B-159435, JUL. 6, 1966

B-159435: Jul 6, 1966

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WAS HIS PLACE OF ACTUAL RESIDENCE FOR HOME LEAVE PURPOSES. ALASKA WAS HIS LEGAL OR VOTING RESIDENCE. 2. HE WAS EMPLOYED BY THE ALASKA TRADES SUPPLY. ON THE BASIS OF THE FACTS PRESENTED IT WAS ADMINISTRATIVELY DETERMINED THAT MR. THOMAS' PLACE OF ACTUAL RESIDENCE AT THE TIME OF EMPLOYMENT WAS ANCHORAGE. THE AUTHORITY FOR THE PAYMENT OF THE ROUND-TRIP TRAVEL OF EMPLOYEES AND THEIR IMMEDIATE FAMILIES FROM POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO THE PLACES OF ACTUAL RESIDENCE IN THE UNITED STATES IS CONTAINED IN PUB.L. 737. SHALL BE ALLOWED IN THE CASE OF PERSONS WHO * * * ARE RETURNING TO THEIR ACTUAL PLACE OF RESIDENCE FOR THE PURPOSE OF TAKING LEAVE * * *.'. UNDER THE ABOVE-QUOTED STATUTORY LANGUAGE THE LOCATION OF THE EMPLOYEE'S PLACE OF ACTUAL RESIDENCE FOR BOTH SEPARATION AND HOME LEAVE TRAVEL PURPOSES IS ESTABLISHED AT THE "TIME" OF THE EMPLOYEE'S APPOINTMENT OR TRANSFER TO THE OVERSEAS POST OF DUTY AND IS NOT AFFECTED BY CHANGES IN THE EMPLOYEE'S INTENTIONS SUBSEQUENT TO THE "TIME" OF SUCH APPOINTMENT OR TRANSFER.

B-159435, JUL. 6, 1966

TO AUTHORIZED CERTIFYING OFFICER, FEDERAL AVIATION AGENCY:

THIS REFERS TO YOUR LETTER OF JUNE 1, 1966, WITH ENCLOSURES, REFERENCE AL -26, FORWARDED HERE BY LETTER OF JUNE 14, 1966, REFERENCE MS-430, FROM THE ACTING CHIEF, ACCOUNTING PROGRAMS DIVISION, REQUESTING AN ADVANCE DECISION AS TO WHETHER THE ENCLOSED VOUCHER MAY BE CERTIFIED FOR PAYMENT.

THE VOUCHER IN THE AMOUNT OF $750.63 REPRESENTS TRAVEL EXPENSES OF MR. DELBERT B. THOMAS AND HIS DEPENDENTS IN RETURNING TO NORWALK, CALIFORNIA, FOR HOME LEAVE COMMENCING DECEMBER 18, 1965. PRIOR TO THE TRAVEL INVOLVED THE EMPLOYEE EXECUTED AN EMPLOYMENT AGREEMENT SHOWING THAT NORWALK, CALIFORNIA, WAS HIS PLACE OF ACTUAL RESIDENCE FOR HOME LEAVE PURPOSES. THE INFORMATION FURNISHED REVEALS THAT AT THE TIME OF MR. THOMAS' EMPLOYMENT WITH THE FEDERAL AVIATION AGENCY HIS EMPLOYMENT PAPERS SHOWED THAT:

1. ALASKA WAS HIS LEGAL OR VOTING RESIDENCE.

2. HE LEFT THE PACIFIC PLUMBING COMPANY, LOS ANGELES, CALIFORNIA, FOR THE PURPOSE OF MOVING TO ALASKA.

3. HE ARRIVED IN ALASKA SOMETIME IN AUGUST OR SEPTEMBER 1961.

4. HE WAS EMPLOYED BY THE ALASKA TRADES SUPPLY, INC., ANCHORAGE, ALASKA, FROM SEPTEMBER 1961 TO JUNE 8, 1962, UNTIL LAID OFF FOR LACK OF BUSINESS.

ON THE BASIS OF THE FACTS PRESENTED IT WAS ADMINISTRATIVELY DETERMINED THAT MR. THOMAS' PLACE OF ACTUAL RESIDENCE AT THE TIME OF EMPLOYMENT WAS ANCHORAGE, ALASKA.

THE AUTHORITY FOR THE PAYMENT OF THE ROUND-TRIP TRAVEL OF EMPLOYEES AND THEIR IMMEDIATE FAMILIES FROM POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO THE PLACES OF ACTUAL RESIDENCE IN THE UNITED STATES IS CONTAINED IN PUB.L. 737, APPROVED AUGUST 31, 1954, 68 STAT. 1008, 5 U.S.C. 73B-3, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"* * * 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 * * * ARE RETURNING TO THEIR ACTUAL PLACE OF RESIDENCE FOR THE PURPOSE OF TAKING LEAVE * * *.'

UNDER THE ABOVE-QUOTED STATUTORY LANGUAGE THE LOCATION OF THE EMPLOYEE'S PLACE OF ACTUAL RESIDENCE FOR BOTH SEPARATION AND HOME LEAVE TRAVEL PURPOSES IS ESTABLISHED AT THE "TIME" OF THE EMPLOYEE'S APPOINTMENT OR TRANSFER TO THE OVERSEAS POST OF DUTY AND IS NOT AFFECTED BY CHANGES IN THE EMPLOYEE'S INTENTIONS SUBSEQUENT TO THE "TIME" OF SUCH APPOINTMENT OR TRANSFER. THE LEGISLATIVE HISTORY OF THE ACT DOES NOT REVEAL A CONGRESSIONAL INTENT TO THE CONTRARY. 37 COMP. GEN. 846.

THE CITED LAW DOES NOT PRECLUDE CORRECTION OF ERRORS WHEN IT LATER SHOWS CLEARLY THAT, IN FACT, THE PLACE OF ACTUAL RESIDENCE WAS OTHER THAN THE PLACE NAMED IN THE EMPLOYMENT PAPERS. A CLEAR SHOWING OF SUCH AN ERROR DOES NOT APPEAR TO HAVE BEEN MADE IN THIS CASE. THE FACT THAT MR. THOMAS RETAINED OWNERSHIP OF HIS PROPERTY IN NORWALK WHILE IN ALASKA IS NOT CONTROLLING AND THERE IS NO EVIDENCE TO INDICATE WHAT HIS INTENTIONS WERE IN REGARD TO BECOMING A PERMANENT RESIDENT OF ALASKA WHEN HE MOVED THERE IN AUGUST OR SEPTEMBER 1961, FOR EMPLOYMENT WITH A PRIVATE CONCERN.

THEREFORE, ON THE BASIS OF THE PRESENT RECORD WE FIND NO BASIS FOR DISAGREEING WITH THE DETERMINATION OF THE AGENCY THAT ALASKA WAS MR. THOMAS' ACTUAL RESIDENCE AT TIME OF APPOINTMENT. THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.