B-171947.62, NOV 27, 1974

B-171947.62: Nov 27, 1974

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ALTHOUGH AN EMPLOYEE STATIONED IN HAWAII IS ENTITLED TO ROUND TRIP TRAVEL EXPENSES BETWEEN HAWAII AND THE MAINLAND INCIDENT TO RENEWAL AGREEMENT TRAVEL UNDER THE AUTHORITY 5 U.S.C. HE IS NOT ENTITLED TO ANY LEAVE-FREE TRAVEL TIME DURING SUCH ABSENCE FROM DUTY SINCE NO LAW OR REGULATION AUTHORIZES SUCH BENEFIT NOR IS SUCH TRAVEL TIME OFFICIAL DUTY AND ACCORDINGLY SUCH TRAVEL TIME IS FOR CHARGING TO ANNUAL LEAVE FOR DAYS ON WHICH THE EMPLOYEE WOULD OTHERWISE WORK AND RECEIVE PAY EXCLUSIVE OF HOLIDAYS AND NONWORKDAYS ESTABLISHED BY FEDERAL STATUTE. I APPLIED FOR AND WAS AUTHORIZED 22 DAYS ANNUAL LEAVE. ALTHOUGH I ONLY TOOK 16 DAYS ANNUAL LEAVE (29 JUN 72 THRU 21 JUL 72) I HAVE BEEN CHARGED FOR 22 DAYS (29 JUN 72 THRU 31 JUL 72).

B-171947.62, NOV 27, 1974

1. ALTHOUGH AN EMPLOYEE STATIONED IN HAWAII IS ENTITLED TO ROUND TRIP TRAVEL EXPENSES BETWEEN HAWAII AND THE MAINLAND INCIDENT TO RENEWAL AGREEMENT TRAVEL UNDER THE AUTHORITY 5 U.S.C. SEC. 5728(A), HE IS NOT ENTITLED TO ANY LEAVE-FREE TRAVEL TIME DURING SUCH ABSENCE FROM DUTY SINCE NO LAW OR REGULATION AUTHORIZES SUCH BENEFIT NOR IS SUCH TRAVEL TIME OFFICIAL DUTY AND ACCORDINGLY SUCH TRAVEL TIME IS FOR CHARGING TO ANNUAL LEAVE FOR DAYS ON WHICH THE EMPLOYEE WOULD OTHERWISE WORK AND RECEIVE PAY EXCLUSIVE OF HOLIDAYS AND NONWORKDAYS ESTABLISHED BY FEDERAL STATUTE, EXECUTIVE ORDER, OR ADMINISTRATIVE ORDER. SEE ANSWER TO QUESTION 4, 34 COMP. GEN. 328 (1955) AT 330. 2. ALTHOUGH EMPLOYEE REFERS TO "TRAVEL TIME ALLOWANCES FOR THE PERFORMANCE OF OFFICIALLY DIRECTED RENEWAL AGREEMENT TRAVEL" INCIDENT TO HIS CLAIM FOR RESTORATION OF ANNUAL LEAVE CHARGE FOR TRAVEL TIME INVOLVED IN CONNECTION WITH TRAVEL TO AND FROM HAWAII AND MAINLAND BETWEEN TOURS OF DUTY, SUCH TERM HAS NO SEPARATE MEANING FROM THE MEANING OF THE PHRASE "LEAVE-FREE TRAVEL" AS USED IN THE REGULATIONS.

ROBERT G. BRIGGS - RENEWAL AGREEMENT TRAVEL - DEPARTMENT OF THE NAVY: THIS ACTION CONSTITUTES A RECONSIDERATION OF THE DENIAL BY THE DEPARTMENT OF THE NAVY OF MR. ROBERT G. BRIGGS' CLAIM FOR OFFICIAL DUTY TIME FOR THE PERIOD HE TRAVELED TO AND FROM WISCONSIN INCIDENT TO RENEWAL AGREEMENT TRAVEL FOR LEAVE PURPOSES AS AN EMPLOYEE STATIONED IN HAWAII DURING 1972. IN MAKING THIS REVIEW, CORRESPONDENCE FROM MR. BRIGGS DATED DECEMBER 13, 1973, MAY 3, JUNE 21, AND JULY 26, 1974, HAS BEEN CONSIDERED TOGETHER WITH OUT LETTER OF AUGUST 16, 1974, TO HIM ON THE SUBJECT MATTER.

MR. BRIGGS IN HIS CLAIM TO HIS AGENCY ON NOVEMBER 9, 1972, STATED:

"TO OIC NAVEDTRASUPPCENPAC PH DET

"SUBJ ANNUAL LEAVE CHARGE ERROR CORRECTION; REQUEST FOR

"REF: (A) TRAVEL ORDERS 63271-2-T0009 AND 63271-3-T0003

"1. PRIOR TO MY RENEWAL AGREEMENT TRAVEL AUTHORIZED BY REFERENCE (A), I APPLIED FOR AND WAS AUTHORIZED 22 DAYS ANNUAL LEAVE. ALTHOUGH I ONLY TOOK 16 DAYS ANNUAL LEAVE (29 JUN 72 THRU 21 JUL 72) I HAVE BEEN CHARGED FOR 22 DAYS (29 JUN 72 THRU 31 JUL 72). DURING THE PERIOD 24 JUL 72 THRU 31 JUL 72 I WAS PERFORMING OFFICIAL TRAVEL AND SHOULD NOT HAVE BEEN CHARGED ANNUAL LEAVE.

"2. IT IS REQUESTED THAT MY LEAVE RECORD BE CORRECTED TO SHOW THAT I WAS NOT ON ANNUAL LEAVE ON 24 JUL 72 THRU 31 JUL 72 AND THAT 48 HOURS ANNUAL LEAVE BE PUT BACK INTO MY ANNUAL LEAVE ACCOUNT. THANK YOU,

IN SUBSEQUENT CORRESPONDENCE BETWEEN THE PERIOD SEPTEMBER 28, 1973, TO OCTOBER 14, 1974, ADDRESSED DIRECT OR FORWARDED TO OUR OFFICE, MR. BRIGGS REFERS TO HIS CLAIM IN TERMS OF "RENEWAL AGREEMENT TRAVEL TRAVEL TIME ALLOWANCE" OR TRAVEL TIME ALLOWANCES FOR THE PERFORMANCE OF OFFICIALLY DIRECTED RENEWAL AGREEMENT TRAVEL." HE STATES THAT THIS IS SOMETHING ENTIRELY DIFFERENT FROM "FREE TRAVEL TIME" AS SET FORTH IN THE REGULATIONS AND HE UNDERSTANDS THAT HE IS NOT ENTITLED TO PAID "FREE TRAVEL TIME." FOR PURPOSES OF HIS CLAIM WE KNOW OF NO SEPARATE MEANING FOR THE TERMS AS DESCRIBED BY MR. BRIGGS WHICH IS NOT WITHIN THE MEANING OF THE PHRASE "LEAVE-FREE TRAVEL TIME."

FOR THE REASONS SET FORTH BELOW THE 48 HOURS INDICATED IN MR. BRIGGS' CLAIM CHARGED TO HIS ANNUAL LEAVE ACCOUNT IS PROPER. UNDER THE APPLICABLE LAW AND REGULATION HE WAS NOT PERFORMING OFFICIAL TRAVEL IN CONNECTION WITH OFFICIAL DUTY DURING THE 6-DAY PERIOD FROM JULY 24-31, 1972, AND THERE IS NO LEGAL BASIS FOR RECREDITING HIS LEAVE ACCOUNT WITH THE 48 HOURS OF ANNUAL LEAVE AS HE REQUESTED. SEE ANSWER TO QUESTION 4, 34 COMP. GEN. 328 (1955) AT 330.

THE STATUTORY AUTHORITY FOR OVERSEAS TOUR RENEWAL AGREEMENT TRAVEL IS FOUND AT 5 U.S.C. SEC 5728(A) (1970 AND READS AS FOLLOWS:

"SEC 5725. TRAVEL AND TRANSPORTATION EXPENSES; VACATION LEAVE

"(A) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, AN AGENCY SHALL PAY FROM ITS APPROPRIATIONS THE EXPENSES OF ROUNDTRIP 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."

THUS ALTHOUGH EXPENSES OF TRAVEL ARE AUTHORIZED NO PROVISION IS MADE TO MAKE SUCH TIME OFFICIAL DUTY.

THE APPLICABLE REGULATIONS DURING THE PERIOD OF MR. BRIGGS' CLAIM ARE FOUND AT SECTION 1.12 OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A 56, REVISED, EFFECTIVE SEPTEMBER 1, 1971, AND SECTIONS C4150-C4156 OF THE JOINT TRAVEL REGULATIONS (JTR), VOLUME 2. NEITHER 5 U.S.C. SEC. 5728(A) THE APPLICABLE REGULATIONS PROVIDE THAT TIME REQUIRED FOR THE SUBJECT TRAVEL SHALL BE OTHER THAN IN A LEAVE STATUS. IN THIS CONNECTION SECTION C4152-LG, JTR, VOLUME 2, READS:

"G. LEAVE STATUS DURING ABSENCE FROM DUTY. DURING THE PERIOD OF ABSENCE FROM THE OVERSEAS POST OF DUTY UNTIL RETURNED TO DUTY AT THE SAME OR DIFFERENT OVERSEAS POST OF DUTY, THE EMPLOYEE MAY BE ENTITLED TO HOME LEAVE OR LEAVE-FREE TRAVEL TIME, OR MAY BE IN A LEAVE WITH OR WITHOUT PAY STATUS. THE LEAVE REGULATIONS OF THE SEPARATE DEPARTMENTS APPLY (SEE APPENDIX B). CERTAIN LIMITATIONS APPLY TO TEACHERS IN THE DEPARTMENT OF DEFENSE OVERSEAS DEPENDENTS SCHOOL SYSTEM (SEE PAR. C 4156)."

THE ONLY CATEGORY STATED ABOVE IN THE JTR CONSISTENT WITH MR. BRIGGS' CLAIM WOULD BE "LEAVE-FREE TRAVEL TIME." WE STATED IN LETTER DATED AUGUST 16, 1974, TO MR. BRIGGS IN PERTINENT PART AS FOLLOWS:

"THE REFERENCE IN THE JOINT TRAVEL REGULATIONS IS FOR INFORMATION PURPOSES AND THE LEAVE REGULATIONS GOVERN HOW LEAVE IS AFFECTED BY RENEWAL AGREEMENT TRAVEL. ANNUAL LEAVE OF NAVY CIVILIAN PERSONNEL IS CONTROLLED BY ANNUAL AND SICK LEAVE ACT OF 1951, NOW CODIFIED IN 5 U.S.C. 6301-11. IMPLEMENTING REGULATIONS ARE IN FEDERAL PERSONNEL MANUAL (FPM) SUPPLEMENT 990-2, BOOK 630. UNDER THE PROVISIONS OF 5 U.S.C. 6303(D) AND FPM SUPPLEMENT 990-2, BOOK 630, SUBCHAPTER S2-7, NO ANNUAL LEAVE IS CHARGED FOR THE TIME ACTUALLY AND NECESSARILY OCCUPIED IN GOING TO OR FROM A POST OF DUTY AND TIME NECESSARILY OCCUPIED AWAITING TRANSFER, IN THE CASE OF AN EMPLOYEE WHOSE POST OF DUTY IS OUTSIDE THE UNITED STATES AND WHO RETURNS TO THE UNITED STATES. 'UNITED STATES' IS DEFINED IN 5 U.S.C. 6301 (1) AND FPM SUPPLEMENT 990 2, BOOK 630, SUBCHAPTER S2-2A(1), AS 'THE SEVERAL STATES AND THE DISTRICT OF COLUMBIA.' THEREFORE, SINCE HAWAII IS A STATE, IT IS NOT OUTSIDE THE UNITED STATES, AND SECTION 6303(D) DOES NOT PROVIDE LEAVE FREE TRAVEL TIME FROM AND TO HAWAII. IN ABSENCE OF THE SECTION 6303(D) EXCEPTION OR ANY OTHER STATUTORY EXCEPTION, THE GENERAL RULE IN 5 U.S.C. 6302(A) WILL APPLY AND LEAVE SHOULD BE CHARGED FOR DAYS ON WHICH THE EMPLOYEE WOULD OTHERWISE WORK AND RECEIVE PAY EXCLUSIVE OF HOLIDAYS AND NONWORK DAYS ESTABLISHED BY FEDERAL STATUTE, EXECUTIVE ORDER, OR ADMINISTRATIVE ORDER."

SINCE NEITHER THE APPLICABLE LAW NOR REGULATIONS PROVIDE THAT AN EMPLOYEE IS ENTITLED TO LEAVE-FREE TRAVEL TIME IN CONNECTION WITH RENEWAL AGREEMENT TRAVEL BETWEEN HAWAII AND THE MAINLAND, THE AGENCY DENIAL OF MR. BRIGGS' CLAIM IS SUSTAINED.