B-183205, MAY 15, 1975

B-183205: May 15, 1975

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BE AMENDED TO PROVIDE FOR PAYMENT INCIDENT TO ADVANCE RETURN OF DEPENDENTS OF OVERSEAS EMPLOYEES WHEN THEIR PRESENCE OVERSEAS IS EMBARRASSING TO THE UNITED STATES. NO AMENDMENT IS NECESSARY IF EMPLOYEE SEEKS SUCH RETURN AS SITUATION IS COVERED BY 5 U.S.C. 5729(A)(2) PERMITTING IMMEDIATE PAYMENT WHEN EMPLOYEE HAS COMPELLING PERSONAL REASONS OF A HUMANITARIAN OR COMPASSIONATE NATURE SUCH AS OBLIGATIONS IMPOSED BY AUTHORITY OR CIRCUMSTANCES OVER WHICH THE INDIVIDUAL HAS NO CONTROL. 2. JTR OR TO FEDERAL TRAVEL REGULATIONS IS PERMISSIBLE TO AUTHORIZE INVOLUNTARY RETURN OF OVERSEAS EMPLOYEE'S DEPENDENTS BECAUSE THEIR PRESENCE IS EMBARRASSING TO UNITED STATES. THE QUESTION OF THE PROPRIETY OF SUCH AN AMENDMENT HAS BEEN SUBMITTED SINCE THERE IS DOUBT AS TO WHETHER THE PROPOSED REGULATION IS WITHIN THE SCOPE OR INTENT OF THE FEDERAL TRAVEL REGULATIONS (FPMR 101-7) (MAY 1973) (FTR).

B-183205, MAY 15, 1975

1. THE EIGHTH UNITED STATES ARMY, KOREA, HAS PROPOSED THAT VOLUME 2, JTR, BE AMENDED TO PROVIDE FOR PAYMENT INCIDENT TO ADVANCE RETURN OF DEPENDENTS OF OVERSEAS EMPLOYEES WHEN THEIR PRESENCE OVERSEAS IS EMBARRASSING TO THE UNITED STATES, ETC. NO AMENDMENT IS NECESSARY IF EMPLOYEE SEEKS SUCH RETURN AS SITUATION IS COVERED BY 5 U.S.C. 5729(A)(2) PERMITTING IMMEDIATE PAYMENT WHEN EMPLOYEE HAS COMPELLING PERSONAL REASONS OF A HUMANITARIAN OR COMPASSIONATE NATURE SUCH AS OBLIGATIONS IMPOSED BY AUTHORITY OR CIRCUMSTANCES OVER WHICH THE INDIVIDUAL HAS NO CONTROL. 2. NO REGULATORY AMENDMENT TO VOLUME 2, JTR OR TO FEDERAL TRAVEL REGULATIONS IS PERMISSIBLE TO AUTHORIZE INVOLUNTARY RETURN OF OVERSEAS EMPLOYEE'S DEPENDENTS BECAUSE THEIR PRESENCE IS EMBARRASSING TO UNITED STATES, OR FOR OTHER REASON, IN ABSENCE OF SPECIFIC LEGISLATIVE AMENDMENT.

ADVANCE RETURN OF DEPENDENTS OF OVERSEAS CIVILIAN EMPLOYEES:

THE EIGHT UNITED STATES ARMY, KOREA, HAS REQUESTED AN AMENDMENT TO VOLUME 2 OF THE JOINT TRAVEL REGULATIONS (JTR) TO PROVIDE AUTHORITY FOR THE ADVANCE RETURN OF DEPENDENTS OF CIVILIAN EMPLOYEES FROM POSTS OF DUTY OUTSIDE THE UNITED STATES UNDER THE SAME CIRCUMSTANCES AS STATED IN 1 JTR PARA. M7102 (CHANGE 259, SEPTEMBER 1, 1974) FOR MILITARY DEPENDENTS. THE QUESTION OF THE PROPRIETY OF SUCH AN AMENDMENT HAS BEEN SUBMITTED SINCE THERE IS DOUBT AS TO WHETHER THE PROPOSED REGULATION IS WITHIN THE SCOPE OR INTENT OF THE FEDERAL TRAVEL REGULATIONS (FPMR 101-7) (MAY 1973) (FTR). IF OUR DECISION IS THAT VOLUME 2, JTR, MAY NOT BE AMENDED UNDER THE PROVISIONS OF FTR, WE ARE REQUESTED TO DETERMINE WHETHER FTR MAY BE REVISED TO PROVIDE FOR THE ADVANCE RETURN OF DEPENDENTS UNDER THE CONDITIONS SPECIFIED IN 1 JTR.

THE PROVISIONS OF PARA. M7102 (CHANGE 265, MARCH 1, 1975) READ AS FOLLOWS:

"M7102 TRANSPORTATION OF DEPENDENTS INCIDENT TO UNUSUAL OR EMERGENCY CIRCUMSTANCES - OFFICIAL SITUATIONS

"WHEN A DEPENDENT BECOMES INVOLVED IN AN INCIDENT WHICH:

"1. IS EMBARRASSING TO THE UNITED STATES GOVERNMENT;

"2. IS PREJUDICIAL TO ORDER, MORALE, AND DISCIPLINE IN THE COMMAND; OR

"3. GIVES RISE TO CONDITIONS WHERE THE SAFETY TO DEPENDENTS NO LONGER CAN BE INSURED BECAUSE OF ADVERSE PUBLIC FEELING IN THE AREA."

THESE PROVISIONS APPLY TO DEPENDENTS OF MILITARY PERSONNEL ONLY. THE QUESTION PRESENTED, THEREFORE, IS WHETHER VOLUME 2 OF JTR MAY BE AMENDED TO PROVIDE FOR THE ADVANCE RETURN OF DEPENDENTS OF CIVILIAN EMPLOYEES INCIDENT TO UNUSUAL OR EMERGENCY CIRCUMSTANCES WHEN IT IS IN THE INTEREST OF THE GOVERNMENT, RATHER THAN SOLELY IN THE INTEREST OF AN EMPLOYEE AND/OR HIS DEPENDENTS).

SECTION 5729 OF TITLE 5, U.S.C. (1970), IS THE BASIC STATUTORY PROVISION AUTHORIZING ADVANCE RETURN OF THE DEPENDENTS OF CIVILIAN EMPLOYEES OTHER THAN THOSE IN THE FOREIGN SERVICE FROM OVERSEAS POSTS OF DUTY. THAT SECTION PROVIDES, IN PART, AS FOLLOWS:

"SEC. 5729. TRANSPORTATION EXPENSES; PRIOR RETURN OF FAMILY

"(A) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, AN AGENCY SHALL PAY FROM ITS APPROPRIATIONS, NOT MORE THAN ONCE BEFORE THE RETURN TO THE UNITED STATES OR ITS TERRITORIES OR POSSESSIONS OF AN EMPLOYEE WHOSE POST OF DUTY IS OUTSIDE THE CONTINENTAL UNITED STATES, THE EXPENSES OF TRANSPORTING HIS IMMEDIATE FAMILY AND OF SHIPPING HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS FROM HIS POST OF DUTY TO HIS ACTUAL PLACE OF RESIDENCE WHEN -

"(1) HE HAS ACQUIRED ELIGIBILITY FOR THAT TRANSPORTATION; OR

"(2) THE PUBLIC INTEREST REQUIRES THE RETURN OF THE IMMEDIATE FAMILY FOR COMPELLING PERSONAL REASONS OF A HUMANITARIAN OR COMPASSIONATE NATURE, SUCH AS MAY INVOLVE PHYSICAL OR MENTAL HEALTH, DEATH OF A MEMBER OF THE IMMEDIATE FAMILY, OR OBLIGATION IMPOSED BY AUTHORITY OR CIRCUMSTANCES OVER WHICH THE INDIVIDUAL HAS NO CONTROL.

"(B) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, AN AGENCY SHALL REIMBURSE FROM ITS APPROPRIATIONS AN EMPLOYEE WHOSE POST OF DUTY IS OUTSIDE THE CONTINENTAL UNITED STATES FOR THE PROPER TRANSPORTATION EXPENSES OF RETURNING HIS IMMEDIATE FAMILY AND HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS TO THE UNITED STATES OR ITS TERRITORIES OR POSSESSIONS, WHEN -

"(1) THEIR RETURN WAS MADE AT THE EXPENSE OF THE EMPLOYEE BEFORE HIS RETURN AND FOR OTHER THAN REASONS OF PUBLIC INTEREST; AND

"(2) HE ACQUIRES ELIGIBILITY FOR THOSE TRANSPORTATION EXPENSES."

REGULATIONS PROMULGATED BY THE ADMINISTRATOR OF GENERAL SERVICES OF THE GENERAL SERVICES ADMINISTRATION, TO IMPLEMENT THE ABOVE-CITED STATUTE ARE CONTAINED IN FTR PARA. 2-1.5G(5) (MAY 1, 1973). BASICALLY, THEY PROVIDE FOR PAYMENT BY THE GOVERNMENT OF RETURN TRANSPORTATION EXPENSES FOR MEMBERS OF AN EMPLOYEE'S FAMILY UNDER THREE CIRCUMSTANCES. THE FIRST, AUTHORIZES PAYMENT ONLY AFTER THE EMPLOYEE HAS COMPLETED AN AGREED PERIOD OF SERVICE. FTR PARA. 2-1.5G(5)(A). THE SECOND PROVISION (FTR PARA. 2- 1.5G(5)(B)) PERMITS IMMEDIATE PAYMENT OF SUCH EXPENSES "FOR COMPELLING PERSONAL REASONS" OF A HUMANITARIAN OR COMPASSIONATE NATURE EVEN BEFORE AN EMPLOYEE HAS COMPLETED THE PERIOD OF SERVICE REQUIRED TO BECOME ELIGIBLE FOR RETURN TRANSPORTATION. THIRD, FTR PARA. 2-1.5G(5)(F) AUTHORIZES THE GOVERNMENT TO REIMBURSE AN EMPLOYEE WHEN HE BECOMES ELIGIBLE FOR SUCH TRANSPORTATION FOR EXPENSES HE HAS INCURRED IF HE CHOSE TO RETURN HIS FAMILY BEFORE HE WAS ELIGIBLE FOR SUCH TRANSPORTATION COSTS, REGARDLESS OF THE REASON FOR THE RETURN. THESE REGULATIONS MERELY RESTATE AND IMPLEMENT THE STATUTORY AUTHORITY CONTAINED IN 5 U.S.C. 5729, SUPRA.

SUBSECTION 5729(A)(2) APPEARS TO BE DIRECTLY RELEVANT TO THE SITUATION IN QUESTION. IT AUTHORIZES IMMEDIATE PAYMENT OF THE EXPENSES OF TRANSPORTATION OF AN EMPLOYEE'S DEPENDENTS FROM OVERSEAS TO THE CONTINENTAL UNITED STATES PRIOR TO THE TIME THE EMPLOYEE ACQUIRES ELIGIBILITY FOR SUCH EXPENSES WHEN THE RETURN IS IN THE PUBLIC INTEREST AND INVOLVES "COMPELLING PERSONAL REASONS OF A HUMANITARIAN OR COMPASSIONATE NATURE." AMONG THE EXAMPLES GIVEN OF SUCH ELIGIBLE "PERSONAL REASONS" ARE "OBLIGATIONS INPOSED BY AUTHORITY" OR "CIRCUMSTANCES OVER WHICH THE INDIVIDUAL HAS NO CONTROL." EITHER OF THESE EXAMPLES APPEAR TO FIT THE SITUATION DESCRIBED BY THE EIGHTH UNITED STATES ARMY IN WHICH THE EMPLOYEE SEEKS THE EARLY RETURN OF HIS DEPENDENT BECAUSE HIS CONTINUED PRESENCE ABROAD IS AN EMBARRASSMENT TO THE UNITED STATES AND TO THE EMPLOYEE, OR THE DEPENDENT'S SAFETY IS JEOPARDIZED BECAUSE OF HIS MISCONDUCT, ETC.

NOTHING STATED ABOVE SHOULD BE CONSTRUED TO AUTHORIZE PAYMENT OF EXPENSES FOR THE IMMEDIATE RETURN OF DEPENDENTS WHOSE RETURN HAS NOT BEEN SOUGHT BY THE EMPLOYEE OR TO AUTHORIZE THE COMPULSORY RETURN OF DEPENDENTS AGAINST THE WISHES OF THE EMPLOYEE. THE PROVISION IN QUESTION WAS DERIVED FROM THE ACT OF AUGUST 31, 1954, CH. 1155, 68 STAT. 1008. WE HAVE EXAMINED THE LEGISLATIVE HISTORY OF THAT ACT BUT HAVE NOT FOUND ANY LEGISLATIVE INTENT THAT THE ACT WAS MEANT TO OPERATE EXCEPT WHEN AN EMPLOYEE HAS ACCEPTABLE "COMPELLING PERSONAL REASONS."

ACCORDINGLY, WE ARE OF THE OPINION THAT ON THE BASIS OF THE PRESENT LAW, NEITHER VOLUME 2, JTR NOR THE FTR MAY BE AMENDED TO PROVIDE FOR PAYMENT OF EXPENSES FOR THE ADVANCE RETURN OF AN EMPLOYEE'S DEPENDENTS BECAUSE OF SUCH DEPENDENT'S MISCONDUCT OR FOR ANY OTHER REASON WHEN SUCH RETURN HAS NOT BEEN REQUESTED BY THE EMPLOYEE FOR HIS OWN "PERSONAL REASONS" OR WHEN HE DOES NOT CONCUR IN SUCH RETURN. SUCH A CHANGE IN POLICY IS TOO DRASTIC TO BE ACHIEVED BY REGULATORY CHANGE IN THE ABSENCE OF SPECIFIC LEGISLATIVE AUTHORITY.

IF, ON THE OTHER HAND THE EIGHTH UNITED STATES ARMY MERELY SEEKS AUTHORITY TO PAY IMMEDIATE EXPENSES OF A DEPENDENT'S RETURN UNDER THE CIRCUMSTANCES DESCRIBED ABOVE WHEN THE EMPLOYEE REQUESTS SUCH RETURN, WE ARE OF THE OPINION THAT NO REGULATORY CHANGE IS NECESSARY SINCE THE SITUATION IS COVERED BY 5 U.S.C. 5729(A)(2), SUPRA. ..END :