B-54669, MARCH 26, 1946, 25 COMP. GEN. 673

B-54669, MARCH 26, 1946, 25 COMP. GEN. 673

TRANSPORTATION - DEPENDENTS - TO AND FROM FOREIGN DUTY POSTS UNDER THE PROVISIONS OF THE NAVAL APPROPRIATION ACT, 1946, AUTHORIZING THE "TRAVEL OF DEPENDENTS OF EMPLOYEES TO AND FROM NAVY YARDS OR STATIONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED TES," TRANSPORTATION OF THE DEPENDENTS OF MILITARY AND NAVAL PERSONNEL ON FOREIGN SHORE DUTY WHO WERE DEMOBILIZED ABROAD IN ORDER TO ACCEPT CIVILIAN EMPLOYMENT WITH THE NAVY DEPARTMENT MAY BE AUTHORIZED TO THE DUTY STATION ABROAD AND RETURN UPON THE TERMINATION OF THE EMPLOYMENT OF SUCH PERSONNEL. WHERE THE SERVICES OF PERSONS WHO WERE TRANSPORTED AT GOVERNMENT EXPENSE FROM THE UNITED STATES TO FOREIGN STATIONS UNDER CONTRACTS WITH A GOVERNMENT AGENCY OR A GOVERNMENT CONTRACTOR PROVIDING FOR RETURN TRANSPORTATION TO THE UNITED STATES SUBSEQUENTLY WERE UTILIZED ABROAD BY THE NAVY DEPARTMENT, THE TRANSPORTATION OF THEIR DEPENDENTS TO THE DUTY STATION ABROAD AND RETURN UPON THE TERMINATION OF THE NAVY EMPLOYMENT MAY BE AUTHORIZED AT GOVERNMENT EXPENSE PURSUANT TO AUTHORITY IN THE NAVAL APPROPRIATION ACT, 1946, FOR "TRAVEL OF DEPENDENTS OF EMPLOYEES TO AND FROM NAVY YARDS AND STATIONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES.' THE RETURN TRANSPORTATION TO THE UNITED STATES AT GOVERNMENT EXPENSE OF DEPENDENTS OF MILITARY AND NAVAL PERSONNEL ON FOREIGN SHORE DUTY WHO WERE ABROAD AT THE TIME SUCH PERSONNEL WERE DEMOBILIZED ABROAD IN ORDER TO ACCEPT CIVILIAN EMPLOYMENT WITH THE NAVY DEPARTMENT AND WHO OTHERWISE ARE ENTITLED--- EITHER MEDIATELY OR IMMEDIATELY--- TO RETURN AT GOVERNMENT EXPENSE MAY BE AUTHORIZED UNDER THE PROVISIONS OF THE NAVAL APPROPRIATION ACT, 1946, FOR "TRAVEL OF DEPENDENTS OF EMPLOYEES TO AND FROM NAVY YARDS OR STATIONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES," UPON THE TERMINATION OF SUCH CIVILIAN EMPLOYMENT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, MARCH 26, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 13, 1946, REFERENCE JAG:II:RT:MH, AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION NO. B-54669 OF JANUARY 3, 1946, TO THE SECRETARY OF THE NAVY, WHEREIN IT WAS HELD THAT MILITARY PERSONNEL WHO ARE ENTITLED TO RETURN TRANSPORTATION TO THE UNITED STATES FOR DEMOBILIZATION BUT WHO ARE DEMOBILIZED ABROAD IN ORDER TO ACCEPT CIVIL EMPLOYMENT WITH THE NAVY ABROAD, UPON THE TERMINATION OF SUCH CIVIL EMPLOYMENT MAY BE RETURNED TO THE UNITED STATES AT THE EXPENSE OF THE NAVY DEPARTMENT.

YOUR DECISION IS REQUESTED ON THE FOLLOWING ADDITIONAL QUESTIONS IN CONNECTION WITH THE DECISION CITED ABOVE:

(A) MAY THE NAVY DEPARTMENT, AT THE TIME THE EMPLOYEE IS PLACED UNDER AN EMPLOYMENT AGREEMENT, AUTHORIZE THE TRANSPORTATION OF HIS DEPENDENTS TO THE DUTY STATION ABROAD, AND PROVIDE FOR THE RETURN TRANSPORTATION OF SUCH DEPENDENTS AT THE TIME THE CONTRACT IS COMPLETED?

(B) MAY THE NAVY DEPARTMENT PAY FOR THE RETURN TRANSPORTATION OF DEPENDENTS OF SUCH EMPLOYEES TO THE UNITED STATES UPON COMPLETION OF THE EMPLOYEE'S TOUR OF DUTY IF SAID DEPENDENTS ARE ALREADY OVERSEAS?

(C) IF THE FOREGOING IS POSSIBLE, MAY THE SAME PROVISIONS APPLY TO DEPENDENTS OF THOSE EMPLOYEES WHO ARE SENT TO OVERSEAS STATIONS UNDER CONTRACT WITH OTHER GOVERNMENT AGENCIES OR WITH A GOVERNMENT CONTRACTOR (SUCH CONTRACTS PROVIDING FOR RETURN TRANSPORTATION TO THE UNITED STATES) AND WHO ARE SUBSEQUENTLY EMPLOYED BY THE NAVY DEPARTMENT OVERSEAS AND FURNISHED RETURN TRANSPORTATION TO THE UNITED STATES IN ACCORDANCE COMP. GEN. DECISION B37105 OF 18 OCTOBER 1943?

IT IS UNDERSTOOD THAT THE EMPLOYMENT AGREEMENTS CONTEMPLATE ASSIGNMENTS TO DUTY ABROAD FOR INDEFINITE PERIODS, AND THE RIGHTS OF THE PERSONNEL WILL BE DETERMINED ACCORDINGLY.

SECTION 1 OF THE ACT OF APRIL 9, 1943, 57 STAT. 61, PROVIDES AS FOLLOWS:

THAT THE SECRETARY OF THE NAVY IS HEREBY AUTHORIZED TO PAY THE COSTS OF TRANSPORTATION OF CIVILIAN EMPLOYEES TO PLACES OF DUTY IN THE NAVAL ESTABLISHMENT OUTSIDE THE CONTINENTAL UNITED STATES, OR IN ALASKA, AND RETURN, UPON RELIEF THEREFROM, TO THE PLACES AT WHICH THEY WERE ENGAGED OR FROM WHICH THEY WERE TRANSFERRED FOR SUCH DUTY: PROVIDED, THAT NOTHING HEREIN SHALL BE CONSTRUED AS AUTHORIZING THE SECRETARY OF THE NAVY TO TRANSFER SUCH EMPLOYEES FROM ONE STATION TO ANOTHER WITHOUT THEIR CONSENT.

IN THE REFERRED TO DECISION OF JANUARY 3, 1946, B-54669, 25 COMP. GEN. 480, TO YOU, IT WAS HELD THAT THE PROVISIONS OF THE QUOTED SECTION FOR PAYMENT OF TRANSPORTATION OF CIVILIAN EMPLOYEES OF THE NAVY DEPARTMENT WERE NOT LIMITED TO PERSONS WHOSE ORIGINAL TRANSPORTATION TO DUTY STATION OUTSIDE THE UNITED STATES WAS UNDER THAT SECTION BUT THAT, IRRESPECTIVE OF WHETHER THEY WERE CIVILIAN EMPLOYEES OF THE GOVERNMENT PRIOR TO THEIR ENTRY INTO THE ARMED FORCES, MILITARY PERSONNEL WHO ARE DEMOBILIZED ABROAD IN ORDER TO ACCEPT CIVILIAN EMPLOYMENT WITH THE NAVY DEPARTMENT MAY BE FURNISHED RETURN TRANSPORTATION TO THE UNITED STATES UPON TERMINATION OF SUCH CIVILIAN EMPLOYMENT--- THE GOVERNMENT, IN ANY EVENT, BEING OBLIGATED AT THE TERMINATION OF THEIR MILITARY SERVICE TO RETURN THEM TO THE UNITED STATES. THAT IS TO SAY, WHILE THE 1943 STATUTORY PROVISION FOR THE RETURN OF THE DEPARTMENT'S EMPLOYEES WAS COUPLED WITH THE AUTHORITY TO PAY FOR THE OUTWARD JOURNEY IN ORDER TO LIMIT THE RIGHT OF RETURN TO THOSE PERSONS WHO WENT OUT AT GOVERNMENT EXPENSE WITH THE CONTEMPLATION OF RETURN UPON COMPLETION OF THE INVOLVED PROJECT, IT WAS NOT CONSIDERED MATERIAL TO THAT PURPOSE WHETHER THE EMPLOYEES WHO WERE BEING RETURNED ORIGINALLY WERE TAKEN TO THE WORK SITE UNDER THAT PARTICULAR STATUTORY PROVISION, AND THAT, SINCE NO SUCH LIMITATION WAS EXPRESSLY STATED, IT WOULD NOT BE IMPLIED.

IN DECISION OF OCTOBER 18, 1943, B-37105, 23 COMP. GEN. 280, IT WAS HELD IN MATERIAL PART (QUOTING FROM THE SYLLABUS):

THE PROVISIONS OF (SECTION 3 (A) OF) THE ACT OF JUNE 5, 1942, (56 STAT. 314) WHICH AUTHORIZE THE SECRETARY OF WAR TO PAY THE COSTS OF TRANSPORTATION OF CIVILIAN EMPLOYEES TO FOREIGN DUTY STATIONS AND RETURN TO THE UNITED STATES UPON RELIEF THEREFROM, ARE NOT LIMITED TO THOSE PERSONS WHO WERE TRANSPORTED UNDER AUTHORITY OF THE SAID ACT, BUT INCLUDE, ALSO, PERSONS (1) WHO TRAVELED TO A FOREIGN STATION AT THE EXPENSE OF THE UNITED STATES, EITHER MEDIATELY OR IMMEDIATELY, (2) WHO SO TRAVELED WITH THE UNDERSTANDING THAT THEY WOULD BE RETURNED AFTER THE COMPLETION OF THEIR ASSIGNMENT FOR WORK IN OR ON A GOVERNMENT ACTIVITY, AND (3) WHO, UPON RELIEF FROM SUCH ASSIGNMENT ON A WAR DEPARTMENT ACTIVITY, REQUEST TO BE RETURNED.

CITIZENS OF THE UNITED STATES WHO ARE EMPLOYED ON A WAR DEPARTMENT PROJECT WHILE RESIDING ABROAD, BUT WHO WENT ABROAD INITIALLY FOR PERSONAL OR BUSINESS REASONS, MAY NOT, UPON SEPARATION FROM SERVICE, BE FURNISHED RETURN TRANSPORTATION TO THE UNITED STATES UNDER THE ACT OF JUNE 5, 1942, AUTHORIZING THE SECRETARY OF WAR TO PAY THE TRANSPORTATION EXPENSES OF CIVILIAN EMPLOYEES TO AND FROM FOREIGN DUTY STATIONS, BUT IF THE POSITIONS TO BE FILLED ARE NOT CLASSIFIED AND THE SALARY RATES ARE NOT FIXED BY LAW OR REGULATION, TRANSPORTATION TO ANY AGREED POINT COULD BE PROVIDED AT THE END OF THE TERM OF SERVICE, NOT UNDER THE SAID STATUTE, BUT AS PART OF THE COMPENSATION FIXED IN ADVANCE FOR THE EMPLOYMENT.

IN THE LIGHT OF THE SAID DECISIONS, THERE WOULD APPEAR NO PROPER GROUND FOR OBJECTION TO THE TRANSPORTATION TO AND/OR FROM NAVAL STATIONS ABROAD, AS THE CASE MAY BE, OF DEPENDENTS OF THE CLASSES REFERRED TO IN YOUR LETTER--- NOT UNDER THE AUTHORITY OF THE 1943 STATUTE (SINCE IT DOES NOT AUTHORIZE THE TRANSPORTATION OF DEPENDENTS) BUT PURSUANT TO THE AUTHORITY FOR "TRAVEL OF DEPENDENTS OF EMPLOYEES TO AND FROM NAVY YARDS OR STATIONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES" GENERALLY, UNDER THE HEADING," OFFICE OF THE SECRETARY-- MISCELLANEOUS EXPENSES," IN THE NAVAL APPROPRIATION ACT, 1946, PUBLIC LAW 62, 59 STAT. 202. ACCORDINGLY, YOUR QUESTIONS (A) AND (C) ARE ANSWERED IN THE AFFIRMATIVE.

HOWEVER, WITH RESPECT TO THOSE DEPENDENTS ALREADY ABROAD WHO WERE NOT TRANSPORTED THERE UNDER A CONTRACT OR AGREEMENT CONTEMPLATING THEIR RETURN AT GOVERNMENT EXPENSE, THE SITUATION PRESENTED IS QUITE DIFFERENT. THAT IS TO SAY, SOME OF SUCH DEPENDENTS MAY NEVER HAVE BEEN IN THIS COUNTRY, AND OTHERS MAY HAVE GONE ABROAD FOR PERSONAL OR BUSINESS REASONS WITH NO PROPER EXPECTATION OF RETURN AT OTHER THAN THEIR OWN EXPENSE. BUT, IN ANY EVENT, THE PURPOSE OF THE DECISIONS OF OCTOBER 18, 1943, AND JANUARY 3, 1946, WAS TO MAKE IT POSSIBLE TO UTILIZE ABROAD THE SERVICES PERSONS RESIDENT IN THIS COUNTRY, AND WHOSE REQUIREMENT FOR TRAVEL AT GOVERNMENT EXPENSE IS NOT MOTIVATED BY PERSONAL DESIRE TO CHANGE THEIR (OR THEIR DEPENDENTS-) COUNTRY OF RESIDENCE, BUT BY THEIR WILLINGNESS TO SERVE, IN THE INTEREST OF THE UNITED STATES, AT WHATEVER DISTANT POINT THEY MAY BE NEEDED. HENCE, SO FAR AS DEPENDENTS "ALREADY OVERSEAS" WHO OTHERWISE ARE ENTITLED--- EITHER MEDIATELY OR IMMEDIATELY--- TO RETURN AT GOVERNMENT EXPENSE ARE CONCERNED, YOUR QUESTION (B) IS ANSWERED IN THE AFFIRMATIVE; OTHERWISE, IN THE NEGATIVE. EVEN IN SUCH CASES, HOWEVER, IF THE POSITIONS TO BE FILLED ARE NOT CLASSIFIED, AND THE SALARY RATES ARE NOT FIXED BY LAW OR REGULATION, TRANSPORTATION OF THE DEPENDENTS TO ANY AGREED POINT COULD BE PROVIDED AT THE END OF THE TERM OF SERVICE, NOT UNDER THE STATUTES ABOVE CONSIDERED, BUT AS A PART OF THE COMPENSATION FIXED IN ADVANCE FOR THE EMPLOYMENT. CF. 23 COMP. GEN. 280, 284.