B-163875, JUN. 21, 1968

B-163875: Jun 21, 1968

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SAUGET: THIS IS IN REPLY TO YOUR LETTER OF FEBRUARY 29. THE RECORD SHOWS THAT YOU WERE ORIGINALLY RECRUITED FROM THE UNITED STATES FOR DUTY ON GUAM IN APRIL 1947 BY THE DEPARTMENT OF THE NAVY. YOU INDICATE THAT YOU WERE EMPLOYED BY THE ARMY AND NAVY IN GUAM FROM 1947 TO 1950. IN SEPTEMBER 1956 FOLLOWING YOUR RETURN TO GUAM YOU WERE REINSTATED BY NAVAL AIR STATION (NAS) AGANA AND IN OCTOBER 1956 YOU WERE TRANSFERRED TO THE NAVAL SHIP REPAIR FACILITY. YOU STATE THAT BEFORE ACCEPTING EMPLOYMENT AT NAS IN 1956 A VERY CLEAR UNDERSTANDING WAS REACHED THAT YOU WERE ENTITLED TO A STATESIDE CONTRACT WITH ALL NORMALLY ACCORDED FRINGE BENEFITS. THE VALIDITY OF THE AGREEMENT THAT YOU ENTERED INTO IN 1956 WAS QUESTIONED BY THE COMMANDING OFFICER IN 1958 AS A BASIS FOR DENYING A RENEWAL AGREEMENT.

B-163875, JUN. 21, 1968

TO MR. FRANCIS L. SAUGET:

THIS IS IN REPLY TO YOUR LETTER OF FEBRUARY 29, 1968, REGARDING YOUR ENTITLEMENT TO TRAVEL EXPENSES FOR RETURNING TO YOUR PLACE OF RESIDENCE ON HOME LEAVE AND ALSO FOR THE GRANT OF TRAVEL LEAVE, HOME LEAVE, PLUS THE RIGHT TO ACCUMULATE 45 DAYS OF ANNUAL LEAVE AS AN EMPLOYEE OF THE NAVAL SHIP REPAIR FACILITY, GUAM.

THE RECORD SHOWS THAT YOU WERE ORIGINALLY RECRUITED FROM THE UNITED STATES FOR DUTY ON GUAM IN APRIL 1947 BY THE DEPARTMENT OF THE NAVY. YOU INDICATE THAT YOU WERE EMPLOYED BY THE ARMY AND NAVY IN GUAM FROM 1947 TO 1950. IN 1950 YOU RESIGNED TO ENTER PRIVATE BUSINESS. IN APRIL 1956 YOU SOLD THE BUSINESS AND RETURNED TO SAN DIEGO, CALIFORNIA, PURCHASING A HOME FOR YOURSELF AND YOUR FAMILY. IN SEPTEMBER 1956 FOLLOWING YOUR RETURN TO GUAM YOU WERE REINSTATED BY NAVAL AIR STATION (NAS) AGANA AND IN OCTOBER 1956 YOU WERE TRANSFERRED TO THE NAVAL SHIP REPAIR FACILITY, GUAM. YOU STATE THAT BEFORE ACCEPTING EMPLOYMENT AT NAS IN 1956 A VERY CLEAR UNDERSTANDING WAS REACHED THAT YOU WERE ENTITLED TO A STATESIDE CONTRACT WITH ALL NORMALLY ACCORDED FRINGE BENEFITS.

THE VALIDITY OF THE AGREEMENT THAT YOU ENTERED INTO IN 1956 WAS QUESTIONED BY THE COMMANDING OFFICER IN 1958 AS A BASIS FOR DENYING A RENEWAL AGREEMENT. THE SECRETARY OF THE NAVY UPHELD THE VALIDITY OF THE 1956 AGREEMENT AND STATED THAT ITS PROPRIETY COULD NOT BE USED AS A BASIS FOR DENYING A RENEWAL AGREEMENT BUT HE EXPRESSLY STATED THAT HIS DECISION DID NOT RULE AS TO WHETHER YOU SHOULD OR SHOULD NOT HAVE A RENEWAL AGREEMENT AT THAT TIME.

YOU WERE ACCORDED ALL HOME LEAVE BENEFITS THROUGH 1962. IN DECEMBER OF THAT YEAR YOU SIGNED A NEW AGREEMENT IN ORDER TO RETURN TO THE UNITED STATES FOR YOUR FATHER'S DEATH. IN MARCH 1963 YOU WERE ADVISED THAT ALL SUCH BENEFITS WERE BEING WITHDRAWN EXCEPT THE RIGHT TO RETURN TRAVEL AND TRANSPORTATION ON SEPARATION ON THE BASIS THAT ONLY THOSE LOCAL HIRES WHO ARE TEMPORARILY ABSENT FOR PURPOSES OF TRAVEL FROM THEIR RESIDENCES IN THE UNITED STATES ARE ENTITLED TO SUCH BENEFITS AND YOU DID NOT MEET SUCH CRITERIA. IN MAY 1963 YOUR TRAVEL AGREEMENT WAS AMENDED TO SHOW THAT YOU WERE NOT ELIGIBLE FOR THESE BENEFITS. IN 1964 AND AGAIN IN 1968 YOU APPEALED FROM THIS DETERMINATION TO THE DEPARTMENT OF THE NAVY ON THE GROUND THAT THE SECRETARY OF THE NAVY HAD APPROVED AND ACCORDED FULL RECOGNITION TO YOUR AGREEMENT IN 1958 AND THAT TO TAKE AWAY YOUR BENEFITS WAS A VIOLATION OF SUCH AGREEMENT. THE FACT THAT IT WAS DETERMINED THAT YOU WERE PERMITTED TO EXECUTE RENEWAL AGREEMENTS IN PRIOR YEARS DID NOT PRECLUDE A DETERMINATION TO THE CONTRARY THEREAFTER. IT MAY BE THAT THE ACTION IN PERMITTING YOU TO SIGN A TRANSPORTATION AGREEMENT IN 1956 DID NOT ACCORD WITH THE LAW AND REGULATIONS. HOWEVER, WE OFFER NO OPINION AS TO THE VALIDITY THEREOF AT THIS TIME.

IT IS THE DEPARTMENT'S POSITION THAT WHILE YOU MAY HAVE PURCHASED A RESIDENCE IN SAN DIEGO, CALIFORNIA, IN MAY 1956 THERE IS NO SHOWING THAT YOU OR YOUR FAMILY HAVE RESIDED IN IT, THAT YOU AND YOUR FAMILY HAVE LIVED ON GUAM SINCE 1947 AND THAT YOU WERE NOT TEMPORARILY ABSENT FROM A RESIDENCE IN THE UNITED STATES AT THE TIME OF YOUR REAPPOINTMENT TO A POSITION AT NAS, AGANA, IN SEPTEMBER 1956 BUT WERE AND HAD BEEN RESIDING IN GUAM.

WITH RESPECT TO THE PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES IN CONNECTION WITH VACATION LEAVE 5 U.S.C. 5728 PROVIDES:

"/A)UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, AN AGENCY SHALL PAY FROM ITS APPROPRIATIONS THE EXPENSES OF ROUND-TRIP TRAVEL OF AN EMPLOYEE, AND THE TRANSPORTATION OF HIS IMMEDIATE FAMILY, BUT NOT HOUSEHOLD GOODS, FROM HIS POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO THE PLACE OF HIS ACTUAL RESIDENCE AT THE TIME OF APPOINTMENT OR TRANSFER TO THE POST OF DUTY, AFTER HE HAS SATISFACTORILY COMPLETED AN AGREED PERIOD OF SERVICE OUTSIDE THE CONTINENTAL UNITED STATES AND IS RETURNING TO HIS ACTUAL PLACE OF RESIDENCE TO TAKE LEAVE BEFORE SERVING ANOTHER TOUR OF DUTY AT THE SAME OR ANOTHER POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES UNDER A NEW WRITTEN AGREEMENT MADE BEFORE DEPARTING FROM THE POST OF DUTY.'

IT SHOULD BE NOTED THAT UNDER THE ABOVE PROVISION OF LAW PAYMENT OF TRAVELING EXPENSES IS AUTHORIZED TO AN EMPLOYEE'S ACTUAL RESIDENCE OTHER THAN HIS PLACE OF EMPLOYMENT. MOREOVER, THE STATUTES (5 U.S.C. 6303, 6304, AND 6305) AND THE REGULATIONS ISSUED PURSUANT THERETO CONCERNING THE 45 DAYS ACCUMULATION OF ANNUAL LEAVE, FREE TRAVEL TIME, AND HOME LEAVE ARE INTERRELATED AND TO A LARGE EXTENT PREDICATED UPON AN EMPLOYEE BEING ENTITLED TO BE RETURNED FOR LEAVE PURPOSES TO HIS ACTUAL RESIDENCE AT GOVERNMENT EXPENSE. WE POINT OUT THAT UNDER THE STATUTES AND REGULATIONS APPLICABLE TO HOME LEAVE AND THE ACCUMULATION OF ANNUAL LEAVE TO A MAXIMUM OF 45 DAYS AN EMPLOYEE IS ENTITLED TO THE BENEFITS THEREOF ONLY IF RECRUITED FROM THE UNITED STATES OR ITS TERRITORIES AND POSSESSIONS FOR EMPLOYMENT OUTSIDE THE AREA OF RECRUITMENT WITH CERTAIN EXCEPTIONS. SINCE YOU WERE RECRUITED IN GUAM FOR THE SECOND PERIOD OF YOUR GOVERNMENT SERVICE IN 1956 THE ONLY EXCEPTION THAT MIGHT BE APPLICABLE IN YOUR CASE IS THE ONE CONCERNING RECRUITMENT OF AN EMPLOYEE WHEN TEMPORARILY ABSENT FROM THE UNITED STATES FOR THE PURPOSE OF TRAVEL OR FORMAL STUDY AND WHO HAS MAINTAINED RESIDENCE IN THE UNITED STATES DURING THE PERIOD OF TEMPORARY ABSENCE. (IN ADDITION TO THE STATUTES CITED SEE 5 CFR 630.302 AND 630.601.)

IT IS NOTED THAT IN THE TRANSPORTATION AGREEMENT EXECUTED IN SEPTEMBER 1956 UPON REINSTATEMENT YOU LISTED YOUR ACTUAL PLACE OF RESIDENCE AT THAT TIME AS 3438 J STREET, SAN DIEGO, CALIFORNIA, WHEREAS THE HOUSE YOU SAY WAS PURCHASED IN MAY 1956 AS A RESIDENCE FOR YOUR FAMILY UPON RETURN FROM GUAM WAS LOCATED AT 626 SAN JACINTO DRIVE, SAN DIEGO, CALIFORNIA, ALSO, THAT YOU SOLD THIS LATTER HOUSE IN JUNE 1960 AND LISTED YOUR PLACE OF ACTUAL RESIDENCE IN THE UNITED STATES ON THE AGREEMENT EXECUTED IN DECEMBER 1962 AS MERELY "SAN DIEGO, CALIFORNIA.'

IT DOES NOT APPEAR THAT YOUR PRESENCE ON GUAM IN 1956 NECESSARILY WOULD COME WITHIN THE EXCEPTION RELATING TO A TRAVELER FOR BUSINESS OR VACATION PURPOSES WHO IS TEMPORARILY ABSENT FROM THE UNITED STATES. THE RECORD INDICATES THAT YOU HAD RESIDED CONTINUOUSLY ON GUAM SINCE 1947 AND HAD BEEN ENGAGED IN PRIVATE BUSINESS THERE FOR SIX YEARS BETWEEN 1950 AND 1956. MOREOVER, THERE IS SUPPORT FOR THE VIEW THAT YOUR TRIP TO SAN DIEGO FOR THE PURPOSE OF PURCHASING A RESIDENCE (IN WHICH YOU NEVER LIVED) FOR THE FUTURE RETURN OF YOU AND YOUR FAMILY TO THE UNITED STATES DID NOT ESTABLISH SAN DIEGO AS YOUR PLACE OF RESIDENCE.

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 DEPARTMENT OF THE NAVY HAS CONCURRED WITH THE COMMANDING OFFICER UNITED STATES NAVAL SHIP REPAIR FACILITY, GUAM, THAT YOUR RESIDENCE AT THE TIME OF REINSTATEMENT IN 1956 WAS GUAM AND, THEREFORE, YOU ARE NOT ENTITLED TO ACCUMULATION OF 45 DAYS LEAVE, HOME LEAVE, HOME LEAVE TRAVEL TIME OR VACATION LEAVE TRAVEL EXPENSE.

UPON EXAMINATION OF THE FACTS OF RECORD WE FIND NO CLEAR BASIS FOR DISAGREEMENT WITH THOSE CONCLUSIONS. ACCORDINGLY, YOU ARE NOT ENTITLED TO ROUND-TRIP TRAVEL EXPENSES TO THE UNITED STATES FOR LEAVE PURPOSES, FREE TRAVEL TIME, HOME LEAVE OR THE ACCUMULATION OF 45 DAYS ANNUAL LEAVE.