B-162025, AUGUST 18, 1967, 47 COMP. GEN. 122

B-162025: Aug 18, 1967

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OFFICERS AND EMPLOYEES - TRANSFERS - SERVICE AGREEMENTS - OVERSEAS EMPLOYEES TRANSFERRED TO THE UNITED STATES AN EMPLOYEE WHO UPON COMPLETION OF AN AGREED PERIOD OF OVERSEAS DUTY IS TRANSFERRED TO A DUTY STATION IN THE CONTINENTAL UNITED STATES BY AGENCIES WITHIN THE DEPARTMENT OF DEFENSE IS NOT REQUIRED TO SIGN A NEW TRANSPORTATION AGREEMENT TO REMAIN IN GOVERNMENT SERVICE FOR 12 MONTHS SUBSEQUENT TO THE TRANSFER. EVEN THOUGH THEY DO NOT AGREE TO REMAIN IN GOVERNMENT SERVICE FOR A 12 MONTH PERIOD FOLLOWING TRANSFER ARE ELIGIBLE FOR THE TRAVEL AND TRANSPORTATION BENEFITS PROVIDED IN BUREAU OF THE BUDGET CIRCULAR NO. PAYMENT OF SUBSISTENCE WHILE OCCUPYING TEMPORARY LODGINGS IS NOT RESTRICTED BUT IS ALLOWABLE AT THE DISCRETION OF THE AGENCY.

B-162025, AUGUST 18, 1967, 47 COMP. GEN. 122

OFFICERS AND EMPLOYEES - TRANSFERS - SERVICE AGREEMENTS - OVERSEAS EMPLOYEES TRANSFERRED TO THE UNITED STATES AN EMPLOYEE WHO UPON COMPLETION OF AN AGREED PERIOD OF OVERSEAS DUTY IS TRANSFERRED TO A DUTY STATION IN THE CONTINENTAL UNITED STATES BY AGENCIES WITHIN THE DEPARTMENT OF DEFENSE IS NOT REQUIRED TO SIGN A NEW TRANSPORTATION AGREEMENT TO REMAIN IN GOVERNMENT SERVICE FOR 12 MONTHS SUBSEQUENT TO THE TRANSFER, ABSENT SUCH A REQUIREMENT IN SECTION 1.3C OF BUREAU OF THE BUDGET CIRCULAR NO. A-56 CONTAINING THE STATUTORY REGULATIONS WITH REGARD TO AGREEMENTS TO REMAIN IN GOVERNMENT SERVICE AS A CONDITION FOR THE REIMBURSEMENT OF TRANSFER COSTS. OFFICERS AND EMPLOYEES - TRANSFERS - RELOCATION EXPENSES - OVERSEAS EMPLOYEES TRANSFERRED TO THE UNITED STATES EMPLOYEES TRANSFERRED FROM OVERSEAS DUTY STATIONS TO DUTY STATIONS WITHIN CONTINENTAL UNITED STATES BY DEPARTMENT OF DEFENSE AGENCIES, EVEN THOUGH THEY DO NOT AGREE TO REMAIN IN GOVERNMENT SERVICE FOR A 12 MONTH PERIOD FOLLOWING TRANSFER ARE ELIGIBLE FOR THE TRAVEL AND TRANSPORTATION BENEFITS PROVIDED IN BUREAU OF THE BUDGET CIRCULAR NO. A 56, SECTION 1.3C OF THE CIRCULAR CONTAINING THE STATUTORY REGULATIONS WITH REGARD TO TRANSPORTATION AGREEMENTS NOT REQUIRING THE EXECUTION OF AN AGREEMENT, AND ALTHOUGH THE COSTS OF A HOUSE HUNTING TRIP MAY NOT BE AUTHORIZED IN CONNECTION WITH A TRANSFER TO AND FROM CONTINENTAL UNITED STATES, PAYMENT OF SUBSISTENCE WHILE OCCUPYING TEMPORARY LODGINGS IS NOT RESTRICTED BUT IS ALLOWABLE AT THE DISCRETION OF THE AGENCY; HOWEVER, THE PAYMENT OF PER DIEM FOR DEPENDENTS AND THE MISCELLANEOUS EXPENSE ALLOWANCE ARE NOT SUBJECT TO ADMINISTRATIVE DISCRETION UNDER THE TERMS OF THE CONTROLLING REGULATION. REGULATIONS - ADMINISTRATIVE IN LIEU OF STATUTORY REGULATION ALTHOUGH DEPARTMENT OF DEFENSE OVERSEAS EMPLOYEES TRANSFERRED TO A DUTY STATION WITHIN CONTINENTAL UNITED STATES ARE NOT REQUIRED TO SIGN A TRANSPORTATION AGREEMENT IN ORDER TO BE ELIGIBLE FOR THE TRAVEL AND TRANSPORTATION BENEFITS PROVIDED IN BUREAU OF THE BUDGET CIRCULAR NO. A 56, THE DEPARTMENT MAY PURSUANT TO AN ADMINISTRATIVE REGULATION REFUSE TO APPROVE PAYMENT OF THE TRAVEL AND TRANSPORTATION EXPENSES INVOLVED IN CONNECTION WITH CHANGE OF OFFICIAL STATION FROM OVERSEAS UNLESS AND UNTIL THE EMPLOYEE EXECUTES AN AGREEMENT TO REMAIN IN THE GOVERNMENT SERVICE OR IN THE SERVICE OF THE DEPARTMENT INVOLVED FOR A SPECIFIED PERIOD OF TIME, AND AS AN AGREEMENT UNDER AN ADMINISTRATIVE REGULATION WOULD NOT BE PREDICATED ON A SPECIFIC PROVISION OF LAW OR STATUTORY REGULATION, THE ADMINISTRATIVE REGULATION SHOULD CONFORM AS CLOSELY AS POSSIBLE TO CIRCULAR NO. A-56 AND PRESCRIBE ACCEPTABLE REASONS FOR FAILURE TO REMAIN IN THE GOVERNMENT SERVICE AS AGREED, AND THE LIABILITY OF THE EMPLOYEE FOR FAILURE TO FULFILL THE AGREEMENT. OFFICERS AND EMPLOYEES - TRANSFERS - RELOCATION EXPENSES - DUTY STATIONS WITHIN UNITED STATES REQUIREMENT THE TERM "WITHIN THE CONTINENTAL UNITED STATES" AS USED BY THE BUREAU OF THE BUDGET IN SECTION 1.3C (1) OF CIRCULAR NO. A-56, AND DERIVED FROM SECTION 28 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS ADDED BY PUBLIC LAW 89-516, MAY NOT BE INTERPRETED TO MEAN "TO AND WITHIN THE CONTINENTAL UNITED STATES," ABSENT A PROPER BASIS TO JUSTIFY THE INTERPRETATION.

TO THE SECRETARY OF THE NAVY, AUGUST 18, 1967:

WE REFER TO YOUR LETTER OF JUNE 21, 1967, WHICH HAS BEEN ASSIGNED CONTROL NO. 67-23 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, CONCERNING THE IMPLEMENTATION OF A POLICY REQUIRING EMPLOYEES WHO ARE TRANSFERRED FROM OVERSEAS DUTY STATIONS TO DUTY STATIONS IN THE CONTINENTAL UNITED STATES BY AGENCIES WITHIN THE DEPARTMENT OF DEFENSE TO AGREE TO REMAIN IN THE SERVICE OF THE GOVERNMENT FOR 12 MONTHS FOLLOWING SUCH TRANSFER IN ORDER TO BE ELIGIBLE FOR PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES AUTHORIZED BY THE ACT OF JULY 21, 1966, PUB. L. 89 -516, 80 STAT. 323 AMENDING THE ADMINISTRATIVE EXPENSES ACT OF 1946.

SECTION 28 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS ADDED BY PUB. L. 89-516, 80 STAT. 325 PROVIDES:

"NOTWITHSTANDING THE PROVISIONS OF SUBSECTIONS (A) AND (B) OF SECTION 1, AND OF SECTIONS 23, 24, 25, AND 27 OF THIS ACT, THE TRAVEL AND TRANSPORTATION EXPENSES, INCLUDING STORAGE OF HOUSEHOLD GOODS AND PERSONAL EFFECTS, AND OTHER RELOCATION ALLOWANCES SHALL NOT BE ALLOWED THEREUNDER WHEN A CIVILIAN OFFICER OR EMPLOYEE IS TRANSFERRED WITHIN THE CONTINENTAL UNITED STATES, EXCLUDING ALASKA, UNLESS AND UNTIL SUCH OFFICER OR EMPLOYEE SHALL AGREE IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE FOR TWELVE MONTHS FOLLOWING HIS TRANSFER, UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED. IN CASE OF VIOLATION OF SUCH AGREEMENT, ANY MONEYS EXPENDED BY THE UNITED STATES UNDER SAID SECTIONS OF THIS ACT ON ACCOUNT OF SUCH OFFICER OR EMPLOYEE SHALL BE RECOVERABLE FROM HIM AS A DEBT DUE THE UNITED STATES.'

5 U.S.C. 5722 AND 5724 (D/--FORMERLY SECTION 1 AND PART OF SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946--REQUIRE THAT EMPLOYEES WHO ARE TRANSFERRED TO OVERSEAS DUTY STATIONS AGREE TO REMAIN IN THE GOVERNMENT SERVICE FOR A PERIOD OF FROM ONE TO THREE YEARS IN ORDER TO BE ELIGIBLE FOR REIMBURSEMENT OR PAYMENT BY THE GOVERNMENT OF THE TRAVEL AND TRANSPORTATION COSTS INVOLVED IN SUCH TRANSFER AND IN RETURN TO THE UNITED STATES AT THE TIME OF SEPARATION.

YOU PRESENT THE FOLLOWING THREE QUESTIONS WITH REGARD TO TRANSPORTATION AGREEMENTS OF EMPLOYEES WHO ARE TRANSFERRED FROM OVERSEAS DUTY STATIONS TO DUTY STATIONS IN THE CONTINENTAL UNITED STATES:

"A. IN THE CASE OF AN EMPLOYEE TRANSFERRED TO A POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES WHO COMPLETED A TRANSPORTATION AGREEMENT AT TIME OF SUCH TRANSFER, AND SERVED A PRESCRIBED TOUR OF DUTY THEREAT, IS A NEW TRANSPORTATION AGREEMENT REQUIRED INCIDENT TO HIS TRANSFER TO THE NEW POSITION IN THE CONTINENTAL UNITED STATES?

"B. IF THE ANSWER TO A. ABOVE IS IN THE NEGATIVE, IS THE EMPLOYEE ENTITLED TO THE SAME BENEFITS AUTHORIZED BY PL 89-516 THAT WOULD BE APPLICABLE TO A TRANSFER BETWEEN OFFICIAL STATIONS WITHIN THE UNITED STATES?

"C. MAY THE TERM -WITHIN THE CONTINENTAL UNITED STATES-, AS USED IN THE FIRST SENTENCE OF SECTION 1.3C (1) OF BOB CIRCULAR A-56, BE PROPERLY CONSTRUED TO MEAN -TO AND WITHIN THE CONTINENTAL UNITED STATES ? "

SECTION 1.3C OF BUREAU OF THE BUDGET CIRCULAR NO. A-56 CONTAINS THE STATUTORY REGULATIONS WITH REGARD TO THE AGREEMENTS REQUIRED BY THE PROVISIONS OF LAW CITED ABOVE. THAT SECTION DOES NOT REQUIRE EMPLOYEES WHO ARE TRANSFERRED FROM OVERSEAS DUTY STATIONS TO DUTY STATIONS WITHIN THE CONTINENTAL UNITED STATES TO AGREE TO REMAIN IN GOVERNMENT SERVICE AS A CONDITION OF REIMBURSEMENT OF THE COSTS OF SUCH TRANSFER. FURTHER, A NEW TRANSPORTATION AGREEMENT IS NOT REQUIRED BY THE APPLICABLE PROVISIONS OF LAW WHEN AN EMPLOYEE IS TRANSFERRED FROM OVERSEAS TO THE UNITED STATES. THEREFORE, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

SINCE THE CONTROLLING LAW AND REGULATION DO NOT REQUIRE TRANSPORTATION AGREEMENTS TO BE EXECUTED BY EMPLOYEES WHEN THEY ARE TRANSFERRED AT GOVERNMENT EXPENSE FROM OVERSEAS OFFICIAL STATIONS TO OFFICIAL STATIONS IN THE UNITED STATES, BENEFITS OTHERWISE ALLOWABLE UNDER THE PROVISION OF PUB. L. 89-516 AND THE REGULATIONS ISSUED PURSUANT THERETO ARE PAYABLE IN ACCORDANCE WITH THOSE PROVISIONS EVEN THOUGH THE EMPLOYEE HAS NOT SIGNED A TRANSPORTATION AGREEMENT. IN THAT CONNECTION WE NOTE THAT THE COSTS OF A HOUSE HUNTING TRIP AND THE COSTS OF THE PURCHASE AND SALE OF RESIDENCES ARE NOT AUTHORIZED IN CONNECTION WITH TRANSFERS TO OR FROM THE CONTINENTAL UNITED STATES; THAT PAYMENT OF SUBSISTENCE WHILE OCCUPYING TEMPORARY LODGINGS IS NOT SO RESTRICTED BUT IS ALLOWABLE AT THE DISCRETION OF THE AGENCY; AND, THAT PAYMENT OF PER DIEM FOR AN EMPLOYEE'S DEPENDENTS AND OF THE MISCELLANEOUS EXPENSE ALLOWANCE ARE NOT SUBJECT TO THE DISCRETION OF THE AGENCY UNDER THE TERMS OF THE CONTROLLING REGULATION. IN THE ABSENCE OF A REGULATION TO THE CONTRARY, EMPLOYEES TRANSFERRED FROM OVERSEAS TO THE CONTINENTAL UNITED STATES AT GOVERNMENT EXPENSE ARE ENTITLED TO BE PAID TRAVEL AND TRANSPORTATION BENEFITS IN ACCORDANCE WITH CIRCULAR A-56, EVEN THOUGH THEY DO NOT SIGN TRANSPORTATION AGREEMENTS. YOUR SECOND QUESTION IS ANSWERED ACCORDINGLY.

WE FIND NO PROPER BASIS TO JUSTIFY AN INTERPRETATION OF THE PHRASE "WITHIN THE CONTINENTAL UNITED STATES" AS USED BY THE BUREAU OF THE BUDGET IN SECTION 1.3C (1) OF CIRCULAR NO. A-56, AS MEANING "TO AND WITHIN THE CONTINENTAL UNITED STATES.' THAT PHRASE WAS DERIVED DIRECTLY FROM SECTION 28 AS ADDED BY PUB. L. 89-516. UNDER THE BUREAU OF THE BUDGET REGULATION IN ITS PRESENT FORM THE THIRD QUESTION IS ANSWERED IN THE NEGATIVE.

IN VIEW OF THE ABOVE, UNDER THE PRESENT LAW AND THE REGULATIONS OF THE BUREAU OF THE BUDGET, EMPLOYEES OF THE DEPARTMENT OF DEFENSE WHO ARE TRANSFERRED FROM OVERSEAS DUTY STATIONS TO DUTY STATIONS WITHIN THE CONTINENTAL UNITED STATES ARE ELIGIBLE FOR THE TRAVEL AND TRANSPORTATION BENEFITS AS PROVIDED IN CIRCULAR NO. A-56 EVEN THOUGH THEY DO NOT AGREE TO REMAIN IN GOVERNMENT SERVICE FOR A PERIOD OF 12 MONTHS FOLLOWING SUCH TRANSFER.

ON THE OTHER HAND, OUR OPINION IS THAT THE DEPARTMENT HAS AUTHORITY TO REFUSE TO AUTHORIZE OR APPROVE PAYMENT OF ANY EXPENSE INVOLVED IN THE TRAVEL OR TRANSPORTATION OF AN EMPLOYEE IN CONNECTION WITH A CHANGE OF OFFICIAL STATION FROM OVERSEAS TO THE CONTINENTAL UNITED STATES UNLESS AND UNTIL THE EMPLOYEE CONCERNED EXECUTES AN AGREEMENT TO REMAIN IN THE GOVERNMENT SERVICE OR IN THE SERVICE OF THE DEPARTMENT INVOLVED FOR A SPECIFIED PERIOD OF TIME. SINCE SUCH AN AGREEMENT UNDER AN ADMINISTRATIVE REGULATION WOULD NOT BE PREDICATED ON A SPECIFIC PROVISION OF LAW OR STATUTORY REGULATION IT IS OUR VIEW THAT THE REGULATION ITSELF SHOULD CONTAIN SPECIFIC PROVISIONS WITH REGARD TO ACCEPTABLE REASONS FOR FAILURE TO REMAIN IN THE GOVERNMENT SERVICE FOR THE AGREED PERIOD AND WITH REGARD TO THE LIABILITY OF THE EMPLOYEE TO THE GOVERNMENT SHOULD HE FAIL TO FULFILL THE AGREEMENT. FURTHER, IT IS OUR VIEW THAT THE CRITERIA IN THE ADMINISTRATIVE REGULATIONS SHOULD CONFORM AS CLOSELY AS POSSIBLE TO THOSE SET FORTH BY BUREAU OF THE BUDGET CIRCULAR NO. A-56.