B-160092, NOV. 21, 1966

B-160092: Nov 21, 1966

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THE DEPARTMENT OF THE AIR FORCE HELD THAT YOU WERE LIABLE UNDER YOUR AGREEMENT FOR THE TRAVEL AND TRANSPORTATION EXPENSES ALLOWED TO YOU UPON TRANSFER TO ALASKA. THE DEPARTMENT OF THE ARMY WAS ALSO AWARE OF THE FACT THAT YOU HAD NOT COMPLETED SERVING 12 MONTHS UNDER YOUR EMPLOYMENT AGREEMENT BECAUSE IN THEIR REQUEST FOR PRELIMINARY EMPLOYMENT DATA. IT WAS STATED THAT: "EMPLOYEE IS SERVING ON A TRANSPORTATION AGREEMENT UNDER THE PROVISIONS OF DOD JTR VOL 2. EFFECTIVE DATE OF AGREEMENT IS 14 FEBRUARY 1966. TRANSFER IS EFFECTED PRIOR TO 14 FEBRUARY 1967. HE WILL BE IN VIOLATION IN FIRST YEAR.'. YOU STILL ARE WORKING FOR THE DEPARTMENT OF DEFENSE. YOU FEEL THAT EVEN THOUGH TECHNICALLY YOU MAY NOT HAVE FULFILLED YOUR TRANSPORTATION AGREEMENT TO THE LETTER OF THE LAW YOU DID NOT RESIGN TO ASSUME A POSITION OUTSIDE THE DEPARTMENT OF DEFENSE BUT THAT YOU TRANSFERRED TO BETTER SERVE ALL CONCERNED IN THAT DEPARTMENT.

B-160092, NOV. 21, 1966

TO MR. AVERY F. ESKRIDGE:

THIS REFERS TO YOUR LETTER OF SEPTEMBER 14, 1966, WITH ENCLOSURES, CONCERNING YOUR INDEBTEDNESS TO THE DEPARTMENT OF THE AIR FORCE BECAUSE OF THE VIOLATION OF A TRANSPORTATION AGREEMENT IN THE FIRST YEAR AFTER ARRIVAL AT THE ELMENDORF AIR FORCE BASE, ALASKA.

THE INFORMATION OF RECORD SHOWS THAT UPON YOUR TRANSFER TO ALASKA YOU SIGNED AN EMPLOYMENT AGREEMENT TO SERVE WITH THE DEPARTMENT OF THE AIR FORCE IN ALASKA FOR A PERIOD OF 36 MONTHS BEGINNING WITH THE DATE OF YOUR ARRIVAL THERE. AFTER SERVING IN ALASKA WITH THE DEPARTMENT FOR LESS THAN 12 MONTHS YOU TRANSFERRED TO THE DEPARTMENT OF THE ARMY. THEREFORE, THE DEPARTMENT OF THE AIR FORCE HELD THAT YOU WERE LIABLE UNDER YOUR AGREEMENT FOR THE TRAVEL AND TRANSPORTATION EXPENSES ALLOWED TO YOU UPON TRANSFER TO ALASKA. THE DEPARTMENT IN ITS REPORT TO OUR OFFICE SAID THAT YOU CLEARLY UNDERSTOOD PRIOR TO THE TRANSFER TO WASHINGTON, D.C., IN AUGUST 1966 THAT YOU WOULD BE IN VIOLATION OF THE TERMS OF YOUR TRANSPORTATION AGREEMENT AND THAT YOU WOULD BE INDEBTED FOR THE COST OF YOUR TRANSFER TO ALASKA IN FEBRUARY 1966. THE DEPARTMENT OF THE ARMY WAS ALSO AWARE OF THE FACT THAT YOU HAD NOT COMPLETED SERVING 12 MONTHS UNDER YOUR EMPLOYMENT AGREEMENT BECAUSE IN THEIR REQUEST FOR PRELIMINARY EMPLOYMENT DATA, DATED AUGUST 3, 1966, IT WAS STATED THAT:

"EMPLOYEE IS SERVING ON A TRANSPORTATION AGREEMENT UNDER THE PROVISIONS OF DOD JTR VOL 2. EFFECTIVE DATE OF AGREEMENT IS 14 FEBRUARY 1966. TRANSFER IS EFFECTED PRIOR TO 14 FEBRUARY 1967, HE WILL BE IN VIOLATION IN FIRST YEAR.'

YOU SAY THAT YOU TRANSFERRED TO THE ARMY AT THE REQUEST OF THE OFFICE OF THE CHIEF OF SUPPORT SERVICES, MEMORIAL DIVISION, AND YOU STILL ARE WORKING FOR THE DEPARTMENT OF DEFENSE. YOU FEEL THAT EVEN THOUGH TECHNICALLY YOU MAY NOT HAVE FULFILLED YOUR TRANSPORTATION AGREEMENT TO THE LETTER OF THE LAW YOU DID NOT RESIGN TO ASSUME A POSITION OUTSIDE THE DEPARTMENT OF DEFENSE BUT THAT YOU TRANSFERRED TO BETTER SERVE ALL CONCERNED IN THAT DEPARTMENT.

SECTION 7 OF THE ACT OF AUGUST 2, 1946, AS AMENDED, 5 U.S.C. 73B-3, AUTHORIZED THE PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES OF EMPLOYEES TO AND FROM POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES. THAT SECTION, THE PROVISIONS OF WHICH UNDER 5 U.S.C. 73B-1 WERE EQUALLY APPLICABLE TO TRANSFERS TO POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES, PROVIDED IN PART:

"* * * THAT SUCH EXPENSES OF TRAVEL AND TRANSPORTATION TO POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES SHALL NOT BE ALLOWED UNLESS AND UNTIL THE PERSON SELECTED FOR APPOINTMENT SHALL AGREE IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE FOR TWELVE MONTHS FOLLOWING HIS APPOINTMENT * * * UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED AND IN CASE OF VIOLATION OF SUCH AGREEMENT ANY MONEYS EXPENDED BY THE UNITED STATES ON ACCOUNT OF SUCH TRAVEL AND TRANSPORTATION SHALL BE RECOVERABLE FROM THE INDIVIDUAL CONCERNED AS A DEBT DUE THE UNITED STATES * * *"

SECTION 2 OF THE TRANSPORTATION AGREEMENT SIGNED BY YOU PROVIDES IN PART THAT:

"IF I SEPARATE VOLUNTARILY * * * FOR * * * REASONS NOT ACCEPTABLE TO THE AIR FORCE, I WILL REIMBURSE THE U.S. GOVERNMENT FOR ALL EXPENSE FOR TRAVEL AND TRANSPORTATION FURNISHED UNDER THIS AGREEMENT IF SUCH SEPARATION OCCURS DURING THE FIRST TWELVE MONTHS OF MY AGREED PERIOD OF VICE.'

UNDER THE TERMS OF YOUR EMPLOYMENT AGREEMENT YOUR VOLUNTARY SEPARATION FROM THE AIR FORCE IN ALASKA DURING THE FIRST 12 MONTHS OF YOUR AGREED PERIOD OF SERVICE WOULD HAVE TO BE FOR REASONS ACCEPTABLE TO THE DEPARTMENT OF THE AIR FORCE BEFORE THE GOVERNMENT WOULD ASSUME THE OBLIGATION OF PAYING YOUR TRAVEL AND TRANSPORTATION EXPENSES.

PARAGRAPH C4009 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT AN EMPLOYEE WHO IS EARNING TRANSPORTATION ENTITLEMENT UNDER THE PERIOD OF SERVICE REQUIREMENT IN AN AGREEMENT MAY BE RELEASED FROM THE REQUIREMENT FOR REASONS THAT ARE ACCEPTABLE TO THE ACTIVITY WHERE THE EMPLOYEE IS ASSIGNED. THE ACTIVITY IN YOUR CASE WOULD BE THE DEPARTMENT OF THE AIR FORCE. SEE ALSO 31 COMP. GEN. 588, WHEREIN OUR OFFICE HELD THAT THE AGREEMENT COULD REQUIRE THE PERIOD OF SERVICE TO BE WITH THE DEPARTMENT OR AGENCY CONCERNED RATHER THAN WITH THE "GOVERNMENT.'

IN PARAGRAPH C1100 OF THE JOINT TRAVEL REGULATIONS THE TERM "SEPARATE DEPARTMENT" WITHIN THE DEPARTMENT OF DEFENSE MEANS SEPARATELY THE OFFICE OF THE SECRETARY OF DEFENSE AND DEFENSE GENCIES; THE DEPARTMENT OF THE ARMY; THE DEPARTMENT OF THE NAVY; AND THE DEPARTMENT OF THE AIR FORCE. THIS DISTINCTION IS NECESSARY WITH REGARD TO FUNDING FOR TRAVEL AND TRANSPORTATION FROM ONE SEPARATE DEPARTMENT TO ANOTHER.

THEREFORE, IN THE ABSENCE OF A DETERMINATION BY THE DEPARTMENT OF THE AIR FORCE THAT YOUR SEPARATION FROM THE POSITION IN ALASKA WAS FOR REASONS BEYOND YOUR CONTROL AND ACCEPTABLE TO THEM, OUR OPINION IS THAT YOU VIOLATED YOUR TRANSPORTATION AGREEMENT AND ARE LIABLE TO THE GOVERNMENT