B-171174, DEC. 18, 1970

B-171174: Dec 18, 1970

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THEN HE IS NOT ENTITLED TO RENEWAL LEAVE ALLOWANCE UNDER 5 U.S.C. 5728(A) SINCE TRAVEL AUTHORIZED BY THAT STATUTE IS FOR RETURNING AN OVERSEAS EMPLOYEE TO HIS HOMELAND FOR THE TAKING OF LEAVE AND IS NOT FOR THE MERE STOPPING OFF INCIDENTAL TO ESCORTING ONE'S CHILDREN TO OVERSEAS LOCATION FOR VACATION. SIMONTON AND HIS WIFE WERE AUTHORIZED ROUND TRIP TRAVEL AT GOVERNMENT EXPENSE BETWEEN HONOLULU. SIMONTON WAS DIVORCED IN 1967 AT WHICH TIME THE COURTS DECREED THAT HE WOULD HAVE CUSTODY OF HIS THREE CHILDREN EACH YEAR DURING THE MONTHS SCHOOL WAS OUT. YOU SAY IT IS ASSUMED THAT THE PURPOSE OF MRS. KAZUKO SIMONTON'S TRIP TO DALLAS WAS FOR THE SOLE PURPOSE OF RETURNING THE CHILDREN TO THEIR NATURAL MOTHER.

B-171174, DEC. 18, 1970

RENEWAL TRAVEL - TIME LIMITATION DENIAL OF CLAIM FOR REIMBURSEMENT FOR AIR LINE TICKETS AND PER DIEM FOR TRAVEL PERFORMED BY EMPLOYEE AND HIS FAMILY FOR ROUND TRIP TRAVEL BETWEEN HONOLULU, HAWAII AND DALLAS, TEXAS. WHERE EMPLOYEE RETURNS TO CONTINENTAL U.S. TO PICK UP HIS CHILDREN FOR A PERIOD OF CUSTODY ALLOWED UNDER A DIVORCE DEGREE, AND RETURNS TO CONTINENTAL U.S. FOR THAT REASON ONLY, THEN HE IS NOT ENTITLED TO RENEWAL LEAVE ALLOWANCE UNDER 5 U.S.C. 5728(A) SINCE TRAVEL AUTHORIZED BY THAT STATUTE IS FOR RETURNING AN OVERSEAS EMPLOYEE TO HIS HOMELAND FOR THE TAKING OF LEAVE AND IS NOT FOR THE MERE STOPPING OFF INCIDENTAL TO ESCORTING ONE'S CHILDREN TO OVERSEAS LOCATION FOR VACATION.

TO MR. R. J. SCHULLERY:

THIS REFERS TO YOUR LETTER OF OCTOBER 28, 1970, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT BY THE GOVERNMENT FOR AIRLINE TICKETS VALUED AT $776.27 AND OF CERTIFYING FOR PAYMENT THE ENCLOSED VOUCHER IN THE AMOUNT OF $34.40 IN FAVOR OF MR. GUS SIMONTON COVERING REIMBURSEMENT OF EXPENSES INCURRED INCIDENT TO TRAVEL UNDER THE CIRCUMSTANCES DESCRIBED BELOW.

BY TRAVEL ORDER NO. O-T-FS-125 MR. SIMONTON AND HIS WIFE WERE AUTHORIZED ROUND TRIP TRAVEL AT GOVERNMENT EXPENSE BETWEEN HONOLULU, HAWAII, AND DALLAS, TEXAS, TO BEGIN ON JUNE 1, 1970, FOR THE PURPOSE OF TAKING HOME LEAVE. MR. SIMONTON DEPARTED HONOLULU ON MAY 31, 1970, AND ARRIVED IN DALLAS AT 10:30 A.M. JUNE 1. HE DEPARTED DALLAS FOR RETURN TO HONOLULU AT 12:45 P.M. THE SAME DAY HAVING BEEN IN DALLAS FOR A PERIOD OF ONLY TWO HOURS AND 15 MINUTES.

MR. SIMONTON WAS DIVORCED IN 1967 AT WHICH TIME THE COURTS DECREED THAT HE WOULD HAVE CUSTODY OF HIS THREE CHILDREN EACH YEAR DURING THE MONTHS SCHOOL WAS OUT. THE CHILDREN RESIDED WITH THEIR MOTHER IN DALLAS. MR. SIMONTON EXPLAINED THAT HE USED THE TRAVEL AUTHORIZED UNDER 5 U.S.C. 5728 FOR THE SOLE PURPOSE OF BRINGING HIS CHILDREN TO HAWAII FOR A VACATION.

MRS. KAZUKO SIMONTON, THE PRESENT WIFE OF THE EMPLOYEE, DEPARTED HONOLULU ON JULY 1, 1970, AND ARRIVED IN DALLAS AT 7:20 A.M. JULY 2. SHE DEPARTED DALLAS FOR RETURN TO HONOLULU AT 12:45 P.M. THE SAME DAY AFTER BEING IN DALLAS FOR ONLY FIVE HOURS AND 25 MINUTES. YOU SAY IT IS ASSUMED THAT THE PURPOSE OF MRS. KAZUKO SIMONTON'S TRIP TO DALLAS WAS FOR THE SOLE PURPOSE OF RETURNING THE CHILDREN TO THEIR NATURAL MOTHER.

YOUR DOUBT CONCERNS WHETHER THE CIRCUMSTANCES IN THE CASE ENTITLE THE EMPLOYEE TO TRAVEL AND PER DIEM EXPENSES UNDER THE PROVISIONS OF 5 U.S.C. 5728(A) AS FOLLOWS:

"(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."

YOU ASK TWO SPECIFIC QUESTIONS AS FOLLOWS:

"1. IS MR. SIMONTON ENTITLED TO TRAVEL AT GOVERNMENT EXPENSE FROM HONOLULU TO DALLAS AND RETURN, AND BE REIMBURSED A PER DIEM ALLOWANCE FOR THIS TRAVEL UNDER 5 U.S.C. (5728)?

"2. IF THE ANSWER TO (1) ABOVE IS IN THE NEGATIVE, AND THE NEGATIVE RESPONSE IS BASED ON THE BRIEF TIME PERIOD SPENT IN DALLAS, WHAT WOULD CONSTITUTE A REASONABLE PERIOD IN THE UNITED STATES FOR PURPOSES OF REIMBURSEMENT UNDER (5 U.S.C. 5728)?"

THE TRAVEL AUTHORIZED IN THE ABOVE-CITED STATUTE, FOR THE PURPOSE OF RETURNING AN OVERSEAS EMPLOYEE TO HIS HOMELAND FOR THE TAKING OF LEAVE, REASONABLY MAY NOT BE EXTENDED TO THE MEREST STOPPING OFF INCIDENT TO ESCORTING ONE'S CHILDREN TO AN OVERSEAS LOCATION FOR VACATION PURPOSE AND RETURN. CF. 41 COMP. GEN. 146 (1961). IT IS MANIFEST THAT TRAVEL UNDER THE CIRCUMSTANCES WAS NOT FOR THE PURPOSE OF TAKING LEAVE IN THE CONTINENTAL UNITED STATES.

IN VIEW OF THE RESTRICTION IN THE STATUTE CITED ABOVE, AND ITS OBVIOUS INTENT, NONE OF THE TRAVEL EXPENSES INCURRED IN CONNECTION WITH THE TRIPS IN QUESTION MAY BE PAID BY THE GOVERNMENT. QUESTION NUMBER 1 IS ANSWERED ACCORDINGLY. WE ARE UNABLE TO GIVE A CATEGORICAL ANSWER TO QUESTION NUMBER TWO CONCERNING TIME LIMITATIONS.

HOWEVER, IN THAT CONNECTION SEE THAT PART OF THE DECISION AT 41 COMP. GEN. 146 RELATING TO ADMINISTRATIVE REGULATION OF MINIMUM TIME REQUIREMENTS.

THE VOUCHER WHICH IS RETURNED HEREWITH MAY NOT BE CERTIFIED FOR PAYMENT AND STEPS SHOULD BE TAKEN TO RECOUP INDICATED PAYMENTS FOR AIRLINE TICKETS.