTIES, HOWEVER, DOES NOT CHANGE THE RULE THAT THE EMPLOYEE'S "ACTUAL RESIDENCE" MAY BE AT A LOCATION OTHER THAN THE ONE AT WHICH HE RESIDED IMMEDIATELY BEFORE HIS TRANSFER. THE PLACE OF "ACTUAL RESIDENCE" MUST BE DETERMINED BY THE AGENCY ON THE BASIS OF ALL THE AVAILABLE FACTS.

THE EVIDENCE PRESENTED BY THE DEPARTMENT SHOWS THAT MR. MIYAMOTO WAS ABSENT FROM HAWAII ONLY AS A RESULT OF HIS GOVERNMENT EMPLOYMENT AND THAT HE REQUESTED TO BE RETURNED TO HAWAII AS SOON AS ALLOWABLE UNDER THE POLICIES OF THE AGRICULTURAL RESEARCH SERVICE. THE REASONS MR. MIYAMOTO HAS PRESENTED TO SHOW THAT HIS "ACTUAL RESIDENCE" WAS EL PASO ARE COMPATIBLE WITH HIS TEMPORARY RESIDENCE AT THAT PLACE INCIDENT TO THE PERFORMANCE OF HIS DUTIES AS A GOVERNMENT EMPLOYEE. FURTHERMORE, THE SERVICE AGREEMENT HE SIGNED PRIOR TO TRANSFER WAS REQUIRED BY SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, TO PERMIT THE TRANSPORTATION OF HIS HOUSEHOLD EFFECTS AND DEPENDENTS TO HAWAII AT GOVERNMENT EXPENSE.

ON THE BASIS OF THE EVIDENCE PRESENTED OUR OPINION IS THAT YOUR DEPARTMENT'S DETERMINATION THAT MR. MIYAMOTO'S "ACTUAL RESIDENCE" FOR THE PURPOSE OF SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 WAS HONOLULU NOT EL PASO WAS CORRECT. THEREFORE, HE SHOULD NOT BE ALLOWED TRAVEL TO EL PASO AT GOVERNMENT EXPENSE FOR LEAVE PURPOSES INCIDENT TO HIS ASSIGNMENT TO HAWAII.