B-167452, AUG. 20, 1969

B-167452: Aug 20, 1969

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FORMER PEACE CORPS VOLUNTEERS WHO RECEIVED CASH PAYMENTS INSTEAD OF TRANSPORTATION AND WHO ARE LOCALLY HIRED ARE ENTITLED TO RETURN TRAVEL AND TRANSPORTATION BENEFITS WITHOUT REDUCTION OF THE AMOUNT OF CASH PAYMENT IN LIEU OF TRANSPORTATION INCIDENT TO TERMINATION OF SERVICE WITH PEACE CORPS. SECRETARY: REFERENCE IS MADE TO THE REQUEST OF JUNE 30. FOR AN ADVANCE DECISION CONCERNING THE APPLICATION OF PARAGRAPH C 4202 -3 OF VOLUME 2 OF THE JOINT TRAVEL REGULATIONS (JTR) TO LOCALLY HIRED EMPLOYEES WHO WERE FORMER PEACE CORPS ENROLLEES. PARAGRAPH C 4202-3 OF JTR PROVIDES THAT LOCALLY HIRED EMPLOYEES WHO WERE GIVEN CASH PAYMENTS FOR CONSTRUCTIVE TRAVEL AND/OR TRANSPORTATION EXPENSE AT THE TIME OF SEPARATION OVERSEAS FROM THE MILITARY SERVICE.

B-167452, AUG. 20, 1969

CIVIL PAY - TRANSPORTATION - LOCALLY HIRED EMPLOYEES FORMERLY WITH PEACE CORPS DECISION TO SECRETARY OF ARMY CONCERNING RETURN TRANSPORTATION ENTITLEMENT OF FORMER PEACE CORPS VOLUNTEERS LOCALLY HIRED. FORMER PEACE CORPS VOLUNTEERS WHO RECEIVED CASH PAYMENTS INSTEAD OF TRANSPORTATION AND WHO ARE LOCALLY HIRED ARE ENTITLED TO RETURN TRAVEL AND TRANSPORTATION BENEFITS WITHOUT REDUCTION OF THE AMOUNT OF CASH PAYMENT IN LIEU OF TRANSPORTATION INCIDENT TO TERMINATION OF SERVICE WITH PEACE CORPS.

TO MR. SECRETARY:

REFERENCE IS MADE TO THE REQUEST OF JUNE 30, 1969, FROM YOUR ASSISTANT SECRETARY, THE HONORABLE WILLIAM K. BREHM, FORWARDED HERE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE ON JULY 2, 1969, PDTATAC 69- 29, FOR AN ADVANCE DECISION CONCERNING THE APPLICATION OF PARAGRAPH C 4202 -3 OF VOLUME 2 OF THE JOINT TRAVEL REGULATIONS (JTR) TO LOCALLY HIRED EMPLOYEES WHO WERE FORMER PEACE CORPS ENROLLEES.

PARAGRAPH C 4202-3 OF JTR PROVIDES THAT LOCALLY HIRED EMPLOYEES WHO WERE GIVEN CASH PAYMENTS FOR CONSTRUCTIVE TRAVEL AND/OR TRANSPORTATION EXPENSE AT THE TIME OF SEPARATION OVERSEAS FROM THE MILITARY SERVICE, OR AT THE TIME OF SEPARATION FROM EMPLOYMENT WITH A CONTRACTOR UNDER A UNITED STATES GOVERNMENT CONTRACT, ARE ALLOWED EARNED TRANSPORTATION ENTITLEMENT ONLY TO THE EXTENT OF THAT PORTION OF TRAVEL AND/OR TRANSPORTATION FOR WHICH NO PAYMENT WAS RECEIVED. A QUESTION HAS ARISEN WITHIN THE SERVICES AS TO WHETHER OR NOT, IN VIEW OF 45 COMP. GEN. 738 AND 42 ID. 443, THE PROVISIONS OF THIS PARAGRAPH IN VOLUME 2 OF THE JOINT TRAVEL REGULATIONS APPLIES WHEN A FORMER PEACE CORPS VOLUNTEER WHO RECEIVES CASH IN LIEU OF BEING PROVIDED TRANSPORTATION IS HIRED LOCALLY OVERSEAS AS AN AIR FORCE EMPLOYEE.

THE LETTER OF JUNE 30, 1969, READS IN PART AS FOLLOWS: "IT APPEARS THAT THE RULING IN 45 COMP. GEN. 738, THAT THE EMPLOYEE CONCERNED, A FORMER PEACE CORPS VOLUNTEER, IS NOT ENTITLED TO GREATER REIMBURSEMENT THAN THE AMOUNT HE ACTUALLY EXPENDED IN TRAVELING INCIDENT TO HIS APPOINTMENT, IS BASED ON A PROVISION OF HIS EMPLOYMENT CONTRACT WITH USAID, RATHER THAN THE FACT THAT HE WAS A FORMER PEACE CORPS VOLUNTEER. THIS CONTRACT PROVISION PROVIDED THAT THE CONTRACTOR WAS ENTITLED TO BE REIMBURSED -ON THE BASIS OF COSTS ACTUALLY INCURRED BUT NOT TO EXCEED THE MOST DIRECT ROUTE OF THE CLASS AND KIND OF TRAVEL ACTUALLY PERFORMED AND IN NO EVENT TO EXCEED THE COST OF ECONOMY CLASS, COMMERCIAL, REGULARLY SCHEDULED AIR TRAVEL BY THE MOST DIRECT ROUTE- "IT APPEARS THAT THE RULING CONTAINED IN 42 COMP. GEN. 443 INDICATING THAT PEACE CORPS VOLUNTEERS ARE NOT TO BE CONSIDERED OFFICERS AND EMPLOYEES OF THE UNITED STATES AND THAT THE LAW AND REGULATIONS RELATING TO THE TRAVEL OF SUCH EMPLOYEES ARE NOT APPLICABLE TO PEACE CORPS VOLUNTEERS RENDERS JTR, PAR. C 4202-3, INAPPLICABLE TO SUCH VOLUNTEERS. ON THE OTHER HAND, IF THE EMPLOYMENT CONTRACT USED BY A DEPARTMENT IN HIRING EMPLOYEES LOCALLY OVERSEAS CONTAINED A PROVISION SIMILAR TO THAT USED BY USAID IN THE SITUATION OUTLINED IN 45 COMP. GEN. 738, THEN THE RULING IN THAT DECISION AND JTR, VOLUME 2, PARAGRAPH C 4202-3 WOULD APPLY.'YOUR DECISION IS REQUESTED AS WHETHER OR NOT THIS INTERPRETATION OF THE DECISION IN QUESTION IS PROPER.'

PARAGRAPH C 4202-3 OF JTR COVERS ONLY THOSE LOCALLY HIRED EMPLOYEES WHO PRIOR TO THEIR CIVILIAN APPOINTMENTS HAD RECEIVED A CASH EQUIVALENT PAYMENT FOR RETURN TRANSPORTATION TO THE UNITED STATES INCIDENT TO A SEPARATION FROM THE MILITARY SERVICE OR FROM A POSITION WITH A GOVERNMENT CONTRACTOR. BY ITS TERMS THAT PARAGRAPH DOES NOT APPLY TO A FORMER PEACE CORPS VOLUNTEER WHO HAD RECEIVED A CASH EQUIVALENT PAYMENT IN LIEU OF RETURN TRANSPORTATION TO THE UNITED STATES.

THE TWO DECISIONS (45 COMP. GEN. 738 AND 42 ID. 443) DISCUSSED IN THE REQUEST FOR DECISION ARE NOT DETERMINATIVE OF THE MATTER. IT IS TRUE, HOWEVER, THAT AN EMPLOYEE WHO FORMERLY WAS A PEACE CORPS VOLUNTEER AND WHO, INCIDENT TO THE TERMINATION OF HIS SERVICE AS A VOLUNTEER, RECEIVED THE CASH EQUIVALENT OF RETURN TRANSPORTATION IN KIND TO THE UNITED STATES IS NOT AUTOMATICALLY PRECLUDED FROM RECEIVING RETURN TRANSPORTATION TO THE UNITED STATES AT GOVERNMENT EXPENSE INCIDENT TO A SEPARATION FROM AN OVERSEAS CIVILIAN POSITION IN WHICH HE WAS EMPLOYED LOCALLY FOLLOWING HIS PEACE CORPS SERVICE.

OUR OFFICE CONSISTENTLY HAS ADHERED TO THE VIEW THAT AN OVERSEAS EMPLOYEE WHO IS HIRED LOCALLY HAS NO ENFORCEABLE RIGHT TO REIMBURSEMENT FOR TRAVEL EXPENSES INCURRED IN RETURNING TO THE UNITED STATES INCIDENT TO SEPARATION FROM SUCH POSITION IN THE ABSENCE OF AN EMPLOYMENT AGREEMENT PROVIDING FOR SUCH RETURN TRANSPORTATION COSTS. SEE DECISIONS OF DECEMBER 16, 1959, B- 140735; MARCH 30, 1961, B-144656 AND MARCH 7, 1967, B-158273. MOREOVER, THERE IS NO STATUTORY REQUIREMENT OR REQUIREMENT BY DECISION OF THIS OFFICE THAT A TRANSPORTATION AGREEMENT BE NEGOTIATED IN SUCH CASES.

ON THE OTHER HAND, THE JOINT TRAVEL REGULATIONS EXPRESSLY PROVIDE THAT AGREEMENTS FOR TRANSPORTATION ENTITLEMENT WILL BE NEGOTIATED WITH ANY LOCALLY HIRED EMPLOYEE MEETING CERTAIN CONDITIONS SPECIFIED IN SUCH REGULATIONS AND THAT AN EMPLOYEE WITH WHOM SUCH AN AGREEMENT HAS BEEN NEGOTIATED IS ENTITLED TO RETURN TRAVEL AT GOVERNMENT EXPENSE TO HIS PLACE OF ACTUAL RESIDENCE IN THE UNITED STATES PROVIDED HE FULFILLS THE CONDITIONS SPECIFIED IN THE REGULATIONS. SEE PARAGRAPHS C 4001, C 4002 3 AND C 4200. MOREOVER, WE UNDERSTAND THAT THERE IS NO AUTHORITY VESTED IN LOCAL OVERSEAS COMMANDERS TO NEGOTIATE SUCH AGREEMENTS TO REDUCE THE TRAVEL AND TRANSPORTATION BENEFITS SPECIFIED IN THE STANDARD AGREEMENT FORM (DD1617).

SINCE FORMER PEACE CORPS VOLUNTEERS WHO RECEIVE CASH PAYMENTS IN LIEU OF TRANSPORTATION INCIDENT TO THE TERMINATION OF THEIR SERVICES WITH THE CORPS ARE NOT ONE OF THE CLASSES COVERED BY C 4202-3, THEY WOULD, IF OTHERWISE MEETING THE CONDITIONS OF THE REGULATIONS, BE ENTITLED TO RETURN TRAVEL AND TRANSPORTATION COSTS IN ACCORDANCE WITH THE STANDARD AGREEMENT WITHOUT REDUCTION BY THE AMOUNT OF THE CASH PAYMENT IN LIEU OF TRANSPORTATION THEY RECEIVED INCIDENT TO THE TERMINATION OF THEIR SERVICE AS VOLUNTEERS IN THE PEACE CORPS. TO ARRIVE AT A DIFFERENT CONCLUSION WOULD REQUIRE A CHANGE IN THE APPLICABLE REGULATION (C 4202-3).