B-167423, SEP. 4, 1969

B-167423: Sep 4, 1969

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EMPLOYEE WHO WAS EMPLOYED IN ALASKA AS LOCAL HIRE BUT WHO SUBSEQUENTLY SIGNED EMPLOYMENT AGREEMENT SHOWING ACTUAL RESIDENCE AS DENVER. COLORADO MAY NOT HAVE AGENCY DETERMINATION THAT ALASKA WAS EMPLOYEE'S ACTUAL RESIDENCE AT TIME OF EMPLOYMENT REGARDED AS ARBITRARY. THE INFORMATION FURNISHED BY YOU SHOWS THAT YOU WERE APPOINTED TO A POSITION WITH THE DEPARTMENT OF THE ARMY. YOU WERE CONSIDERED TO BE A LOCAL HIRE AND YOU WERE NOT REQUIRED TO SIGN AN EMPLOYMENT AGREEMENT FOR TRAVEL AND TRANSPORTATION BENEFITS. IN JUNE OF 1964 YOU SOUGHT TO HAVE YOUR STATUS CONVERTED FROM LOCAL HIRE TO CONTRACT HIRE SO THAT YOU COULD BE AUTHORIZED LEAVE AND SEPARATION TRAVEL TO THE CONTINENTAL UNITED STATES.

B-167423, SEP. 4, 1969

CIVIL PAY - LEAVE AND TRAVEL - ALASKA LOCAL HIRE EMPLOYEES DECISION TO EMPLOYEE WHO REQUESTS REVIEW OF ARMY DETERMINATION DENYING ELIGIBILITY FOR LEAVE AND SEPARATION TRAVEL UNDER 5 U.S.C. 5728 (A) AND 5722. EMPLOYEE WHO WAS EMPLOYED IN ALASKA AS LOCAL HIRE BUT WHO SUBSEQUENTLY SIGNED EMPLOYMENT AGREEMENT SHOWING ACTUAL RESIDENCE AS DENVER, COLORADO MAY NOT HAVE AGENCY DETERMINATION THAT ALASKA WAS EMPLOYEE'S ACTUAL RESIDENCE AT TIME OF EMPLOYMENT REGARDED AS ARBITRARY, CAPRICIOUS OR SO AT VARIANCE WITH FACTS TO BE REGARDED AS UNREASONABLE. THEREFORE AGENCY DECISION AS TO INELIGIBILITY FOR LEAVE AND TRAVEL MUST STAND.

TO MR. RICHARD L. GRIFFITH:

WE REFER TO YOUR LETTERS OF JUNE 23 AND AUGUST 14, 1969, WITH ENCLOSURES, REQUESTING OUR OFFICE TO REVIEW THE DETERMINATION OF YOUR AGENCY REGARDING YOUR ELIGIBILITY FOR LEAVE AND SEPARATION TRAVEL AT GOVERNMENT EXPENSE UNDER THE PROVISIONS OF 5 U.S.C. 5728 (A) AND 5722.

THE INFORMATION FURNISHED BY YOU SHOWS THAT YOU WERE APPOINTED TO A POSITION WITH THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, ALASKA DISTRICT, ON MARCH 6, 1958. APPARENTLY, YOU WERE CONSIDERED TO BE A LOCAL HIRE AND YOU WERE NOT REQUIRED TO SIGN AN EMPLOYMENT AGREEMENT FOR TRAVEL AND TRANSPORTATION BENEFITS. IN JUNE OF 1964 YOU SOUGHT TO HAVE YOUR STATUS CONVERTED FROM LOCAL HIRE TO CONTRACT HIRE SO THAT YOU COULD BE AUTHORIZED LEAVE AND SEPARATION TRAVEL TO THE CONTINENTAL UNITED STATES. WHILE THAT REQUEST WAS DENIED, A SIMILAR REQUEST WAS APPROVED BY YOUR ADMINISTRATIVE OFFICE IN JUNE 1967. ON JUNE 30, 1967, YOU SIGNED AN EMPLOYMENT AGREEMENT WHICH STATED THAT YOUR ACTUAL RESIDENCE AT THE TIME OF YOUR APPOINTMENT WAS DENVER, COLORADO. SUBSEQUENTLY, YOU WERE AUTHORIZED LEAVE TRAVEL TO DENVER AND RETURN.

BY LETTER DATED MAY 12, 1969, HOWEVER, THE DISTRICT ENGINEER, ALASKA DISTRICT, ADVISED YOU THAT YOU ARE NOT ELIGIBLE FOR ADDITIONAL LEAVE TRAVEL OR FOR SEPARATION TRAVEL TO THE CONTINENTAL UNITED STATES SINCE YOUR PLACE OF ACTUAL RESIDENCE AT THE TIME OF YOUR APPOINTMENT (MARCH 1958) WAS ANCHORAGE, ALASKA. YOU REQUEST OUR OFFICE TO REVIEW THE DETERMINATION OF THE DISTRICT ENGINEER.

THE PLACE WHICH CONSTITUTES THE EMPLOYEE'S ACTUAL RESIDENCE AT THE TIME OF APPOINTMENT MUST BE DETERMINED UPON THE FACTS AND CIRCUMSTANCES OF EACH INDIVIDUAL CASE. THE RESPONSIBILITY FOR THAT DETERMINATION RESTS PRIMARILY WITH THE EMPLOYING OFFICE. THEREFORE, WE REQUESTED YOUR ADMINISTRATIVE OFFICE TO REVIEW THE FACTS AND CIRCUMSTANCES OF YOUR CASE AND REDETERMINE THE QUESTION OF YOUR PLACE OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT.

THE REPORT WHICH WE RECEIVED FROM THE OFFICE OF THE CHIEF OF ENGINEERS, DEPARTMENT OF THE ARMY, CONFIRMS THE FACT THAT YOU WERE CONSIDERED TO BE A LOCAL HIRE AT THE TIME OF YOUR APPOINTMENT. THE STANDARD FORM 50 EVIDENCING YOUR APPOINTMENT SHOWS ANCHORAGE, ALASKA, AS YOUR PLACE OF ACTUAL RESIDENCE AT THE TIME OF YOUR APPOINTMENT. IT APPEARS THAT SUCH DETERMINATION WAS BASED IN PART UPON INFORMATION APPEARING ON YOUR APPLICATION FOR FEDERAL EMPLOYMENT (FORM 57) TO THE EFFECT THAT ALASKA WAS YOUR LEGAL OR VOTING RESIDENCE AND THAT YOU WERE WILLING TO ACCEPT EMPLOYMENT ONLY IN ANCHORAGE, ALASKA. A COPY OF THE ADMINISTRATIVE REPORT IS ENCLOSED FOR YOUR INFORMATION. WE ASSUME THAT YOU HAVE COPIES OF THE PERSONNEL DOCUMENTS REFERRED TO IN THAT REPORT.

AS WE POINTED OUT ABOVE, THE EMPLOYING OFFICE HAS THE PRIMARY RESPONSIBILITY FOR DETERMINING THE EMPLOYEE'S PLACE OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT. IN SUCH MATTER WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE EMPLOYING AGENCY IN THE ABSENCE OF EVIDENCE CLEARLY SHOWING THE ADMINISTRATIVE DECISION TO BE ARBITRARY, CAPRICIOUS, OR SO AT VARIANCE WITH THE ESTABLISHED FACTS AS TO BE GROSSLY ERRONEOUS. ON THE PRESENT RECORD WE HAVE NO BASIS FOR HOLDING THAT THE ADMINISTRATIVE DETERMINATION IN YOUR CASE WAS ARBITRARY OR UNREASONABLE. THEREFORE, OUR OPINION IS THAT SUCH DECISION MUST STAND AND THAT YOU ARE NOT ENTITLED TO LEAVE AND SEPARATION TRAVEL AT GOVERNMENT EXPENSE.