B-216935, SEP 17, 1985

B-216935, SEP 17, 1985

TRAVEL EXPENSES - OVERSEAS EMPLOYEES - HOME LEAVE - MINIMUM SERVICE REQUIREMENT DIGEST: EMPLOYEES WHO RESIGN BEFORE COMPLETION OF THEIR SECOND 24-MONTH TOUR OF DUTY ABROAD ARE NOT INDEBTED TO THE GOVERNMENT FOR HOME LEAVE GRANTED BASED UPON COMPLETION OF THEIR FIRST 24-MONTH TOUR OF DUTY, BUT USED DURING THEIR SECOND TOUR OF DUTY. SO LONG AS THEY HAVE COMPLETED THE 24- MONTH OF DUTY UPON WHICH THE GRANT OF HOME LEAVE IS BASED, AND RETURN TO SERVICE ABROAD AFTER THE PERIOD OF HOME LEAVE, NO REFUND IS REQUIRED. WHERE THE CIRCUMSTANCES OF A PARTICULAR CASE GIVE RISE TO A GOOD FAITH DOUBT CONCERNING THE EMPLOYEE'S INTENTION TO RETURN TO SERVICE ABROAD, THE MATTER MAY BE REFERRED TO THIS OFFICE.

ANN MCCARTHY - HOME LEAVE - FAILURE TO COMPLETE SECOND TOUR OF DUTY:

THE AGENCY ASKS IF THEY MUST RECOUP HOME LEAVE EARNED DURING AN EMPLOYEE'S FIRST 24-MONTH TOUR OF DUTY WHERE THE EMPLOYEE USED THE HOME LEAVE BUT RESIGNED PRIOR TO COMPLETION OF HER SECOND 24-MONTH TOUR OF DUTY. WE HOLD THAT NO RECOUPMENT IS NECESSARY.

FACTS

THIS IS A REQUEST FOR A DECISION FROM WALTER G. LOBISSER, ASSISTANT FINANCIAL MANAGER, DEPARTMENT OF THE TREASURY, UNITED STATES CUSTOMS SERVICE, BOSTON, MASSACHUSETTS, CONCERNING HOME LEAVE USED BY ANN MCCARTHY.

MS. MCCARTHY WAS ASSIGNED TO THE AGENCY'S PRECLEARANCE STATION IN TORONTO, CANADA, FOR A 2-YEAR TOUR OF DUTY EFFECTIVE ON AUGUST 28, 1981. SHE WAS ENTITLED TO ACCRUE HOME LEAVE AT THE RATE OF 5 DAYS FOR EACH 12 MONTHS OF SERVICE, GIVING A TOTAL OF 10 DAYS FOR HER FIRST TOUR OF DUTY. 5 C.F.R. SEC. 630.604(A)(5) (1984).

HER FIRST TOUR OF DUTY ENDED IN AUGUST 1983. SHE ASKED FOR AND RECEIVED ANOTHER 2-YEAR TOUR OF DUTY WHICH WAS TO END ON AUGUST 25, 1985. NOVEMBER 1983 SHE USED THE 10 DAYS OF HOME LEAVE SHE HAD BEEN GRANTED BASED UPON COMPLETION OF HER FIRST TOUR OF DUTY, AND RETURNED TO SERVICE IN TORONTO. ON AUGUST 4, 1984, APPROXIMATELY 3 WEEKS BEFORE COMPLETION OF THE FIRST YEAR OF HER SECOND TOUR OF DUTY, SHE RESIGNED TO ATTEND SCHOOL.

THE AGENCY REQUESTS A DECISION ON WHETHER MS. MCCARTHY IS INDEBTED TO THE GOVERNMENT FOR THE 10 DAYS OF HOME LEAVE USED IN NOVEMBER 1983 BECAUSE SHE FAILED TO COMPLETE THE FULL 2-YEAR PERIOD OF HER SECOND TOUR OF DUTY. THE AGENCY ALSO REQUESTS THAT WE PROVIDE GUIDANCE ON A SPECIFIC LENGTH OF TIME AN EMPLOYEE MUST RETURN TO SERVICE ABROAD TO AVOID INDEBTEDNESS FOR HOME LEAVE.

OPINION

HOME LEAVE MAY BE GRANTED TO EMPLOYEES WHO COMPLETE 24 MONTHS OF CONTINUOUS SERVICE OUTSIDE THE UNITED STATES AND ARE EXPECTED TO RETURN TO SERVICE OUTSIDE THE UNITED STATES, BASED UPON 5 U.S.C. SEC. 6305(A) (1982). THE IMPLEMENTING REGULATIONS ARE ISSUED BY THE OFFICE OF PERSONNEL MANAGEMENT AND PUBLISHED AT 5 C.F.R. SECS. 630.601-630.607.

AN EMPLOYEE'S ACCRUAL OF HOME LEAVE IS WITHOUT REGARD TO HIS LATER ENTITLEMENT TO BE GRANTED USE OF THAT LEAVE. 52 COMP.GEN. 860 (1973). THAT IS, AN EMPLOYEE MAY BE EARNING HOME LEAVE DURING A TOUR OF DUTY OUTSIDE THE UNITED STATES BUT THERE IS NO ENTITLEMENT TO BE GRANTED USE OF THAT LEAVE UNTIL AT LEAST TWO CONDITIONS ARE SATISFIED. FIRST, THE EMPLOYEE MUST HAVE COMPLETED 24 MONTHS OF CONTINUOUS SERVICE OUTSIDE THE UNITED STATES, AND SECOND, IT MUST BE EXPECTED THAT THE EMPLOYEE WILL RETURN TO SERVICE OUTSIDE THE UNITED STATES AFTER THE PERIOD OF HOME LEAVE. VIRGINIA M. BORZELLERE, B-214066, JUNE 11, 1984; ESTELLE C. MALDONADO, 62 COMP.GEN. 545 (1983); LAMOYNE J. DELILLE, 56 COMP.GEN. 824 (1977).

THERE IS NO REQUIREMENT THAT THE EMPLOYEE ACTUALLY COMPLETE A SECOND 24- MONTH TOUR OF DUTY ABROAD IN ORDER TO AVOID RECOUPMENT OF HOME LEAVE ACCRUED DURING THE FIRST 24-MONTH TOUR OF DUTY. BORZELLERE, SUPRA, AND 5 C.F.R. SEC. 630.606(E).

IN BORZELLERE, SUPRA, WE CONSIDERED A SIMILAR SITUATION. IN THAT CASE, THE EMPLOYEE HAD COMPLETED HER FIRST 24-MONTH TOUR OF DUTY OUTSIDE THE UNITED STATES, USED HER HOME LEAVE, AND RETURNED TO DUTY OUTSIDE THE UNITED STATES FOR 18 MONTHS OF A 24-MONTH TOUR OF DUTY. WE HELD THAT THE EMPLOYEE HAD SATISFIED THE STATUTORY AND REGULATORY REQUIREMENTS AND WAS NOT INDEBTED TO THE GOVERNMENT FOR HOME LEAVE SIMPLY BECAUSE SHE FAILED TO COMPLETE THE ENTIRE PERIOD OF HER SECOND 24-MONTH TOUR OF DUTY ABROAD.

IN THIS CASE, MS. MCCARTHY HAS ALSO MET THE STATUTORY AND REGULATORY REQUIREMENTS AND NO RECOUPMENT OF HOME LEAVE IS REQUIRED. SHE COMPLETED HER FIRST 24-MONTH TOUR OF DUTY, USED THE HOME LEAVE SHE HAD ACCRUED BASED UPON HER FIRST TOUR OF DUTY, AND RETURNED TO SERVICE OUTSIDE THE UNITED STATES FOR A REASONABLE PERIOD, I.E., ALMOST A YEAR. UNDER SUCH CIRCUMSTANCES NO RECOUPMENT IS NECESSARY.

AS LONG AS THE EMPLOYEE RETURNS TO SERVICE OUTSIDE THE UNITED STATES FOR A REASONABLE PERIOD OF TIME, NO RECOUPMENT OF HOME LEAVE IS REQUIRED. THE EVENT AN EMPLOYEE RETURNS TO SERVICE OUTSIDE THE UNITED STATES FOR A PERIOD WHICH IS SO BRIEF AS TO CAST DOUBT ON THE EMPLOYEE'S INTENTION TO RETURN TO SERVICE ABROAD, THE MATTER MAY BE REFERRED TO THIS OFFICE FOR DISPOSITION. BORZELLERE, SUPRA.

IN VIEW OF THE ABOVE, WE HOLD THAT MS. MCCARTHY IS NOT INDEBTED FOR HOME LEAVE USED IN NOVEMBER 1983.