B-21236, OCTOBER 30, 1941, 21 COMP. GEN. 398

B-21236: Oct 30, 1941

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WHOSE POSITION HAS BEEN ABOLISHED DURING A PERIOD OF FURLOUGH FOR SUCH DUTY BUT WHO IS OFFERED A POSITION OF LIKE SENIORITY. PAY AT A DIFFERENT LOCATION IS REQUIRED TO BEAR THE EXPENSE OF TRAVEL TO SUCH POINT. 1941: I HAVE YOUR LETTER OF OCTOBER 11. THE EMPLOYEE WAS FURLOUGHED FROM HIS CIVIL POSITION OF C.C.C. DISTRICT HAVE BEEN DISBANDED AND AS A RESULT. PAY IS AVAILABLE FOR HIM AT THAT LOCATION. YOUR DECISION IS REQUESTED AS TO WHETHER THE DEPARTMENT MAY AUTHORIZE HIS TRAVEL AT GOVERNMENT EXPENSE TO A DIFFERENT LOCATION. " AND SUBSECTION (C) OF THE SAME SECTION OF THE STATUTE PROVIDES: ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (A) OR (B) OF SUBSECTION (B) SHALL BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF TRAINING AND SERVICE IN THE LAND OR NAVAL FORCES.

B-21236, OCTOBER 30, 1941, 21 COMP. GEN. 398

TRAVELING EXPENSES - RETURN TO CIVILIAN POSITION AFTER MILITARY DUTY AN EMPLOYEE INDUCTED INTO THE MILITARY FORCES UNDER EITHER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 OR PUBLIC RESOLUTION NO. 96 OF AUGUST 27, 1940, WHOSE POSITION HAS BEEN ABOLISHED DURING A PERIOD OF FURLOUGH FOR SUCH DUTY BUT WHO IS OFFERED A POSITION OF LIKE SENIORITY, STATUS, AND PAY AT A DIFFERENT LOCATION IS REQUIRED TO BEAR THE EXPENSE OF TRAVEL TO SUCH POINT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, OCTOBER 30, 1941:

I HAVE YOUR LETTER OF OCTOBER 11, 1941, AS FOLLOWS:

1. THE DEPARTMENT HAS BEEN REQUESTED TO AUTHORIZE TRAVEL AT GOVERNMENT EXPENSE FOR AN EMPLOYEE WHO HAS RETURNED FROM ACTIVE MILITARY DUTY AND MADE APPLICATION FOR REINSTATEMENT TO HIS FORMER POSITION, WHEREIN THE FOLLOWING SITUATION APPLIES.

2. THE EMPLOYEE WAS FURLOUGHED FROM HIS CIVIL POSITION OF C.C.C. COMPANY COMMANDER, SACRAMENTO C.C.C. DISTRICT, ON NOVEMBER 25, 1940, AND HAS RETURNED TO THAT LOCATION AND MET ALL THE REQUIREMENTS FOR REINSTATEMENT. SINCE THAT TIME THE C.C.C. CAMPS UNDER THE SACRAMENTO C.C.C. DISTRICT HAVE BEEN DISBANDED AND AS A RESULT, THE EMPLOYEE'S FORMER POSITION HAS BEEN ABOLISHED, AND NO OTHER POSITION OF LIKE SENIORITY, STATUS, AND PAY IS AVAILABLE FOR HIM AT THAT LOCATION. HE CAN BE ASSIGNED, HOWEVER, TO A POSITION OF LIKE STATUS AND PAY AT A DIFFERENT LOCATION.

3. SINCE THE EMPLOYEE REPORTED BACK TO THE LOCATION OF HIS FORMER POSITION AND HAS MADE APPLICATION FOR REINSTATEMENT THERETO IN GOOD FAITH, YOUR DECISION IS REQUESTED AS TO WHETHER THE DEPARTMENT MAY AUTHORIZE HIS TRAVEL AT GOVERNMENT EXPENSE TO A DIFFERENT LOCATION, TO ENTER ON DUTY FROM A FURLOUGH STATUS.

SECTION 8 (A) AND (B) (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, 54 STAT. 890, PROVIDES THAT AN EMPLOYEE OF THE UNITED STATES, OTHER THAN TEMPORARY, WHO MEETS ALL OF THE CONDITIONS TO ENTITLE HIM TO RESTORATION TO A CIVILIAN POSITION AFTER EXPIRATION OF HIS PERIOD OF ACTIVE MILITARY SERVICE "SHALL BE RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS AND PAY," AND SUBSECTION (C) OF THE SAME SECTION OF THE STATUTE PROVIDES:

ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (A) OR (B) OF SUBSECTION (B) SHALL BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF TRAINING AND SERVICE IN THE LAND OR NAVAL FORCES, SHALL BE SO RESTORED WITHOUT LOSS OF SENIORITY, SHALL BE ENTITLED TO PARTICIPATE IN INSURANCE OR OTHER BENEFITS OFFERED BY THE EMPLOYER PURSUANT TO ESTABLISHED RULES AND PRACTICES RELATING TO EMPLOYEES ON FURLOUGH OR LEAVE OF ABSENCE IN EFFECT WITH THE EMPLOYER AT THE TIME SUCH PERSON WAS INDUCTED INTO SUCH FORCES, AND SHALL NOT BE DISCHARGED FROM SUCH POSITION WITHOUT CAUSE WITHIN ONE YEAR AFTER SUCH RESTORATION. SEE, ALSO, THE CORRESPONDING PROVISION IN PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, 54 STAT. 858, AS AMENDED BY SECTION 8 (D) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, SUPRA.

THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT AND PUBLIC RESOLUTION NO. 96 DO NOT GUARANTEE RESTORATION TO THE SAME POSITION OCCUPIED BY THE EMPLOYEE WHEN HE ENTERED THE ACTIVE MILITARY DUTY, BUT RESTORATION EITHER TO THE SAME POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY. NEITHER DO THE PROVISIONS OF THE STATUTES GUARANTEE RESTORATION TO A POSITION AT THE SAME PLACE THE EMPLOYEE WAS PREVIOUSLY EMPLOYED. THERE IS NOTHING IN THE STATUTES AUTHORIZING THE REIMBURSEMENT OF AN EMPLOYEE OF THE COST OF TRAVELING EXPENSES INCURRED IN RETURNING TO A CIVILIAN POSITION AFTER TERMINATION OF HIS ACTIVE MILITARY SERVICE. SUCH EXPENSES DO NOT CONSTITUTE "BENEFITS OFFERED BY THE EMPLOYER PURSUANT TO THE ESTABLISHED RULES AND PRACTICES RELATING TO EMPLOYEES ON FURLOUGH OR LEAVE OF ABSENCE IN EFFECT WITH THE EMPLOYER AT THE TIME SUCH PERSON WAS INDUCTED INTO SUCH FORCES," QUOTING FROM THE STATUTES, SUPRA. FURTHERMORE, EVEN VIEWING THE MATTER FROM ITS MOST FAVORABLE LIGHT--- NAMELY, AS A TRANSFER--- THERE WOULD BE REQUIRED THE CONSIDERATION OF THE PROVISIONS OF SECTION 301 OF THE ACT APPROVED MAY 31, 1941, PUBLIC LAW 88, 55 STAT. 234, READING AS FOLLOWS (WHICH PROVISIONS LIKEWISE HAVE APPEARED IN PREVIOUS ANNUAL APPROPRIATION ACTS FOR MANY YEARS):

APPROPRIATIONS FOR THE FISCAL YEAR 1942 AVAILABLE FOR EXPENSES OF TRAVEL OF CIVILIAN OFFICERS AND EMPLOYEES OF THE EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS SHALL BE AVAILABLE ALSO FOR EXPENSES OF TRAVEL PERFORMED BY THEM ON TRANSFER FROM ONE OFFICIAL STATION TO ANOTHER WHEN AUTHORIZED BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED IN THE ORDER DIRECTING SUCH TRANSFER: PROVIDED, THAT SUCH EXPENSES SHALL NOT BE ALLOWED FOR ANY TRANSFER EFFECTED FOR THE CONVENIENCE OF ANY OFFICER OR EMPLOYEE. AND IT WILL BE SEEN THAT SAID STATUTE AUTHORIZES PAYMENT OF TRAVELING EXPENSES OF EMPLOYEES OF THE GOVERNMENT ONLY "ON TRANSFER FROM ONE OFFICIAL STATION TO ANOTHER," SUBJECT TO THE CONDITIONS THEREIN STATED.

WHILE IT HAS BEEN HELD THAT THE BENEFITS OF THAT STATUTE ARE APPLICABLE UPON THE RETURN OF AN EMPLOYEE TO ACTIVE DUTY FROM FURLOUGH OR LEAVE OF ABSENCE WITHOUT PAY, IF ALL OF THE CONDITIONS OF THE STATUTE ARE OTHERWISE FULFILLED (DECISION OF OCTOBER 2, 1940, B-12385), IN THE INSTANT CASE THE EMPLOYEE'S OLD POSITION HAD BEEN ABOLISHED WHILE HE WAS ON FURLOUGH OR LEAVE OF ABSENCE WITHOUT PAY AND HE HAD NO OFFICIAL HEADQUARTERS UPON HIS RETURN FROM WHICH HE COULD BE TRANSFERRED OR UPON WHICH THE STATUTE COULD OPERATE. ACCORDINGLY, HIS RESTORATION TO A CIVILIAN POSITION AT ANOTHER LOCATION IS FOR VIEWING AS IN THE NATURE OF A NEW APPOINTMENT THUS CONSTITUTING THE PLACE WHERE HE IS FIRST ASSIGNED FOR DUTY AS HIS FIRST DUTY STATION TO WHICH HE MUST BEAR THE COST OF REPORTING. SEE 20 COMP. GEN. 820, AND DECISIONS THEREIN CITED.

IN THE LIGHT OF THE FOREGOING I AM CONSTRAINED TO HOLD THAT THE EMPLOYEE IS REQUIRED TO BEAR THE EXPENSE OF RETURNING TO ANY CIVILIAN POSITION OF LIKE SENIORITY, STATUS, AND PAY, TO WHICH HE MAY BE RESTORED, IRRESPECTIVE OF THE PLACE WHERE THE DUTIES ARE TO BE PERFORMED.