B-240143, Jul 22, 1991

B-240143, Jul 22, 1991

CIVILIAN PERSONNEL - Travel - Overseas travel - Tour renewal travel - Dependents DIGEST: An employee stationed in Alaska, obtained a divorce from his wife, an employee of another agency. His former wife then left Alaska, but their children remained in Alaska with the employee. Several years later, his former wife retransferred to Alaska and moved into the residence of the employee and their children. The employee thereafter claimed and was paid tour renewal agreement travel benefits on behalf of the children. The agency questions his entitlement to be paid for the children's travel because the former wife may have also received tour renewal travel allowances for the children. However, in the absence of evidence of actual duplication, the employee is entitled to the payments he received because the children were members of his household for tour renewal agreement travel purposes.

Alan B. Carlson - Tour Renewal Travel Benefits for Children - Divorced Parents - Members of Household:

This decision is in response to a request from the Chief, Financial and Support Services Division, Minerals Management Service (MMS), Department of the Interior. /1/ The question asked is whether an employee of the MMS, who was divorced from another federal employee, may receive overseas tour renewal travel allowances on behalf of their children while he was divorced. We conclude that the MMS employee was entitled to receive the allowances, for the following reasons.

BACKGROUND

Mr. Alan B. Carlson, an employee of the MMS stationed in Anchorage, Alaska, was married to Beverlee Carlson, an employee of the Department of Health and Human Services (HHS), also stationed in Anchorage, Alaska. Their tours of duty with their respective agencies in Alaska began in 1973. In January 1978, they were divorced and Mrs. Carlson moved to California and continued her employment with HHS. Although they were awarded joint custody, the three children remained in Alaska with Mr. Carlson.

In 1980, Mrs. Carlson was retransferred to Anchorage, Alaska, by the HHS. Upon her return to Anchorage, she moved into the residence of her former husband and their children. Beginning in May 1983, until they remarried in December 1989, Mr. Carlson claimed and was paid tour renewal agreement travel benefits on behalf of their unmarried and underaged children each time he performed that travel accompanied by the children.

Subsequently, the MMS, upon discovering that Mrs. Carlson might have also been paid travel benefits on behalf of the children, asked HHS to investigate Mrs. Carlson's travel. The HHS found that most of her records had been destroyed, but HHS identified one instance in 1988 when two of the children performed tour renewal travel with Mrs. Carlson. The HHS obtained a refund of the benefits paid Mrs. Carlson for that travel by the children.

The MMS, believing that other duplicate benefits were paid, seeks reimbursement from Mr. Carlson for tour renewal agreement travel benefits paid him for the children from 1980 until 1989. The agency argues that the Carlson children could not simultaneously qualify as members of the household of both Mr. Carlson and that of his former spouse for tour renewal agreement travel entitlement purposes during the period of the divorce. Since they shared a common residence with their dependent children during that period, the MMS considers the arrangement subject to section 302-1.13(c)(1) of the Federal Travel Regulation, /2/ which prohibits duplication of benefits for children by a husband and wife who separately hold tour renewal agreement travel rights as federal employees. Accordingly, MMS recommends that we uphold its decision to require Mr. Carlson to reimburse MMS for duplicate tour renewal allowances paid for his children.

OPINION

The applicable provisions of law governing tour renewal agreement travel for the employee and his immediate family are found in 5 U.S.C. Sec. 5728 (1976). Since both Mr. and Mrs. Carlson have been stationed in Alaska since 1980, the provisions which apply to them were those in effect on September 8, 1982. Those provisions authorize round-trip vacation travel to the employee's actual residence in the continental United States each time the employee satisfactorily completes a 2-year tour of duty at the same or another overseas location. See 41 C.F.R. Sec. 302-1.13(a)(2) (1990).

The governing regulations are those now contained in section 302 1.13 of the Federal Travel Regulation (FTR). /3/ Under those provisions, where the employee is qualified for tour renewal travel, the employee and the members of his/her immediate family may perform round-trip travel at government expense. The term "immediate family" is defined in section 302 -1.4(e) of the FTR to include the employee's unmarried children under 21 years of age who are members of the employee's household at the time he/she performs authorized tour renewal agreement travel.

The FTR, however, limits tour renewal travel rights if husband and wife are both employed in the immediate geographic area by the same or different agencies. In that situation, the regulations provide that "... other members of the immediate family shall not receive duplicate allowances because of the fact that both husband and wife are employees." FTR, Sec. 302-1.13(c)(1). /4/

The MMS argues that, regardless of marital status and custody arrangement, the children should not receive duplicate tour renewal travel benefits. We agree. Although the FTR limitation specifically refers only to married employees, we believe the intent of the regulation is likewise to prevent duplicate payments for children's tour renewal travel to unmarried employees who share a common household.

Nevertheless, we do not believe the record in this case establishes that there were duplicate payments made for the children's travel, except for the one instance in 1988 for which a refund has already been paid. Further, the available evidence in the record suggests that the children were part of a household maintained by Mr. Carlson throughout the period in question. In the absence of any documented evidence that the two employees received duplicate benefits for their children, we conclude that Mr. Carlson was entitled to receive tour renewal payments for his children's travel.

Accordingly, we do not agree that MMS may require Mr. Carlson to refund the tour renewal payments made to him for his children.

/1/ Mr. Joseph T. Adams.

/2/ 41 C.F.R. Sec. 302-1.13(c)(1) (May 10, 1989). During the period of the claim, that provision is found in FTR, para. 2 1.5h(3)(a), incorp. ref., 41 C.F.R. Sec. 101-7.003 (1988).

/3/ Supra, footnote 2.

/4/ Supra, footnote 2.