B-173636, DEC 10, 1971

B-173636: Dec 10, 1971

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THAT HIS ACTUAL RESIDENCE IS MANLY. THIS IS IMPLEMENTED BY SECTION 11.3 OF OMB CIR. A- 56 AND DETERMINATION OF ACTUAL RESIDENCE IS PRIMARILY AN ADMINISTRATIVE RESPONSIBILITY. THE FACT THAT CLAIMANT IS A PROPERTY OWNER IN IOWA AND THAT HE USES THAT PLACE AS HIS ADDRESS FOR CERTAIN PURPOSES AFFORDS NO BASIS FOR REVERSING THE ADMINISTRATIVE CONCLUSION THAT SANTA CLARA. WAS HIS ACTUAL RESIDENCE AT THE TIME OF TRANSFER TO FAA. SCHULLERY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 15. HAS BEEN ADMINISTRATIVELY DETERMINED THAT THE EMPLOYEE'S ACTUAL PLACE OF RESIDENCE IS SANTA CLARA. IT IS REPORTED THAT MR. WHEREIN HE STATES THAT HIS ORIGINAL DESIGNATION OF "ACTUAL PLACE OF RESIDENCE" WAS IN ERROR AND THAT HE WISHES THAT HIS PLACE OF RESIDENCE BE CHANGED TO MANLY.

B-173636, DEC 10, 1971

CIVILIAN EMPLOYEE - TRAVEL EXPENSES - HOME LEAVE DECISION CONCERNING CLAIM BY MR. DARYL L. REINDL, AN FAA EMPLOYEE, THAT HIS ACTUAL RESIDENCE IS MANLY, IOWA, NOT SANTA CLARA, CALIF. AS ADMINISTRATIVELY DETERMINED. IN CONNECTION WITH TRAVEL EXPENSES INCURRED INCIDENT TO HOME LEAVE, 5 U.S.C. 7525(A) PROVIDES FOR PAYMENT OF ROUND-TRIP TRAVEL FROM POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO THE PLACE OF HIS (EMPLOYEE'S) ACTUAL RESIDENCE AT THE TIME OF APPOINTMENT OR TRANSFER TO THE POST OF DUTY. THIS IS IMPLEMENTED BY SECTION 11.3 OF OMB CIR. NO. A- 56 AND DETERMINATION OF ACTUAL RESIDENCE IS PRIMARILY AN ADMINISTRATIVE RESPONSIBILITY. THE FACT THAT CLAIMANT IS A PROPERTY OWNER IN IOWA AND THAT HE USES THAT PLACE AS HIS ADDRESS FOR CERTAIN PURPOSES AFFORDS NO BASIS FOR REVERSING THE ADMINISTRATIVE CONCLUSION THAT SANTA CLARA, CALIF., WAS HIS ACTUAL RESIDENCE AT THE TIME OF TRANSFER TO FAA.

TO MR. R. J. SCHULLERY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 15, 1971, WITH ENCLOSURES, REQUESTING A DECISION ON THE CLAIM OF MR. DARYL L. REINDL, AN EMPLOYEE OF THE FEDERAL AVIATION ADMINISTRATION (FAA), FOR TRAVEL EXPENSES INCURRED RELATIVE TO HOME LEAVE (PUBLIC LAW 83-737) FROM HIS PRESENT OFFICIAL STATION, ANCHORAGE, ALASKA.

THE EMPLOYEE CLAIMS MANLY, IOWA, AS HIS ACTUAL PLACE OF RESIDENCE. HAS BEEN ADMINISTRATIVELY DETERMINED THAT THE EMPLOYEE'S ACTUAL PLACE OF RESIDENCE IS SANTA CLARA, CALIFORNIA.

IT IS REPORTED THAT MR. REINDL TRANSFERRED FROM THE DEPARTMENT OF THE AIR FORCE, SUNNYVALE, CALIFORNIA, TO THE FEDERAL AVIATION ADMINISTRATION, FAIRBANKS, ALASKA, EFFECTIVE JUNE 15, 1969. YOU STATE THAT AT THE TIME OF EMPLOYMENT BY FAA, THE EMPLOYEE SIGNED THE APPLICABLE FORM STATING HIS ACTUAL PLACE OF RESIDENCE AS SANTA CLARA, CALIFORNIA. YOU INVITED ATTENTION TO THE EMPLOYEE'S LETTER OF FEBRUARY 9, 1971, TO THE PERSONNEL DIVISION, ALASKAN REGION, WHEREIN HE STATES THAT HIS ORIGINAL DESIGNATION OF "ACTUAL PLACE OF RESIDENCE" WAS IN ERROR AND THAT HE WISHES THAT HIS PLACE OF RESIDENCE BE CHANGED TO MANLY, IOWA.

YOU STATE THAT DEPENDING ON OUR DECISION AS TO THE EMPLOYEE'S ACTUAL PLACE OF RESIDENCE, THE EMPLOYEE'S TRAVEL VOUCHER WILL BE CERTIFIED AND PAID, ON A CONSTRUCTIVE COST BASIS (AIR TRANSPORTATION), FROM ANCHORAGE, ALASKA, TO EITHER SANTA CLARA, CALIFORNIA, OR MANLY, IOWA, AND RETURN.

IN HIS LETTER THE EMPLOYEE CONTENDS THAT HAD HE BEEN AWARE OF SECTION 11 OF THE BUREAU OF THE BUDGET CIRCULAR (NOW OFFICE OF MANAGEMENT AND BUDGET) NO. A-56, BEFORE HE WAS TRANSFERRED TO FAA, HE WOULD HAVE ATTEMPTED TO ESTABLISH THE IOWA RESIDENCE. IN SUPPORT OF HIS CLAIM THAT MANLY, IOWA, WAS HIS ACTUAL RESIDENCE AT THE TIME HE WAS TRANSFERRED TO FAA, THE FOLLOWING IS FURNISHED:

"1. THE FIRST 18 YEARS OF MY LIFE (1939 TO 1957) WERE SPENT ON OUR FARM NEAR MANLY, IOWA.

"2. DURING COLLEGE (1957-1962) MY OFFICIAL RESIDENCE WAS MANLY, IOWA.

"3. THE AIR FORCE RECOGNIZED MY PERMANENT ADDRESS TO BE MANLY, IOWA ('62- '65).

"4. THE EXPENSE FOR MY TEMPORARY MOVE TO CHICAGO, ILL. FROM MANLY, IOWA FOR MY EMPLOYMENT WITH MOORE BUSINESS FORMS, INC. WAS BORNE BY ME. ('65- '67)

"5. THE EXPENSE FOR MY MOVE FROM CHICAGO AND MANLY, IOWA TO SANTA CLARA WAS BORNE BY ME (1967-1969). THIS WAS A CONDITION FOR MY EMPLOYMENT WITH THE AIR FORCE DEPT.

"6. MY PARENTS STILL LIVE ON THE FARM IN IOWA.

"7. I AM DESIGNATED 1/3 OWNER OF THE FARM IN IOWA.

"8. MY LEGAL ACTUAL RESIDENCE ADDRESS FOR THE FOLLOWING ORGANIZATIONS AND INSTITUTIONS IS MANLY, IOWA.

"A. DRAFT BOARD

"B. AIR FORCE RESERVE OFFICERS HEADQUARTERS

"C. COLLEGE

"D. COMMON STOCK IN VARIOUS COMPANIES

"E. LIFE INSURANCE COMPANIES

"F. I OWN ORIGINAL STOCK IN AN IOWA COMPANY BY VIRTUE OF MY OFFICIAL ADDRESS BEING IN IOWA. (THIS WAS A RECENT TRANSACTION)

"9. I HAVE A JOINT BANK ACCOUNT WITH MY FOLKS IN MANLY, IOWA.

"10. I VISIT MY FOLKS ON THE AVERAGE OF 3 TIMES PER YEAR.

"11. I HAVE APPROX. 300 RELATIVES IN OR NEAR MANLY, IOWA.

"12. I HAVE NO NEED TO EVER RETURN TO SANTA CLARA, CALIF."

ON THE BASIS OF THE FACTS PRESENTED IT WAS ADMINISTRATIVELY DETERMINED ON FEBRUARY 23, 1971, THAT MR. REINDL'S ACTUAL PLACE OF RESIDENCE AT THE TIME OF HIS TRANSFER TO FAA WAS SANTA CLARA, CALIFORNIA. AT THE REQUEST OF THE EMPLOYEE, HE WAS AGAIN OFFERED AN OPPORTUNITY TO MEET WITH THE REGIONAL COMMITTEE, ALASKAN REGION, IN CONNECTION WITH HIS REQUEST FOR CHANGE OF HIS ACTUAL RESIDENCE FROM CALIFORNIA TO IOWA. ON MARCH 23, 1971, HE WAS ADVISED BY THE CHIEF PERSONNEL TRAINING DIVISION, ALASKAN REGION, IN PERTINENT PART AS FOLLOWS:

"THE REGIONAL COMMITTEE, COMPOSED OF REPRESENTATIVES FROM LEGAL, ACCOUNTING AND PERSONNEL, MET WITH YOU ON 23 MARCH 1971 TO CONSIDER YOUR REQUEST FOR CHANGING YOUR ACTUAL PLACE OF RESIDENCE FROM CALIFORNIA TO IOWA. THE COMMITTEE APPRECIATES YOUR MEETING WITH US AND DISCUSSING THE FACTS AND CIRCUMSTANCES RELATED TO YOUR REQUEST.

"SANTA CLARA, CALIFORNIA, IS DETERMINED TO BE YOUR ACTUAL PLACE OF RESIDENCE FOR PURPOSES OF PL 737."

THE AUTHORITY FOR THE PAYMENT OF ROUND-TRIP TRAVEL OF EMPLOYEES AND THEIR IMMEDIATE FAMILIES FROM POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO THE PLACE OF ACTUAL RESIDENCE IS CONTAINED IN 5 U.S.C. 7525(A) WHICH PROVIDES 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."

REGULATIONS IMPLEMENTING THE ABOVE LAW PROVIDE IN SECTION 11.3 OF THE ABOVE-MENTIONED CIRCULAR NO. A-56, IN PERTINENT PART THAT "THIS CONCEPT VIEWS RESIDENCE AS THE PLACE OF GENERAL ABODE, MEANING THE 'PRINCIPLE, ACTUAL DWELLING PLACE IN FACT, WITHOUT REGARD TO INTENT.' DETERMINATION OF THE PLACE OF ACTUAL RESIDENCE IS PRIMARILY AN ADMINISTRATIVE RESPONSIBILITY AND THE PLACE CONSTITUTING THE ACTUAL RESIDENCE MUST BE DETERMINED UPON THE FACTUAL CIRCUMSTANCES IN EACH CASE."

UNDER THE ABOVE LAW AND REGULATIONS, THE LOCATION OF THE EMPLOYEE'S PLACE OF ACTUAL RESIDENCE FOR BOTH SEPARATION AND HOME LEAVE TRAVEL PURPOSES IS ESTABLISHED AT THE "TIME" OF THE EMPLOYEE'S APPOINTMENT OR TRANSFER TO THE OVERSEAS POST OF DUTY AND IS NOT AFFECTED BY CHANGES IN THE EMPLOYEE'S INTENTIONS SUBSEQUENT TO THE TIME OF SUCH APPOINTMENT OR TRANSFER. THE LEGISLATIVE HISTORY OF THE ACT DOES NOT REVEAL A CONGRESSIONAL INTENT TO THE CONTRARY. 37 COMP. GEN. 846 (1958).

THE RESPONSIBILITY FOR THE DETERMINATION OF THE ACTUAL RESIDENCE OF AN EMPLOYEE IS PRIMARILY AN ADMINISTRATIVE ONE. THE CITED LAW DOES NOT PRECLUDE CORRECTION OF ERRORS WHEN IT LATER SHOWS CLEARLY THAT, IN FACT, THE PLACE OF ACTUAL RESIDENCE WAS OTHER THAN THE PLACE NAMED IN THE EMPLOYMENT PAPERS. IN THIS CONNECTION, THE REGIONAL COMMITTEE, ALASKAN REGION, GAVE MR. REINDL AN OPPORTUNITY TO PRODUCE ADDITIONAL EVIDENCE TO SUPPORT HIS REQUEST FOR CHANGING HIS ACTUAL PLACE OF RESIDENCE. HE WAS UNABLE TO SATISFY THE COMMITTEE AND A DETERMINATION WAS MADE THAT SANTA CLARA WAS HIS ACTUAL PLACE OF RESIDENCE AT THE TIME OF TRANSFER. THE FACT THAT HE WAS UNAWARE OF THE LAW AND THE REGULATIONS AFFORDS NO BASIS FOR AUTHORIZING PAYMENT OF HIS CLAIM. ALSO, THE FACT THAT HE HAS AN INTEREST IN PROPERTY AT MANLY, IOWA, AND THAT HE USES THAT PLACE AS HIS ADDRESS FOR CERTAIN PURPOSES AFFORDS NO BASIS FOR CONCLUDING THAT IOWA WAS HIS ACTUAL PLACE OF RESIDENCE AT THE TIME OF HIS TRANSFER.

ON THE RECORD BEFORE US WE FIND NO BASIS FOR DISAGREEING WITH THE ADMINISTRATIVE DETERMINATION THAT SANTA CLARA, CALIFORNIA, WAS HIS ACTUAL PLACE OF RESIDENCE AT THE TIME OF HIS TRANSFER TO FAA. THE TRAVEL VOUCHER SHOULD BE CERTIFIED FOR PAYMENT ON THAT BASIS.